WASHINGTON – Supreme Court justices Wednesday questioned the fairness of a Massachusetts law that creates restrictive zones around abortion clinics, pitting First Amendment rights against obstruction statutes.

The court weighed the state’s history of disturbances near entrances of abortion providers against the right of nondisruptive individuals to express their views in a public forum. The justices seemed divided on the issue, closely questioning both sides. Chief Justice John Roberts, viewed as a conservative, remained silent during the arguments.

Established in 2007, the state’s selective exclusion law creates a 35-foot buffer zone around reproductive health clinics, with exceptions for employees, law enforcement and those exiting or entering the facilities. The law was enacted a few years after a 1994 shooting rampage at an abortion clinic in Brookline, Mass., killed two employees and injured five other people.

Proponents of the law say it is meant to prevent congestion around facilities. Anti-abortion activists, including those wishing to peacefully dissuade women on their way in to obtain abortions, argue that the law restricts their right to free speech and leafleting on public sidewalks.

Based on the state’s record of disturbances around abortion clinics, the law served as a “permissible response by the Massachusetts legislature to what it reasonably perceived as a significant threat to public safety,” according to the appeals court that upheld the statute.


Abortion rights activists from the National Organization for Women gather outside the Supreme Court, which heard arguments on Wednesday about the constitutionality of Massachusetts’ abortion clinic buffer zone law.

Eleanor McCullen and several other anti-abortion activists brought the case against Massachusetts Attorney General Martha Coakley in early 2008. Federal district and appeals courts upheld the law, determining it did not discriminate against those who oppose abortion.

Besides providing physical safety, the law protects women seeking abortions who may be in a “fragile state of mind,” Justice Stephen Breyer said during Wednesday’s arguments.

Justice Ruth Bader Ginsburg questioned the narrowness of the law, noting the difficulty police face in trying to “screen people for who will be well behaved and who will be disruptive.”

However, Justice Antonin Scalia rejected Massachusetts Assistant Attorney General Jennifer Grace Miller’s characterization of the petitioners as protesters, saying many simply want to counsel women on the verge of obtaining an abortion.

“It’s a counseling case, not a protest case,” he said.

Justice Anthony Kennedy highlighted the “duty to protect speech that’s lawful,” but Ian Gershengorn, deputy U.S. solicitor general, argued that instead of banning speech, it simply “moves it from one place to another.”

Mark Rienzi, McCullen’s attorney, emphasized the public forum aspect of sidewalks as long as individuals remain nonviolent. The buffer zone law effectively empowers the “policing of one particular idea” and gives the government “enormous power to interfere with the marketplace of ideas,” he said.

The justices disagreed on the point. Ginsburg noted that the law applied to all speech within the zone regardless of content. But Justice Samuel Alito said it created a situation where an employee could say the facility was safe within the zone, while an anti-abortion activist would be unable to say the opposite.

A previous version of Massachusetts’ buffer zone law, enacted in 2000, created a fixed zone of only 18 feet along with a 6-foot “floating zone” around patients walking into clinics. The distance was extended to 35 feet in 2007 when the state updated the Massachusetts Reproductive Health Care Act. When the court debated whether 35 feet was an arbitrary distance, Justice Elena Kagan said she was “a little bit hung up on why you need so much space.”

Terry O’Neill, president of the National Organization for Women, pointed out the irony of the case in light of the buffer zone barring demonstrators from coming within 100 feet of Supreme Court building. Buffer zones exist in numerous other places, including polling areas and veterans hospitals, she said.

In 2000 the Supreme Court upheld a similar Colorado law, which regulated speech within 100 feet of health care facility entrances.