Justices to Enter Abortion Clinic’s ‘Buffer Zone’ : Supreme Court: A case of ‘free speech versus free access’ at a surgical center is high court’s first chance to weigh aggressive protesters’ First Amendment rights.

For the past 15 months, the front line in the abortion war has been the narrow street that runs between the only abortion clinic in this coastal county and a neighboring home that is owned by Operation Rescue activists.

On Wednesdays and Saturdays, when surgery is performed at the Aware Woman Center, as many as 400 protesters regularly fill this street. Some kneel and pray at the driveway leading to the clinic. Some stand quietly and offer pamphlets to those who enter.

And many use more aggressive tactics. They swarm around approaching cars and shout to the women inside: “Mommy! Mommy! Don’t let them kill me!” They hold pictures of fetuses against car windows.

This week, the street next to the clinic will become the focal point for the year’s biggest legal battle in the abortion war.

The Supreme Court will hear arguments Wednesday on whether a judge has the constitutional power to impose a “buffer zone” around an abortion clinic to keep out anti-abortion protesters. Dubbed the case of “free speech versus free access,” it will mark the first time that the high court speaks directly on the First Amendment rights of anti-abortion protesters.

Over the past decade, the justices have been surprisingly silent on the issue as abortion protesters have clashed with police outside clinics in dozens of cities.

In its only written ruling touching on the subject, the court in 1988 upheld part of a Wisconsin town’s ordinance--designed to protect a local doctor from persistent anti-abortion protesters--that prohibited picketing on residential streets and in front of homes. In Frisby vs. Schultz, the court said picketing targeted at a particular home can be outlawed, but picketing on a public street must be allowed.

Since then, judges in at least 25 cities have been confronted with the question of when constitutionally protected protest crosses the line to become illegal harassment.

That issue is at the heart of the Melbourne case, Madsen vs. Women’s Health Center and Aware Woman Center, 93-880. Not only will the Supreme Court decide the constitutionality of a judge-imposed buffer zone, but it also may determine the fate of a pending federal law intended to protect abortion clinics from “intimidation” and “interference.”

The decision, due by July, could even affect the many new laws against “stalking.” Under these measures, judges often shield celebrities and others who have been the targets of harassment by requiring that their tormentors not approach within a certain distance.

The case before the high court took shape early last year when demonstrations at the Aware Woman Center rose in intensity, and both sides brought in reinforcements from around the country.

The Rev. Keith Tucci, the leader of Operation Rescue, had made Melbourne a training center for committed anti-abortion activists. They learned, among other things, how to use state records to trace automobile license plates in order to gain personal information, including the home addresses, of everyone who visited the clinic.

Clinic employees found themselves targeted both at work and at home. In February, one nurse said she was forced to move after a dozen protesters knocked at her door, confronted her three daughters and advised them to tell their mother to “stop killing babies.”

The protesters also jammed the clinic’s phone lines. They followed a physician into a hotel coffee shop and pointed him out as a “child murderer.” At night, they dumped a foul-smelling acid at the doorway of the clinic and put glue on door locks. In early March, after an abortion doctor in Pensacola, Fla., was shot and killed by an anti-abortion activist, two of three physicians who practiced at the Melbourne clinic quit, saying they feared for their lives.

“We have been living under mob rule,” said Patricia Baird Windle, owner of the clinic.

The year before, a state judge had issued an order prohibiting the abortion protesters from blocking the entrance to the Melbourne clinic or “physically abusing” its patients and employees. In late March, lawyers for the clinic sought a stronger order.

After a three-day trial, Judge Robert McGregor handed down a broad decree on April 8, 1993, that barred the anti-abortion protesters from demonstrating on the street or on the sidewalk next to the clinic. This area became part of a 36-foot buffer zone where protesters were prohibited from “congregating, picketing, patrolling or demonstrating.”

In addition, the judge said, the protesters may not come uninvited within 300 feet of a clinic employee or patient, whether at the clinic or at their homes. He barred the protesters from singing, chanting or making other loud noises while surgery was performed. He told police to trace calls from people trying to harass the clinic. Violators were to be arrested on the spot.

McGregor justified his order with evidence showing that the anti-abortion protesters “continue to impede and obstruct” the clinic’s operation and to “shadow and stalk” its employees. Moreover, the loud demonstrations threatened the medical well-being of the patients, he said.

He left the protesters free to make their views known by carrying signs, offering leaflets or chanting quietly on the far side of the street. That did not satisfy the protesters, who saw the order as a free-speech violation.

“We’re here to educate, not harass,” said Norma Munroe, a 62-year-old grandmother who regularly protests outside the Melbourne clinic. “It’s killing a baby, and I have a right to say it.”

Munroe said she and several dozen other demonstrators were arrested one Saturday simply for nonviolent protest on the public sidewalk. “I was kneeling and praying, and they arrested me,” she said.

The judge’s order “puts an absolute ban on peaceful free speech on a public street,” said Mathew D. Staver, an Orlando, Fla., attorney who is representing the abortion protesters before the Supreme Court. It “censors only pro-life speech,” he said, while permitting the clinic’s defenders to chant and sing songs on the sidewalk. The high court has often frowned on laws or judicial orders that discriminate against one message but not another.

Staver also cites a civil-rights era precedent in which the Supreme Court overturned an order by a Mississippi judge that punished blacks for organizing a boycott of white-owned businesses in 1966. Then, the high court said judges cannot punish “legitimate political expression” simply because some of the boycotters had used threats of violence.

But an attorney for the clinic counters that throughout U.S. history, judges and the police have been empowered to intervene when protesters go too far.

“This is not debate. It’s intimidation,” said Talbot D’Alemberte of Tallahassee, Fla., a nationally prominent First Amendment advocate and former president of the American Bar Assn. “If their purpose is to communicate a message, they can be heard” without resorting to harassment, he said.

Clinic staff members say their patients often arrive for surgery anxious and distraught, with their blood pressure elevated.

“For most of these women, this is the worst day of their lives. The screaming and the signs (of aborted fetuses) just punish them more,” said Phyllis Erwin, a local mother who became a volunteer “clinic defender” after learning through family research that her grandmother had died during an abortion.

D’Alemberte is relying on the series of rulings that have said picketing and protest can be restricted in its “time, place and manner.” For example, protesters outside a city hall or a courthouse have a right to make their views known, but police can forbid them to parade on the sidewalk directly in front of the entrance.

The Supreme Court has struggled with this issue, and its decisions have been divided. Two years ago, for example, the court on a 5-4 vote upheld state laws imposing a 100-foot zone around polling places where campaigning, even handing out leaflets, is forbidden.

In 1990, also on a 5-4 vote, the court upheld a U.S. Postal Service regulation that forbids soliciting or leafleting on sidewalks leading to a post office. Two years before that, however, the court on a 5-3 vote struck down a District of Columbia ordinance that prohibited unfriendly picketing within 500 feet of a foreign embassy.

Reflecting these conflicting precedents, the lower courts are divided on whether buffer zones are legal. Indeed, McGregor’s ordinance resulted in two opposing rulings.

In October, the Florida Supreme Court unanimously upheld the order, ruling that the restrictions on picketing near the clinic “were necessitated by clear abuse” by Operation Rescue.

But the same month, the U.S. appeals court in Atlanta struck down the judge’s order on a 2-1 vote. “On its face, the injunction appears to ‘criminalize’ various acts of peaceful protest, including the mere penetration of the buffer zone” by anti-abortion activists, the appeals court said.

Facing a possible damage suit for enforcing an unconstitutional order, the Melbourne police announced that they will not enforce the buffer zone--pending a final ruling by the Supreme Court.