Court Hears Abortion Foes’ Argument for Protest Rights

Antiabortion protesters, challenging efforts to limit their activities at abortion clinics, told the Supreme Court on Wednesday that their right to free speech allowed them to confront pregnant women on the sidewalks and urge them to reconsider what they were about to do.

“Speech-free zones” violate the 1st Amendment, attorney Jay Alan Sekulow, representing the protesters, said during oral arguments before the high court. “On public sidewalks, you will hear messages you don’t like, but [the Constitution] protects robust speech on a matter of public debate.”

The protesters are fighting a new round of laws and court orders designed to keep them away from clinic entrances. In Buffalo and Rochester, N.Y.--the origin of the case argued before the court Wednesday--a federal judge also ordered the protesters to stay 15 feet away from patients and staff outside the clinics.

The outcome of the case will probably reach well beyond abortion clinics to demonstrations involving causes such as gay rights and animal rights and possibly even to anti-stalking laws.

The nine justices appeared closely divided on the issue. Two years ago, the court upheld a 36-foot buffer zone outside a Florida abortion clinic on the theory that the demonstration-free zone was needed to allow patients and their cars to enter and exit.

Three justices--Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--dissented then, maintaining that the buffer zone violated the 1st Amendment. They will need two more votes to void the actions of the federal judge in the new case (Schenck vs. Pro-Choice Network, 95-1065).

The judge put a 15-foot “bubble zone” around the patients at clinics in Buffalo and Rochester. Protesters who insisted on confronting patients face to face could be arrested and held in contempt of court.

Justice Stephen G. Breyer wondered why the 15-foot separation barred the protesters from delivering their message. “We are 15 feet apart,” he told Sekulow. “How does that stop speech?”

“It’s hard to show someone a Bible from 15 feet away,” replied Sekulow, counsel for Pat Robertson’s American Center for Law and Justice.

An abortion-rights advocate said the case involved whether a “passionate mob” will be allowed to harass and intimidate women seeking abortions.

In 1990 and 1991, protesters physically “blockaded” clinics in upstate New York on several occasions, Lucinda M. Finley, a law professor at the State University of New York at Buffalo, told the justices. They also “grabbed, pushed, shoved and yelled” at patients on the sidewalk, she said.

Because of the 1st Amendment, she said, the patients accepted the inevitability of hearing an antiabortion message on their way to the clinic. But, she added, they should not have to endure “a face-to-face harangue” as they were about to undergo surgery.

Clinton administration lawyers also defended the judge’s order. “There is no speech silenced by this injunction,” acting Solicitor General Walter Dellinger told the court. The “keep-your-distance” order, he said, was based on the protesters’ pattern of “crowding and obstructing” pregnant patients.

The outcome may depend on Chief Justice William H. Rehnquist. Splitting from his conservative allies, he wrote the 1994 opinion upholding the buffer zone in the Florida case.

On Wednesday, he questioned attorneys sharply on both sides of the case and did not tip his hand. Since the justices are likely to be split on the outcome, a court opinion and the dissents seemed likely to be at least several months away.