Some of the justices seemed to challenge the Massachusetts law in oral arguments Wednesday (Jan. 15), questioning whether it protects free speech while seeking to limit obstructions outside the state's abortion centers.
Last January, the First Circuit Court of Appeals in Boston upheld a 2007 law that established a 35-foot zone around the entrances and driveways of abortion clinics. The measure bars pro-life sidewalk counselors from entering that zone to talk to women considering an abortion or scheduled for one unless those women provide consent.
The law protects the rights of patients while also ensuring pro-lifers could exercise their First Amendment rights, the appeals court said in its opinion. Pro-lifers contend, however, the scope of the buffer zone makes it almost impossible to speak to women going to the clinic.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC), which signed onto a friend-of-the-court brief in support of pro-life counselors, expressed hope the high court will defend free speech in its ruling.
"We need to pray the Supreme Court does the right thing in upholding freedom of speech for all, including for those of us who are convictionally pro-life," ERLC President Russell D. Moore said in a statement to Baptist Press.
Mark Rienzi -- representing Eleanor McCullen, a grandmother who had done peaceful sidewalk counseling with abortion-minded women for years before enactment of the Massachusetts law -- told the justices the broad principle in the case is "a law that makes it illegal to even engage in consensual conversation, quiet conversation, on a public sidewalk ... for which Mrs. McCullen can go to prison, I think, is not permissible under the First Amendment."
"That's an extraordinary power for the government to ask to selectively control speech among willing participants on public sidewalks," said Rienzi, senior counsel for the Becket Fund for Religious Liberty.
"It's a place where the government claims it can essentially turn off the First Amendment," he said.
At some of Massachusetts' abortion clinics, the only opportunity to communicate with an abortion-minded woman is to wave a flyer as she drives through an entrance to the center's parking lot, Rienzi told the court. "If you have to stand 35 feet back and do that, the evidence here shows there's essentially zero chance to reach that audience," he said.
Jennifer Miller, assistant attorney general for Massachusetts, told the justices that experience demonstrated "there had to be a certain amount of space around the facilities. What we had, for example, were pro-choice advocates swearing and screaming at pro-life advocates within the buffer zone.... You had the Pink Group, which is a pro-choice organization, pushing and shoving and jockeying for position."
Associate Justice Antonin Scalia countered by saying, "urely you could have a law against screaming and shouting within 35 feet or protesting within 35 feet. Isn't that more narrowly tailored? I mean, what this case involves, what these people want to do is to speak quietly and in a friendly manner, not in a hostile manner, because that would frustrate their purpose, with the people going into the clinic."
Associate Justice Samuel Alito posed a hypothetical case to Miller that appeared to indicate his doubt regarding the law's constitutionality.
"A woman is approaching the door of a clinic, and she enters the zone," Alito said. "Two other women approach her. One is an employee of the facility; the other is not. The first, who is an employee of the facility, says, 'Good morning. This is a safe facility.' The other one, who's not an employee, says, 'Good morning. This is not a safe facility.' Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they've expressed a different viewpoint. One says it's safe; one says it's not safe. Now, how can a statute like that be considered viewpoint-neutral?"
The Obama administration sided with Massachusetts in defense of the buffer zone. Ian Gershengorn, principal deputy solicitor general with the Justice Department, told the court the law "is simply a place regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another, in this case away from the small areas."
Associate Justice Anthony Kennedy joined Scalia and Alito in appearing to express skepticism about the law. Even Associate Justice Elena Kagan, certainly not considered a pro-life vote on the court, acknowledged the law has some problems, saying she is "a little bit hung up on why you need so much space."
Amy Howe, editor of SCOTUSblog and a former law school professor, wrote on the blog after the arguments that five of the justices -- Scalia, Alito, Kennedy, Chief Justice John Roberts and Associate Justice Clarence Thomas -- "may well be ready to strike down the law because it prohibits too much speech, such as the peaceful speech in which Eleanor McCullen wants to engage."
The ERLC joined in a brief by the Christian Legal Society that not only urged the Supreme Court to strike down the Massachusetts law but to reverse its 2000 opinion upholding a similar law in Colorado. The brief, which nine other religious organizations also signed onto, contended the Massachusetts law violates a sidewalk's legal status as a public forum open to peaceful assembly and speech.
The high court's 2000 opinion regarded a Colorado law that established a 100-foot zone around abortion clinic entrances. Inside that zone, a pro-lifer needs permission in order to get within eight feet of a person to counsel or distribute a handout.
The high court's opinion regarding the Massachusetts law could affect ordinances in several major U.S. cities that have enacted similar buffer zone measures.
The Supreme Court is expected to issue its ruling in the case, McCullen v. Coakley, before it adjourns in late June or early July.
Tom Strode is Baptist Press' Washington bureau chief. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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