New York Times

The First Amendment protects the speech of short, elderly women and large and intimidating men equally, but you would be forgiven for thinking otherwise after oral arguments before the Supreme Court Wednesday morning. The case was McCullen v. Coakley, a challenge to a Massachusetts law setting a 35-foot buffer zone around reproductive-health clinics where abortions are performed.

The named plaintiff, Eleanor McCullen — all 77 years and 61 inches of her — has been standing outside such clinics for years, attempting to talk women out of getting abortions, and she says the law violates her First Amendment right to free speech. No one disputes that she is calm and peaceful and nonthreatening — at least in the usual sense.

Justice Antonin Scalia, in particular, seemed to take personal affront to any characterization to the contrary. “I object to you calling these people protesters, which you’ve been doing here during the whole presentation,” he said angrily to Jennifer Grace Miller, the state’s lawyer. “That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protesters?”

But the buffer zone isn’t there because of Ms. McCullen or her technique. It is a considered response by Massachusetts lawmakers to the years-long public-safety problem posed by congestion — intentional and unintentional — around clinic entrances by those who disagree strongly about a very emotional issue.

Even Justice Scalia conceded that “if it was a protest, keeping them back 35 feet might not be so bad.” Where Monday’s oral arguments turned on what a “recess” is, today’s seemed at times to turn on what a “protest” is. The question then would be at what point, and based on what evidence, a state may decide that what it faces is sufficiently “protest-like” to require a law that has a minor and incidental effect on speech.

The 2007 Massachusetts law was the last of multiple attempts over the years to deal with the disruptive and at times dangerous presence of both anti-choice and pro-choice advocates, some who cursed and shoved for position and some who chained themselves to doorways and surrounded arriving cars. (This history also includes bloodshed. In 1994, a man named John Salvi stormed Planned Parenthood clinics outside Boston, killing two employees.)

An earlier statute, a “floating” 18-foot zone modeled on a Colorado law the Supreme Court upheld in 2000, was quickly undermined by protesters who took advantage of its confusing boundaries. The record was replete with testimony from doctors and patients who were harassed and intimidated, and from police who found that neither the floating zone nor other existing state and federal laws were sufficient to keep the clinic entrances clear. Ms. McCullen herself admitted that certain other anti-abortion protesters are “over the top” and “counterproductive.”

The 35-foot buffer, in contrast, works — as does, by the way, the Supreme Court’s own, much larger buffer zone prohibiting protests on its grand plaza. Yet several justices seemed preoccupied with the idea that the law could have been more carefully crafted to distinguish between different types of activists. How exactly? Should the police ask people whether they plan to block the clinic’s entrance? Should they take height and weight measurements?

Justice Stephen Breyer, who unlike most of his colleagues has legislative experience, pointed out that “the obvious reason … you don’t write these fine statutes is that they won’t work. They have too fine a distinction. The activity is commingled.”

Speaking of measurements, Justice Elena Kagan — the most junior justice — still appears to be adjusting to her surroundings. At one point she suggested that 35 feet may be too big a buffer, comparing it to the size of the courtroom itself. “That’s a lot of space,” she said. She was quickly corrected by Justice Sonia Sotomayor, who pointed out that 35 feet is closer to the length of two parking spots. (Justice Kagan was not off by a just a little, either. According to the Court’s own website, the “dignified” chamber measures 82 by 91 feet.)

Justice Kagan’s error, like many of the other justices’ questions, betrayed an incomplete understanding of the reality on the ground, where women trying to enter health clinics sometimes find they must walk through a gauntlet of pushing, yelling activists of all stripes. Anyway, whether the zone is 6 feet or 18 feet or 35 feet isn’t the core issue. What anti-abortion protesters care about is stopping abortion, and from that perspective any hindrance at all is unacceptable.