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Supreme Court Considers Legality Of Abortion Clinic Buffer Zones

Jan 15, 2014
Originally published on January 15, 2014 8:28 am

The U.S. Supreme Court hears arguments Wednesday in a case testing the constitutionality of buffer zones at abortion clinics.

Fourteen years ago, the court upheld Colorado's 8-foot "floating" buffer zones around individuals to protect patients and staff entering and exiting these clinics. Since then, buffer zones have prevented demonstrators from closely approaching patients and staff without permission.

But the issue is back before a different and more conservative Supreme Court.

The Massachusetts law prohibits anyone from standing within 35 feet of the entrance to a reproductive health care facility where abortions take place. That distance, the length of a school bus, takes the average person about 7 seconds to walk. And, according to the law, anyone can walk through it — as long as their purpose is to enter the facility or cross to the other side of the zone.

'Just Talk A Minute'

The zone is marked by a painted yellow line, and anybody who remains standing in it is asked to move outside the line.

Lead plaintiff Eleanor McCullen is a member of the anti-abortion group Operation Rescue and a part-time prison chaplain. She looks like a typical cheery grandmother, and has been standing outside a Planned Parenthood clinic in Boston every Tuesday and Wednesday for the past 13 years.

As McCullen describes it, she asks women to "just talk a minute before you rush in. You rush in so quickly, and then you come out in tears." She tells women: "There's another option other than taking the child, the small boy or girl, from the womb." And she says she and other Operation Rescue volunteers have provided housing, medical help, even baby showers to help women who decide not to have an abortion. On her refrigerator, she keeps photos of all of the babies she says she has saved.

But McCullen says the buffer zone violates her First Amendment rights and prevents her from communicating with complete effectiveness. "It's America," she says. "I should be able to walk and talk gently, lovingly, anywhere with anybody."

Inside the Planned Parenthood Clinic in Boston, officials say 90 percent of their work is primary care, contraception, cancer screening and gynecological services — not abortion. But because of the abortions that are performed, the clinic has considerable security.

And in the building's atrium stands a stark reminder of the darkest days for Planned Parenthood in Boston: a plaque dedicated to two clinic personnel killed by a gunman, who also wounded five others, in 1994.

Public Sidewalks And Polling Places

The Planned Parenthood League of Massachusetts is led by Marty Walz, a former member of the Massachusetts House of Representatives. In 2007, while in the state Legislature, she co-sponsored the buffer zone legislation now at issue. She compares the law with other buffer zone laws — in Massachusetts and many other states — enacted to protect people going to funerals, political conventions and polling places.

She contrasts the 35-foot buffer zone around the clinic with the "150-foot buffer zone around every polling place" in Massachusetts on Election Day. At polling places, even those handing out literature have to stay 150 feet from the entrance.

"There's even a buffer zone around the Supreme Court," Walz points out. In fact, the U.S. Supreme Court does ban all demonstrations, vigils, picketing and speech-making on its 252-by-98-foot plaza, allowing demonstrations only on the adjacent public sidewalk.

The court has justified its policy by saying the plaza is "not a traditional public forum," according to Catholic University law professor Mark Rienzi, who represents the anti-abortion demonstrators in Massachusetts. Whether or not one agrees with that distinction, he says, in contrast, "Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas." He asserts that evidence here shows that the abortion-clinic buffer zone makes it "much more difficult" to do just that.

Moreover, if demonstrators are such a threat to people at the clinic, he asks, why were there no prosecutions in the seven years before this law took effect? Massachusetts then had a 6-foot floating buffer zone, a provision similar to the one in Colorado that was upheld in 2000.

'An Issue Of Safety'

Law enforcement authorities and clinic personnel paint a different picture. They say the situation outside the clinic was frequently chaotic, with anti-abortion and pro-abortion rights demonstrators often toe to toe at the entrance, a scene one volunteer who helped escort patients into the clinic likened to linebackers on the 1-yard line.

"On a day-to-day basis there was an issue of safety, of people trying to get in the clinic being approached" and "physically harassed," says Massachusetts Attorney General Martha Coakley. At clinics outside Boston, she says, demonstrators routinely stuck literature through car windows as they approached, thus endangering both those in the car and the demonstrators themselves.

Lawyer Rienzi counters that "violence and obstruction and intimidation and harassment are already illegal," and that "the only new thing this law gets is the peaceful speech."

