NRL News

Supreme Court hears challenge to 35-foot “buffer zone” around abortion clinics

by | Jan 15, 2014


By Dave Andrusko

2010 US Supreme Court Class PhotoIn 2000, in Hill v. Colorado, a deeply divided Supreme Court upheld an 8-foot “floating buffer zone” around abortion clinics. In 2007 the state of Massachusetts enacted a law that extended its then-existing 6-foot “floating buffer zone” to 35 feet.

This morning the Justices heard McCullen v. Coakley, a challenge to the Massachusetts law brought by a 77-year-old grandmother who has stood outside a Planned Parenthood clinic in Boston every Tuesday and Wednesday for the past 13 years. According to virtually every media account, the High Court was “skeptical” or “deeply skeptical.”

In his account USA Today’s Richard Wolf wrote, “in fact, even liberal Justice Elena Kagan expressed doubts about the 35 feet, which she described as being the distance from the bench to the back of the marble courtroom. ‘Thirty-five feet is a ways,’ she said.” Kagan also said (according to the Washington Post) that she was “hung up” on why the zone needed to be so big.

The state’s position, backed by the Obama administration, is that the question is not one of free speech (the law, they argued, is “content neutral”) and was needed to prevent possible disruptions or violence.

But as Mark Rienzi, the attorney for the lead plaintiff, told NPR, “if demonstrators are such a threat to people at the clinic, why were there no prosecutions in the seven years before this law took effect” when Massachusetts had a 6-foot floating buffer zone?

Justice Antonin Scalia, Wolf reported, was “leading the charge against the law.” He complained, Wolf wrote,

“that the state calls those people ‘protesters.’ He referred to it a ‘counseling’ case and said the goal of the challengers was ‘to comfort these women.’

“By pushing abortion opponents… to what one litigator called basketball’s three-point range means that ‘what they can’t do is try to talk the women out of the abortion,’ Scalia said.”

According to Wolf Justice Anthony Kennedy

“said people who physically obstruct abortion clinics are different from those who peacefully talk to clients. The police, he implied, can handle the former and lay off the latter.

“’Even a dog knows the difference between being stumbled over and being kicked,’ Kennedy said.”

Representing the Obama administration, Deputy Solicitor General Ian H. Gershengorn

“said the restrictions were no different from protest-free zones that have been set up around funerals, circuses and political conventions.”

But some justices saw a difference between ”protesters” and those who offer to buy women baby supplies and provide support for women who choose not to have an abortion. That offer to help depends, they argued, on the ability for “quiet conversations.”

Categories: Judicial