WASHINGTON — Supreme Court justices signaled Wednesday they are inclined to strike down a Massachusetts law that sets a 35-foot buffer zone outside abortion clinics.
Anti-abortion activists called the law a violation of free speech that prohibits "peaceful conversation on a public sidewalk," said Mark Rienzi, an attorney representing self-described "sidewalk counselors," who stand outside clinic entrances and urge women seeking to end their pregnancies to change their minds. The case was filed by Eleanor McCullen, 77, of Boston.
An attorney for Massachusetts and the Obama administration defended the law as a reasonable way to deal with the violence and disruptions that have been seen at abortion clinics in the Boston area. They said abortion opponents are free to speak to persons who are walking down the street toward the clinic, but the law prevents them from getting close to the entrance.
"We are talking about the last four to five seconds before they enter the clinic," said Ian Gershengorn, a deputy U.S. solicitor general.
In their comments and questions, most of the justices appeared to agree with anti-abortion advocates who said a 35-foot buffer zone set by law goes too far. The court's conservatives, led by Justice Antonin Scalia, said they thought such a law clearly violated the 1st Amendment. Several of the liberal justices commented that the 35-foot zone may be broader than needed.
This "is a counseling case, not a protest case," Scalia insisted. "You could have a law against screaming .… These people want to speak quietly in a friendly manner."
The court's ruling could affect similar buffer zones used to protect government and military institutions and activities. Several justices noted federal law sets a quiet zone around military funerals. Other laws forbid persons from confronting those entering a polling place or a county courthouse. The Supreme Court enforces a no-protest rule on the marble plaza in front of its building.
In the 1990s, the high court upheld a judge's orders from Florida that barred anti-abortion activists from coming within 36 feet of the doorway of a clinic that had been the scene of loud demonstrations. And in 2000, the court in a 6-3 decision upheld a Colorado law that set a 10-foot buffer zone around abortion clinics.
Then, the three dissenters — Justices Anthony Kennedy, Clarence Thomas and Scalia — said the Colorado law violated the 1st Amendment. Former Chief Justice William Rehnquist and Justice Sandra Day O'Connor, who voted with the majority, have since been replaced by President George W. Bush's two appointees: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.
If they will join with their fellow conservatives in the Massachusetts case known as McCullen vs. Coakley, there will be a majority to either narrow or outlaw "buffer zones" on public sidewalks.
After brushing aside three other abortion-related cases in recent months, the Massachusetts case was seen as one of the last opportunities for justices to enter the debate during this term.