Justices Rule Abortion Protest Is Free Speech

In a victory for abortion protesters, the Supreme Court ruled Wednesday that these demonstrators have a free-speech right to confront pregnant women on the sidewalks outside clinics and to strongly urge them not to undergo the procedure.

The 8-1 decision calls into doubt a wave of new city ordinances and judges’ orders that have barred persistent protesters from confronting and harassing doctors, nurses and patients outside clinics. It may also threaten laws that go too far in prohibiting panhandlers from confronting pedestrians and asking them for money.

There is no “generalized right to be left alone on a public street or sidewalk,” said Chief Justice William H. Rehnquist. Rather, picketing, leafleting and loud protesting “are classic forms of speech that lie at the heart of the 1st Amendment,” he said.

Certainly, sidewalk protesters have no right to grab, push or stand in the way of persons heading to an abortion clinic, the court said, nor may they trespass on its property. However, they do have a right to shout and chant and confront persons on public property, the justices added.

The ruling was not a total defeat for abortion clinics. The justices reaffirmed a 1994 decision that creates a protest-free zone at the doors or driveways of abortion facilities.

These so-called “fixed buffer zones” are sometimes needed so that patients and staff can enter or exit embattled clinics, the court had said in a Florida case known as Madsen vs. Women’s Health Clinic.

By a 6-3 vote, the court restated that view Wednesday, and upheld a judge’s order imposing a 15-foot protest-free zone at the doors of abortion clinics in Buffalo and Rochester, N.Y.

But more important, the justices refused to extend that notion to allow a 15-foot “floating bubble zone” around patients and staff on the sidewalks approaching the clinics.

Some judges have imposed such orders to deal with aggressive protesters who push and shove patients and scream in their faces. In the upstate New York case that came before the court, a judge imposed a bubble-zone order after Operation Rescue activists tried to shut down abortion clinics in Buffalo.

Nonetheless, Rehnquist said that such a “broad prohibition” on free speech on the sidewalks would affect not just “in-your-face yelling” but also quiet conversation and the passing out of leaflets.

“We strike down the floating buffer zones around people entering and leaving clinics because they burden more speech than is necessary” to protect the public safety, the free flow of traffic on the sidewalks and the woman’s right to obtain an abortion, the chief justice said.

Jay Sekulow, counsel for the American Center for Law and Justice, called the decision a “resounding victory” for free speech and the antiabortion movement.

“This decision clearly means that the 1st Amendment applies to the pro-life message, and there is no longer an exception to the free-speech clause when the issue deals with abortion,” said Sekulow, who represented the protesters.

The Rev. Paul Schenck, the antiabortion leader who appealed the case to the high court, called the decision “a victory for all people of conscience who object to the wanton killing of innocent human beings.”

Several abortion-rights advocates put the best face on what was a disappointing decision for them. They stressed that the court had again upheld “fixed zones” that keep protesters from badgering persons entering abortion facilities.

They also noted that the court’s opinion leaves open the possibility that further protective measures would be allowed if they were shown to be needed in specific cases.

“While we respect the high court’s decision, we reiterate that opposition to abortion is not a license to threaten, harass or intimidate doctors and women,” said Kate Michelman, president of the National Abortion and Reproductive Rights Action League.

It is not easy to draw a clear line in law between forceful free speech and harassment and intimidation, noted Steven R. Shapiro, legal director for the American Civil Liberties Union.

“The court has set a pretty sensible balance between the 1st Amendment rights of the protesters and the rights of women to receive reproductive services free of intimidation,” Shapiro said. “This is a matter of competing rights and in a difficult situation they did the right thing,” he said.

Only Rehnquist spoke for the court in the case (Schenck vs. Pro-Choice Network, 95-1065) and his opinion is tentative at several points. For example, he said that a “zone of separation” between protesters and patients might be legal in some instances to protect women from “abusive conduct” but he did not say what would be needed to justify such an order.

In the New York case, the protesters had engaged in “aggressive and sometimes violent conduct,” Rehnquist conceded, but he concluded that was still not enough to justify a “bubble zone” around these patients.

Dissenting alone, Justice Stephen G. Breyer voted to uphold the order that kept the demonstrators 15 feet away from the patients and clinic staff. Meanwhile, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas voted to strike down the entire injunction, including the provision that prohibited protests within 15 feet of the clinic’s door.

In Los Angeles, an ordinance enacted in 1995 has allowed the Los Angeles Police Department to establish buffer zones of up to 50 feet around clinics during protests.

While local Planned Parenthood officials were pleased that the court upheld the buffer zone, they were dismayed that the so-called 15-foot “bubble zone” around patients and clinic staff members was struck down.

“We don’t want anyone to harass our patients or staff,” said Deni Robey of Planned Parenthood of Los Angeles. “The court is relying on the decency of the protesters to leave the patients alone and historically that hasn’t been the case. . . . We will continue to pursue legislative and legal avenues to ensure that our patients and staff are safe.”

Nicole Perlman, vice president of the National Organization for Women in Los Angeles, said that the court’s action was disappointing.

“The court is saying you can be harassed,” Perlman said. “It’s an insult to women. . . . Patients are at risk of being ambushed by zealots.”

Times staff writer Matt Lait in Los Angeles contributed to this story.

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