Justices Question Buffer Zone at Abortion Clinics
By Joan Biskupic
Supreme Court justices yesterday expressed skepticism about the constitutionality of a local judge's order keeping antiabortion demonstrators 15 feet away from pregnant women entering or leaving health clinics.
The comments came during oral arguments in a case involving protester blockades of health clinics in Buffalo and Rochester, N.Y., and testing the First Amendment limits on a judge's ability to keep the peace and protect women seeking medical care.
The question is how far a judge may go in shielding women and clinic staff from antiabortion protesters' screaming, shoving and sometimes worse. The issue has become central to abortion-related cases at the high court since 1992, when the justices reaffirmed a woman's right to abortion, and has gained national attention as some protests have turned violent and even deadly.
At one point in the arguments yesterday, Solicitor General Walter E. Dellinger, appearing on behalf of the Clinton administration and supporting the clinics, asked what else a local judge could do when faced with evidence of patient intimidation and crowding.
"What's a trial judge supposed to do?" he asked.
"One of the things he's supposed to do is read the First Amendment," Justice Anthony M. Kennedy rejoined, referring to the right of free speech.
Justice David H. Souter observed that "floating" zones around people coming and going are more difficult for police to enforce than fixed zones around a clinic building. In the latter, he said, people "know what the line is."
The justices ruled in 1994 that judges can establish "buffer zones" to prevent demonstrators from obstructing clinics but they cannot restrict "more speech than necessary" to protect access to medical care or serve any other significant government interest. In that 1994 Florida case, the justices upheld a fixed 36-foot, no-protest zone around a clinic building.
Yesterday, Jay Alan Sekulow, representing New York antiabortion protesters, said, "Whatever one thinks of abortion . . . there are respectful reasons for opposing it." He argued a federal judge's order regulating conduct at the Buffalo and Rochester clinics impinged on protesters' speech rights.
The order, barring activists from blocking access to facilities and harassing patients and staff, kept demonstrators from within 15 feet of a clinic entrance and established a 15-foot "floating" zone to protect anyone arriving or leaving.
The latter provision, subject to heated debate yesterday, allows no more than two protesters to enter the zone and requires that they retreat if the woman or anyone else approached asks them to leave.
Justice Stephen G. Breyer observed that Sekulow was about 15 feet from the justices' bench and he was able to communicate his message. Why did protesters need to be closer, Breyer asked.
Sekulow said the streets of Buffalo are not as staid as the courtroom and that the antiabortion message was more effectively communicated in a "one-on-one" fashion. He added a person cannot point to a Bible passage or hand someone a leaflet from 15 feet.
Sekulow insisted the court order was too broad, in part because it covered not only pregnant women but anyone going into the clinic, including, he said, the copier repairman.
Representing the Pro-Choice Network of Western New York, which had sought the court order after numerous antiabortion demonstrations in the early 1990s, Lucinda Finley emphasized the need for quiet atmosphere at clinics.
She referred to persistent "crowding and grabbing" that had occurred.
Chief Justice William H. Rehnquist asked whether Finley was proposing "some special rule" for clinics that would differ from court orders at other protest sites. Finley noted the high court's 1994 ruling, written by Rehnquist, stressed government interest in protecting women's access to health care.
Finley highlighted the emotional stress a pregnant woman feels as she approaches a health clinic swarming with protesters. But Kennedy, who had dissented from the court's 1994 ruling, observed workers who cross a picket line similarly face emotional distress.
A ruling in the new case of Schenck v. Pro-Choice Network is expected before the court recesses next June.
© Copyright 1996 The Washington Post Company