New York Times
by Adam Liptak
WASHINGTON — The Supreme Court appeared evenly divided on Wednesday as it heard arguments in a First Amendment challenge to a Massachusetts law that created buffer zones around abortion clinics in the state.
But a significant piece of data was missing: Chief Justice John G. Roberts Jr., who almost certainly holds the crucial vote, asked no questions. His earlier opinions suggest, however, that he is likely to provide the fifth vote to strike down the law.
The court’s four more liberal members asked questions indicating that they believed that the 35-foot buffer zones created by the 2007 law were a valid response to decades of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two in 1994.
“There was a considerable history of disturbances and blocking the entrance,” Justice Ruth Bader Ginsburg said.
Justice Stephen G. Breyer said the clinic setting might justify some limits on speech. “Everyone is in a fragile state of mind,” he said.
The lead plaintiff in the case, Eleanor McCullen, has said that she wants to engage in friendly conversations with women seeking abortions in an attempt to tell them they have alternatives. She added that the buffer zone frustrated her efforts and violated her First Amendment rights.
The court’s more conservative members questioned the need for the law, which they said was a blunt and selective instrument.
“This is not a protest case,” Justice Antonin Scalia said. “These people don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it.”
But Justice Breyer said that only a general prohibition on entering the buffer zone would work. “It’s just tough to say whether they’re counseling somebody or screaming at somebody,” he said.
The justices and the lawyers arguing before them tried to convey a sense of just how long 35 feet is, pointing to parts of the courtroom and people in it.
“I guess I’m just a little hung up on why you need so much space,” Justice Elena Kagan told Jennifer Grace Miller, an assistant state attorney general.
Ms. Miller, the state’s lawyer, said the buffer zone left ample opportunities for speech on other parts of the sidewalk near the clinics and in other places.
“No one is guaranteed any specific form of communication,” she added later. “There is no guarantee, as a doctrinal matter, to close, quiet conversations.”
This drew an incredulous response from Justice Anthony M. Kennedy. “Do you want me to write an opinion and say there’s no free-speech right to quietly converse on an issue of public importance?” he asked.
“In speech cases,” he added in a chastising tone, “when you address one problem, you have a duty to protect speech that’s lawful.”
Mark L. Rienzi, a lawyer for Ms. McCullen, said the law was unconstitutional for at least two reasons. In limiting its application to abortion clinics, he said, the law effectively singled out one subject. And in allowing clinic employees to stay in the zone, it favored one side of the debate, he added.
“Public sidewalks occupy a special position in First Amendment analysis,” he said, adding that his argument to the justices would sound very different shouted from 35 feet away, particularly if the opposing lawyer was allowed to argue from the usual spot.
Justice Samuel A. Alito Jr. seemed to agree that the law made impermissible distinctions among speakers based on their point of view.
Much of the argument in the case, McCullen v. Coakley, No. 12-1168, concerned how striking down the Massachusetts buffer zones would affect similar zones nationwide around funerals, slaughterhouses, fraternal lodges, political conventions, circuses and the sites of labor disputes.
The Supreme Court upheld a law similar to the one in Massachusetts by a 6-to-3 vote in 2000 in Hill v. Colorado, with Justices Scalia, Kennedy and Clarence Thomas dissenting. The court has four new members since then: Chief Justice Roberts and Justices Alito, Kagan and Sonia Sotomayor.
Chief Justice Roberts, though he asked no questions on Wednesday, has often been receptive to free-speech arguments, and he wrote the majority opinion in a 2011 decision overturning an award of damages for hateful protests near military funerals.
The 2000 decision upheld a Colorado law that established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent.
Massachusetts experimented with a similar law but later replaced it with a simpler one that, among other changes, eliminated the need to determine who approached whom and whether the listener consented.
Instead, the law barred everyone from entering fixed 35-foot buffer zones around entrances to reproductive health care facilities. There are exceptions for people going into or coming out of the buildings, people using the sidewalk to get somewhere else, law enforcement officials and the like, and clinic employees.