Not so, asserts Planned Parenthood's Walz. The 35-foot buffer zone is a reasonable time, place and manner regulation of speech — akin to regulating how loud you can play music at night. "Nothing else in our 30-year history has worked," she adds.

Prosecuting people after they've violated criminal statutes doesn't solve anything, Walz says. "What you want to do," she says, "is create an environment where people can get health care when they need it, when they have an appointment, rather than have them leave because they're afraid or blocked from getting in the door, and then seeking a remedy." At that point, "they've been deprived of access to health care."

The Legal Questions

At the Supreme Court on Wednesday, there are essentially two questions:

First, does the Massachusetts buffer zone law go too far, or is it permissible under the court's 2000 ruling allowing some buffer zones?

Second, should the court reverse that 2000 decision entirely? The vote in that case was 6-to-3, with the majority ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious. Justice Antonin Scalia delivered a rare and blistering oral dissent when the opinion was announced. "Does the deck seem stacked?" he thundered. "You bet."

He went on to say that "our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets."

Scalia and his fellow dissenters are still on the court. But most of the majority justices from 2000 are gone — replaced in some cases by more conservative justices. Most important, Sandra Day O'Connor has retired and been replaced by George W. Bush appointee Samuel Alito, who has a history of being unsympathetic to abortion rights.

For now, though, outside the Boston Planned Parenthood clinic, the scene remains fairly constant. Eleanor McCullen is there every Tuesday and Wednesday, sometimes standing far outside the buffer zone line. When asked why, she replies: "I go where the Holy Spirit leads me."

We'll know by summer where the legal spirit leads the Supreme Court.

Nick Fountain contributed to this report.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

RENEE MONTAGNE, HOST:

The U.S. Supreme Court today hears arguments in a case testing the Constitutionality of buffer zones at abortion clinics. It was 14 years ago that the high court upheld floating buffer zones to protect patients and staff going in and out of these clinics from protesters. Now the issue is back before a new and more conservative court. NPR's legal affairs correspondent Nina Totenberg went to one of the clinics at the center of the case in Boston.

NINA TOTENBERG, BYLINE: We're standing outside the Boston Planned Parenthood health center, and there's this yellow circle, semicircle, around it, and the buffer zone essentially extends from the front door to the end of the curb right in front. And at each critical place on this circle, on this very snowy, cold, wintry morning, there is somebody trying to encourage people not to have an abortion.

ELEANOR MCCULLEN: Hi, good morning. Can I give you our information this morning?

UNIDENTIFIED WOMAN #2: Sorry. Probably on the way out. I'm just getting birth control. I'll get it on the way out.

MCCULLEN: We're available if you have any questions.

TOTENBERG: That's Operation Rescue's Eleanor McCullen, the lead plaintiff challenging the Massachusetts law that imposes a 35-foot buffer zone, about the length of a school bus, around the entrances to abortion clinics. McCullen looks like the stereotypical cheery grandmother.

MCCULLEN: I have pictures on my refrigerator of many babies.

TOTENBERG: She's out here every Tuesday and Wednesday on her mission to prevent women from having abortions.

MCCULLEN: I need them here and safe. Let's just talk a minute before you rush in. You rush in so quickly, and then you come out in tears.

TOTENBERG: But she says the buffer zone interferes with her mission and is a violation of her First Amendment rights.

MCCULLEN: It's America and I should be able to walk and talk gently, lovingly, anywhere, with anybody.

TOTENBERG: You seem to be able to do a fair amount of that despite the yellow line, yeah?

MCCULLEN: Fair amount, but guess what? Could do more.

TOTENBERG: Inside the clinic we meet nurse practitioner Teresa Roberts.

TERESA ROBERTS: The vast majority of what we do is primary care, contraception, cancer screenings, and people generally feel safe. The buffer zone is one of the things that has helped patients feel safe, I believe. Okay, let's go take a look.

TOTENBERG: She takes us past a security guard, metal detector and several layers of electronically keyed access doors. And when we get to an atrium, there's a stark reminder of the darkest days for Planned Parenthood in Boston: In 1994, when a gunman killed two clinic personnel and wounded five others people.

Nurse Roberts reads a plaque honoring those killed.

ROBERTS: The tree in this atrium honors the memory of Shannon Lowney(ph) and Leeann Nichols(ph), dedicated December 30, 1997. That was the third anniversary of their deaths.

