Taking up a recurring clash between the rights of abortion protesters and women seeking access to health clinics, the Supreme Court heard arguments yesterday over a Colorado law that requires demonstrators to stay at least eight feet away from people entering and leaving clinics.
Jay Alan Sekulow, representing three "sidewalk counselors" who mounted a First Amendment challenge to the 1993 law, told the justices it unconstitutionally restricts "free speech on a public sidewalk." But Colorado Solicitor General Michael E. McLachlan said the state was validly acting to protect people needing medical treatment from hostile confrontations.
The case appears to be a close one for the justices. Several remarked that an eight-foot "zone" around people approaching a clinic is not likely to interfere with a protester's message. "You certainly can convey anything you want to convey orally from eight feet," said Justice Sandra Day O'Connor.
But some justices also raised concerns that the law was too broad and could, if upheld, set a bad precedent for other picketing and demonstrations. Justice Anthony M. Kennedy called the law "troublesome" and the state's rationale "whimsical and imprecise."
The law applies within a 100-foot radius of any medical clinic entrance and stops protesters from getting within eight feet of individuals approaching the facility, unless the individual consents to the contact or to take a leaflet.
This is the court's third review in six years of restrictions on antiabortion protests. In 1994 the court upheld "buffer zones" around clinic entrances. In 1997 it distinguished between fixed and "floating" buffer zones, allowing a 15-foot zone around clinic entrances but striking down a provision that kept protesters from going within 15 feet of patients and staff.
What's different about the "floating" zone in this case is that it's narrower and was adopted by a state legislature, not by a judge. In upholding the law, the Colorado Supreme Court pointed to extensive hearings in the General Assembly about tensions and violence at clinics, locally and nationwide.
Yesterday's arguments were heard against the backdrop of continued controversy over a woman's right to end a pregnancy, arising from the court's Roe v. Wade decision handed down 27 years ago this week. Last week the justices said they will revisit how far states can go in regulating abortion, specifically state bans on what critics call "partial birth" abortion.
Some justices challenged Sekulow's assertion that Colorado was trying to squelch "unwelcome speech."
"Isn't there something different about a hospital?" Justice Ruth Bader Ginsburg asked. Justice Stephen G. Breyer referred to the history of women being harassed outside abortion clinics.
"There is not a First Amendment health care exemption," said Sekulow, chief counsel for the antiabortion American Center for Law and Justice.
McLachlan, supported by a Justice Department lawyer yesterday, said the state's interest in protecting the medical access of particularly "vulnerable" people is overriding.
Outside groups have entered the fray in Hill v. Colorado, including 18 states that sided with Colorado. The AFL-CIO and the American Civil Liberties Union support the protesters.
The Supreme Court yesterday:
* Upheld the death sentence of a man who murdered a Virginia state trooper.
Weeks v. Angelone, 5-4 vote
* Made it easier for court-appointed lawyers to refuse to file appeals of criminal convictions for clients whose claims they think are frivolous.
Smith v. Robbins , 5-4 vote
* Ruled that a runoff election is not required to determine Guam's governor.
Gutierrez v. Ada, unanimous
* Ruled that criminal defendants' convictions need not be thrown out every time a trial judge mistakenly fails to remove a potential juror who showed signs of bias.
U.S. v. Martinez-Salazar, unanimous
SOURCES: Wire and staff reports
CAPTION: Under Colorado law, antiabortion protesters like these in Denver must stay eight feet away from patients entering or leaving a clinic.