January 16, 2014 — The Supreme Court justices on Wednesday seemed "evenly divided" over the constitutionality of a Massachusetts law that prohibits protests within 35 feet of abortion clinics, although Chief Justice John Roberts -- likely the decisive vote -- remained silent, the New York Times reports (Liptak, New York Times, 1/15).
The law, enacted in 2007, only permits people to enter a 35-foot zone around clinics to access the facility itself or reach another destination (Women's Health Policy Report, 1/13).
In 2000, the Supreme Court voted 6-3 to uphold a Colorado law that established a 100-foot buffer zone outside all health care facilities in which people are not allowed to approach others within eight feet for protest, education or counseling without consent. However, the court has four new members since that ruling: Roberts and Justices Samuel Alito, Elena Kagan and Sonia Sotomayor (New York Times, 1/15).
On Wednesday, the court heard oral arguments from attorneys representing the law's challengers, the state of Massachusetts and the federal government, which is siding with the state. A decision is expected by the summer (Totenberg, "All Things Considered," NPR, 1/15).
According to the Times, the court's liberal members generally appeared to back the law as a reasonable response to threats and violence -- including two shootings in 1994 -- at abortion clinics in Massachusetts. However, the court's conservative wing was skeptical and seemed receptive to the argument that the law selectively restricts one point of view.
Plaintiffs' Key Arguments
Plaintiffs' attorney Mark Rienzi, a law professor at the Catholic University of America, said the law is unconstitutional because it only applies to abortion clinics and favors one side of the abortion-rights debate by allowing clinic employees to enter the buffer zone (New York Times, 1/15). He added that the buffer zone requirement violates his clients' First Amendment rights to free speech and forces them to raise their voices to speak to the woman visiting the clinic.
The state could use other methods to deter disruptive or aggressive protesters, he argued, adding, "There is no reason to believe the police can't simply say, 'Move out of the doorway'" (Bravin, Wall Street Journal, 1/15).
However, Ginsburg said, "Massachusetts must consider the "considerable history of disturbances and blocking the entrance," and it "doesn't know in advance who are the well-behaved people and who are the people who won't behave well ... and after the disturbance occurs, it's too late" (Barnes, Washington Post, 1/15).
Massachusetts' Key Arguments
Massachusetts Assistant State Attorney General Jennifer Grace Miller argued that the buffer zone is needed because the state has "a long history of crowds around these [abortion clinic] doors or even of violence" (Wall Street Journal, 1/15).
She added that antiabortion-rights activists are still free to protest in public spaces close to the clinics but argued that there is no constitutional "guarantee ... to close, quiet conversations."
In response, Justice Antonin Scalia said, "This is not a protest case ... If it was a protest, keeping them back 35 feet might not be so bad. But what they can't do is try to talk the woman out of the abortion. It's a counseling case" ("All Things Considered," NPR, 1/15).
Justice Samuel Alito suggested the law discriminates against abortion-rights opponents, noting that clinic workers are permitted to welcome a patient by saying, "Good morning. This is a safe facility," while protesters could not say, "Good morning, this is not a safe facility." He added, "The only difference between the two is that they've expressed a different viewpoint," he said (Wall Street Journal, 1/15).
Federal Government's Arguments
U.S. Deputy Solicitor General Ian Gershengorn presented arguments for the federal government. He said the court has never held that individuals are entitled to their choice of method of communication.
He also compared the law to similar statutes, such as buffer zones around meat processing plants or a Massachusetts law that aims to protect delegates entering political conventions. Such laws are justified when there "is a massing of people that prevents the orderly ingress and egress to and from the facilities," Gershengorn said, adding that in this case, "the purpose was to clear the entrances" ("All Things Considered," NPR, 1/15).
USA Today Editorial, Opinion Piece Analyze Case
USA Today on Thursday published an editorial and an opposing opinion piece debating how the Supreme Court should rule on the Massachusetts law.
The editorial argued that the law should be upheld because it manages a careful and constitutional "balance between the rights of abortion opponents to be heard and the rights of patients to be able to enter the clinic" safely (USA Today, 1/16).
In the opinion piece, Jay Sekulow, chief counsel of the American Center for Law and Justice, called the law an attempt "to ban unpleasant conversations" and argued that it should be overturned because abortion providers do "not have a right to operate free from peaceful disagreement" (Sekulow, USA Today, 1/16).