TOTENBERG: Eventually, we end up at the office of CEO Marty Walz.

MARTY WALZ: Hi, Marty Walz.

TOTENBERG: This is a new job for her. In 2007, while in the state legislature, she co-sponsored the buffer zone legislation at issue in the Supreme Court today. She knows that in Massachusetts and many states there are buffer zone laws to protect people going to funerals, political conventions and polling places.

WALZ: In Massachusetts there's 150-foot buffer zone around every polling place in the state. There's even a buffer zone around the Supreme Court.

TOTENBERG: Indeed, the U.S. Supreme Court bans all demonstrations, vigils, picketing and speech-making on its 252-by-98 foot plaza, allowing demonstrations only on the adjacent public sidewalk.

MARK RIENZI: What the court has said is that that plaza is not a traditional public forum.

TOTENBERG: Lawyer Mark Rienzi represents the anti-abortion demonstrators in Massachusetts.

RIENZI: Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas, and the evidence in this case shows that it is much more difficult to engage with women when you half to stand behind the line and either raise your voice to reach them or run around the line to try to catch up with them.

TOTENBERG: If demonstrators are such a threat to people at the clinic, he asks, how come there have been no criminal prosecutions for harassment or violence?

RIENZI: In a situation where over seven years you don't even have a conviction of somebody getting within six feet of somebody without their consent, that you don't have that big a problem.

MARTHA COAKLEY: But that begs the question, you see. The statute has been effective so there has been no need to do it.

TOTENBERG: That's Massachusetts Attorney General Martha Coakley explaining why there have been no prosecutions under this law or the previous law. She says that prior to the current law, the situation outside clinics was often unsafe.

COAKLEY: On a day-to-day basis there was an issue of safety, of people trying to get in the clinic being approached, harassed, physically harassed.

TOTENBERG: Lawyer Mark Rienzi sees the issue very differently.

RIENZI: Things like violence and obstruction and intimidation and harassment are already illegal. The only new thing that this law gets is the peaceful speech.

TOTENBERG: Not so, asserts Planned Parenthood's Walz. The 35-foot buffer zone is a reasonable time, place and manner regulation of speech, akin to regulating how loud you can play music at night.

WALZ: Nothing else in our 30-year history has worked.

TOTENBERG: Prosecuting people after they've violated criminal statutes doesn't solve anything, she says, because it happens after the fact.

WALZ: What you want to do is create an environment where people can get health care when they need it, when they have an appointment. Rather than have them leave because they're afraid or they're blocked from getting in the door, and then seeking a remedy.

TOTENBERG: At the Supreme Court today there will essentially be two questions. First, does the Massachusetts buffer law go too far, or is it permissible under the court's 2000 ruling allowing some buffer zones? Second is whether the court should reverse that 2000 decision entirely? The vote in that case was 6-3, with the court ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious.

JUSTICE ANTONIN SCALIA: Does the deck seem stacked? You bet.

TOTENBERG: Justice Antonin Scalia.

SCALIA: Our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets. I dissent.

TOTENBERG: Scalia and his fellow dissenters are still on the court. But most of the majority justices from 2000 are gone, replaced in some cases by more conservative justices. For now, though, outside the Boston Planned Parenthood clinic the scene remains fairly constant. Even we were caught up in the buffer zone when we stopped to talk to protester Bill Cotter (ph) .

Do you feel very constrained by these yellow lines?

BILL COTTER: Yes.

TOTENBERG: And as I started to ask my next question with my feet squarely inside the yellow line, a security guard came out. Hi.

UNIDENTIFIED MAN: How are you? You just have to be outside the line when you're doing this. Okay?

TOTENBERG: Oh, okay. All right.

UNIDENTIFIED MAN: All right? Thank you.

TOTENBERG: Not that this is an experience unusual for any reporter in Washington. We get moved around all the time. Indeed, even lead plaintiff Eleanor McCullen often stands far outside the buffer zone. You know, Eleanor, I noticed something. There is this yellow line, but you're well beyond it. You're another 12, 15 feet beyond it standing here.

MCCULLEN: Well, that's true.

TOTENBERG: And why is that?

MCCULLEN: Well, I move around. I go where the Holy Spirit leads me.

TOTENBERG: Where the legal spirit leads the Supreme Court, we'll know by summer. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.