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Supreme Court weighs clash between freedom of speech, abortion rights

January 15, 2014 at 6:09 PM EDT
In Massachusetts, a 35-foot restricted area outside of abortion clinics give patients and staff a buffer zone from protesters. But as Kwame Holman reports, some say the law restricts the freedom of speech of abortion opponents. Judy Woodruff gets a view from inside the courtroom from Marcia Coyle of the National Law Journal.

JUDY WOODRUFF: Free speech and abortion rights clashed today at the Supreme Court.

NewsHour correspondent Kwame Holman starts with some background.

KWAME HOLMAN: The case grew out of complaints by anti-abortion demonstrators at this Planned Parenthood clinic in downtown Boston.

MAN: If you look at that yellow line, it actually puts us out on the street, so we’re apt to get hit by a car or a bus or whatever.

KWAME HOLMAN: That painted yellow line marks a 35-foot buffer zone required by Massachusetts law since 2007 at sites where abortions are performed. Crossing it could mean two-and-a-half years in prison for a protester, although no one has been prosecuted under the law.

Seventy-six-year-old Eleanor McCullen leads the fight to overturn the law and attended today’s arguments. She says the restriction stifles the free speech rights of abortion opponents trying to dissuade women from going inside.

ELEANOR MCCULLEN, plaintiff: They want to stop, but they — they — they want to go in too. They have an appointment. And they’re mixed up, and if I just had another like two minutes or three minutes, that’s all I need, but when I’m cut off, it’s very, very frustrating.

KWAME HOLMAN: The Massachusetts attorney general, Martha Coakley, answers that the law lets protesters have their say, while protecting clinic clients and staff from harassment.

MARTHA COAKLEY, Massachusetts Attorney General: This particular statute has struck the appropriate and constitutional balance between access, which is also constitutionally guaranteed for people, public safety, which is a huge issue to make sure that no one is hurt or disrupted in their activities, and that of those protesters, those who want to be heard. They do have a right to speak. We know it is not unlimited.

KWAME HOLMAN: The Supreme Court last ruled on the issue in 2000, when it upheld a different-sized buffer zone in Colorado. In addition to Colorado and Massachusetts, Montana also has an abortion clinic buffer zone law. And a handful of cities have imposed restrictions, with varying standoff distances spelled out.

Many of the laws were enacted after a spate of violence at women’s health facilities during the 1990s. Shooting attacks at two clinics in Brookline, Massachusetts, in 1994 killed two people and wounded five.

JUDY WOODRUFF: As always, Marcia Coyle of The National Law Journal was in the courtroom this morning, and she is back with us tonight.


MARCIA COYLE, The National Law Journal: Hi, Judy.

JUDY WOODRUFF: … good to you have back with us.

MARCIA COYLE: Thank you.

JUDY WOODRUFF: So, tell us, Marcia, a little bit more about what this case is about, what each side is arguing.


Well, really, it’s two arguments, in a sense. The challengers to the Massachusetts law claimed that the law itself is what we call content-based. It discriminates on the basis of viewpoint, that its effect of the buffer zone is really to curb the speech of people who do not support abortions.

It also — they also argue that it’s not a narrowly tailored law, which is really one of the requirements under the First Amendment if government wants to regulate speech, that the buffer zone is around only abortion facilities, and not even all the — not even — it’s around facilities that some don’t even have problems with demonstrators or protesters.

And, finally, they argue that the government has other tools available to deal with the problem that it says and argues is why it has the law that it has. It can get injunctions from courts. It can have police move people.

On the other side, the state is saying, look, this is not viewpoint discrimination. What we are regulating here is conduct. The problem is congestion, too many people on the sidewalk, too many people trying to approach women and relatives in cars as they drive into the parking lot.

They say it’s narrowly tailored because the challengers do have the ability to speak to women coming into the clinic. Really, what they are objecting to, they say, is basically seven to 10 seconds that a woman walks from the yellow line to the entrance of the clinic.

And those other alternatives, Massachusetts says it has found they do not work, which is why they amended their law in 2007 with this particular buffer zone.

JUDY WOODRUFF: Seven to 10 seconds.

So, what are the — what are the constitutional questions then that the justices are looking at? And what were they saying today?

MARCIA COYLE: Well, the justices first probed the lawyer for the challengers, Mark Rienzi. And they were questioning basically how far does he go here with his arguments over a buffer zone? Are all buffer zones problematic under the First Amendment?

There are buffer zones, they said, for example, around funeral services to military funeral services, buffer zones around certain public forums that are going to have political events or even entertainment events.

And Mr. Rienzi said that actually he does think that there are First Amendment problems with buffer zones, but he said the government has to make a very strong record as to why they need it. And that record, he claims, wasn’t made by Massachusetts for this particular buffer zone.

JUDY WOODRUFF: And did Massachusetts — did the attorney for the state of Massachusetts come back on that point?

MARCIA COYLE: Yes, she did.

And she was probed by the justices as well. They wanted to know, for example, why 35 feet? In fact, Justice Kagan said at one point in the argument she was a little hung up on how large that is. And the Massachusetts attorney said, look, the legislature looked at other buffer zones that had been upheld by courts, 50 feet, 36 feet, 15 feet, and then decided that 35 is what was going to work here.

And she also pushed back on whether too much speech is curbed. For example, in the record — and Massachusetts attorney feels they made a very — the legislature made a very thorough record of the problems here — Ms. McCullen, who brought the challenge, has said that she was able to speak with and deter roughly 80 women from the time the law went into effect 2007 until today, and that’s not curbing speech.

JUDY WOODRUFF: And I gather that they even got into, the justices did, talking about what exactly is the distance…


MARCIA COYLE: Well, it was a little surprising, Judy, that some of them don’t seem to really know what 35 feet is.

Mr. Rienzi at some point said, it could extend from the court’s bench to the back of the courtroom, and the courtroom is much longer than that buffer zone. The deputy solicitor general for the Obama administration supporting the state of Massachusetts described it as an NBA three-point zone.

JUDY WOODRUFF: And we left it at that? It was left at that?


I think there is a dispute about how big 35 feet is, as well as really how much speech it actually curbs. That is the guts of the case.

JUDY WOODRUFF: All right, Marcia Coyle, thank you.

MARCIA COYLE: My pleasure.