The Supreme Court seemed likely Wednesday to strike down a Massachusetts law setting a 35-foot protest-free zone outside abortion clinics.
Liberal and conservative justices alike expressed misgivings about the law during arguments at the high court. They questioned the size of the zone and whether the state could find less restrictive ways of ensuring patient access and safety.
The case was brought forward by Eleanor McCullen, a woman in her mid-70s, and a group of other anti-abortion rights activists who stand outside of clinics to try to dissuade women from getting abortions.
“They are peaceful, non-confrontational, and do not obstruct access,” their brief before the court argues. “Yet, the State prohibits them from entering or standing on large portions of the public sidewalk to proffer leaflets or seek to begin conversations with willing listeners.”
The court - which bars protests on its plaza, but allows them on the public sidewalks - last considered abortion clinic protest zones in 2000, when it upheld a Colorado law by a vote of six to three.
Massachusetts first attempted to apply a “floating” buffer zone like the one in Colorado, but it was deemed ineffective, and the state changed the law in 2007. The state points out that protesters can still meaningfully engage with women before they enter the buffer zone -- McCullen herself has testified that since the law was changed in 2007 she’s convinced about 80 women not to terminate their pregnancies.brief, the state also pointed out Massachusetts abortion clinics were “routinely blocked” since the late 1980s. “Moreover, Massachusetts experienced ‘repeated incidents of violence and aggressive behavior’ at facilities, including a 1994 shooting in which two employees were killed and several other persons were injured.”
While McCullen may be a sympathetic character, abortion rights advocates argue that she’s not representative of the threat to clinic patients and employees. Abortion clinics have been targeted by arsonists, bombers and murderers, they point out.
“There is an intentional and very sinister attempt of the opposition and anti-choice extremists to change the face of clinic protesters from what we know them to be -- the kind of violent people who have threatened the lives of doctors and really go out of their way to intimidate women,” NARAL president Ilyse Hogue told reporters Tuesday. “This is a coordinated movement with a long history of violence towards women and doctors, and we couldn’t feel more strongly that this buffer zone has to stand.”
It seemed possible on Wednesday that there could be more than the five votes needed to strike down the law after Justice Elena Kagan said she was "hung up" over the size of the zone.
“I would be very, very surprised if the Supreme Court will now get engaged in the micromanagement of feet, whether it is yards or distances,” Massachusetts Attorney General Martha Coakley said outside of the court Wednesday. “They have said in the past that 36 feet is a reasonable distance.”
It was hard to tell whether the court might also upend its 2000 ruling in support of the Colorado zone, which has been criticized by free speech advocates for unfairly restricting protesters' rights. Since the Colorado case, four of the six justices in the majority have retired, while the three dissenters - Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, remain on the court. Thomas was silent Wednesday, as is his custom during arguments, while Kennedy and Scalia made clear their problems with the Massachusetts law.
Kennedy questioned whether other state and federal laws could not be used to accomplish the same goal of keeping access to the clinics open. "What's wrong with the physical obstruction statutes as an answer to the problems Massachusetts is facing?" Kennedy said.
Chief Justice John Roberts, normally an active questioner, did not ask a single question of any of the three lawyers who argued the case.
Justice Samuel Alito, meanwhile, appeared certain to vote to strike down the law. He agreed with the protesters’ argument that only those who oppose abortion rights are subject to the restriction, since the law exempts clinic employees from the rule.
The Obama administration is supporting Massachusetts and warning that limits on conduct near courthouses, polling places, homes and airports could be called into question if the court strikes down the law.