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Abortion: Drawing the Line

October 16, 1996 at 12:00 AM EDT
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ELIZABETH FARNSWORTH: Now more on this case and other action at the court this week from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for coming, Stuart. Tell us about the arguments in the court today about this case.

STUART TAYLOR, The American Lawyer: They were very lively arguments today. The issue before the court focused on the so-called 15-foot floating buffer zone. The, the protesters did not appeal the order that said they can’t block people, grab people, shove people.

They were saying, we ought to have a right to go up to people and speak to them, hand them literature and so forth, and this 15-foot zone prevents us from doing that. Uh, the all–eight of the nine justices were jumping in during the arguments on one side or the other, and there are about three on each side, you can tell, and about three in the middle arguing back and forth with each other, using the justices as props.

And it was an exceptionally lively argument that way, a difficult one to call. I mean, in, in this case the court is fine-tuning a precedent it already laid down a couple of years ago in terms of it’s fairly clear that they can do–that the courts can do something to prevent protesters from unduly harassing women who want to go into the clinics. It’s also fairly clear they–they don’t–the courts don’t have carte blanche just to say you’ve got to stay 300 feet away, and the court is trying to decide in this case, you know, where to draw the line.

ELIZABETH FARNSWORTH: Does it make a difference that this is a case about an abortion clinic, if it were a heart clinic or something else, would it make a difference, do you think?

MR. TAYLOR: That issue was kicked around a lot in today’s arguments, and some of those who are–who want to protect the protesters more broadly were stressing that, hey, this injunction is much more restrictive than we would allow in say a labor picketing case or in a civil rights administration, there are some precedents that support that argument.

Coming back the other way, Justice Breyer in particular said a woman who’s pregnant who’s about to undergo a difficult medical procedure is someone who may deserve a little more protection in terms of anxiety-producing harassment than a strike breaker walking through a picket line. That was his essential point. It was very much disputed by some of the other justices, in particular, Kennedy and Scalia, and perhaps Justice O’Connor too.

I think the court is not likely to say and is very unlikely to say well, we’re going to have one set of rules for abortion clinic protests and another set of rules for all other forms of protest. But I think the, you know, uniquely sensitive nature of the abortion issue is certainly playing through their thinking in this case.

ELIZABETH FARNSWORTH: But do the precedents indicate that there probably will be some movement on the court’s part to limit some of the stricter aspects of the injunction?

MR. TAYLOR: It–walking out of the argument, I wouldn’t have bet money how it was going to come down, but it looked a little bit like they were going to trim this floating buffer zone. The 1994 precedent in a case called the Madison Case upheld a 36-foot fixed buffer zone around the clinic.

Here the fixed buffer zone is 15 feet, so presumably, it would be surprising if they strike that down. At the same time, that 1994 precedent struck down a 300-foot so-called “no approach” zone, but I thought the best harbinger of how this one may come out is Justice Souter, who was seemingly a little bit on both sides of the case, said, well, in essence, he said, it makes a lot of sense to have some kind of a fixed buffer zone so people can’t get close enough to shove, push, and harass, if that’s what they’re disposed to do.

On the other hand, he said, when you have these multiple floating buffer zones, with everybody anywhere near the clinic having this invisible 15-foot circle around them, it’s awfully hard for the protesters to know where they can go and where they can’t go, and it’s awfully hard for the police or the courts to know when it was violated and when it wasn’t violated. So he said, maybe we ought to have fixed buffer zones, not floating buffer zones, and I wouldn’t be surprised if that logic comes out in the decision.

ELIZABETH FARNSWORTH: The court also took up a state tribal conflict today, the Idaho Vs. The Couer De Lane Tribe of Idaho. What’s at stake here?

MR. TAYLOR: In the narrowest sense, it’s a dispute over rights of ownership and use to the Lake Couer De Lane and to the lake bed. The tribe claims under a grant by President Ulysses S. Grant that it’s theirs.

The state claims that under something called the Equal Footing Doctrine when they entered the union, it’s theirs. But the really big stakes in this case don’t have much to do with this lake.

The really big issue is whether the court will use this case to, uh, to build–put another brick on the states’ rights edifice it’s been building the last few years, in particular the issue, the main issue for the court is whether federal courts are barred entirely from hearing the tribe’s lawsuit against the state by the 11th Amendment, which generally speaking, bars certain kinds of lawsuits against states in federal court.

But there are exceptions, multiple exceptions to that doctrine, and the issue in the case is whether the court is going to shut off one of the exceptions and say sorry. At least if it’s a dispute over rights to real property, uh, the states have carte blanche without being second-guessed by federal courts.

ELIZABETH FARNSWORTH: And finally, turning to something the court did yesterday, it agreed to review a 1993 law aimed at proving government interference with religion. Tell us about the significance of that.

MR. TAYLOR: As someone who quoted in the newspapers said very well today, It’s two huge cases rolled into one. The court’s disposition of this case will have a very big impact on religious liberty in America and on how far it goes when it collides with state regulation.

And it will also perhaps have a big impact on the question of Congress’s power to second-guess the Supreme Court and impose new regulations on the Supreme Court in the name of the–I’m sorry–on states in the name of the Constitution that the Supreme Court itself has refused to impose.

ELIZABETH FARNSWORTH: Briefly, what are the facts? I know it’s hard to tell these facts briefly, but try.

MR. TAYLOR: In this small town in Texas, a Catholic Church was overcrowded; they were turning away people from the Mass because they didn’t have enough room. They wanted to expand.

They happened to be in a historic district. The town said no building permit, sorry you can’t expand, and, um, we’re treating you just like everybody else, was the town’s attitude; we wouldn’t let any–we wouldn’t let a hardware expand either. So the Church said, yeah, but we’re not a hardware store; we’re a church, and under this 1993 law, the Religious Freedom and Restoration Act, the Church said, if you do something to us that makes it harder for us to worship, um, you’re violating our federal rights. And so they sued under that logic and are claiming that the Religious Freedom and Restoration Act entitles them to the building permit.

Uh, the city is responding by saying the law’s unconstitutional. Um, the Supreme Court in 1990 in a court decision that lent to this new law had said generally speaking religious groups and churches are no more immune from state regulation than anybody else is, if it’s a broad neutral regulation. Um, in doing so, the court was cutting back on the previous decisions protecting religious liberty, and Congress didn’t like it. Congress passed a law in 1993, it was basically trying to say sorry, we disagree, we think religious liberty deserves more protection.

ELIZABETH FARNSWORTH: Well, thank you, Stuart. We’ll be having you back to talk about this and the other cases too.

MR. TAYLOR: Thank you.