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Tuesday, January 14, 2014

Abortion Clinic Buffer Zone Faces Court Challenge

The U.S. Supreme Court hears oral argument tomorrow in a challenge to a Massachusetts law that bars protest within 35 feet of clinics that provide abortion services. From the Here & Now Contributors Network, Fred Bever of WBUR reports that the decision could change the way business is conducted at abortion clinics around the country.

The ritual here at Planned Parenthood in Boston has gone on for some seven years now. More than a dozen people gather to pray, bundled against the cold and rain. They are careful to stay just outside a yellow line that marks the perimeter of a state-sanctioned buffer zone around the abortion clinic. Drawn in a 35-foot radius from the front entrance and stretching past the curb in some places, it looks like the three-point line on a basketball court.

If we could we get up closer, we could be loving to them and show them the help that we have for them.
– Evelyn Musto

Some people carry signs that read, “Birth – It’s your first freedom.” One hoists a carved cross fixed to the top of a tall pole. Ruth Schiavone, who lives in the Boston suburb of Norwood, clutches a fan of pamphlets that illustrate the development of a fetus and provide information for women who want to consider alternatives to abortion. Schiavone says she spends most Saturdays here. “They don’t know they have another choice,” she says.

Schiavone says the buffer zone unfairly and unconstitutionally gives an advantage to clinic workers who support abortion rights. But that hasn’t stopped her from convincing some women she met here to take a pregnancy to term. “Last Christmas I was invited to a birthday party for a 2-year-old child, whose mother had turned around here,” she says.

That would seem to support arguments that buffer zones allow for effective speech. But Schiavone and a friend, Evelyn Musto of Brockton, Mass., say that before the zone was established in 2007, their work was much easier. As several clients head through the zone to and from the clinic, the two women are met with silence.

“It really stops our conversation with the girls,” Schiavone says. “We’re limited in our free speech.”

Musto adds, “If we could we get up closer, we could be loving to them and show them the help that we have for them, you know?”

We’re strong supporters of the First Amendment … but they don’t have the right to blockade our health centers.
– Marty Walz

Martha “Marty” Walz, CEO of Planned Parenthood League of Massachusetts, was a state lawmaker in 2007 and helped write the buffer zone legislation after an attempt to bring order to chaotic and sometimes violent clinic protests failed.

“We’re strong supporters of the First Amendment and believe that people do have the right to speak out on the public sidewalk, but they don’t have the right to blockade our health centers,” she says.

Before the law, Walz says the scene could be frightening.

“I was standing in the doorway of the health center and I had someone inches away from my face, screaming at me at full volume. It was scary,” she says. “And that’s why the current law works. There are groups of people outside of our health centers, but because they are not huddled in the doorway creating the physical confrontations. The current law works to maintain public safety.”

In McCullen v. Coakley, seven Massachusetts abortion foes are asking the U.S. Supreme Court to throw out a lower court decision that upholds the buffer zone. They say there’s a big and constitutionally meaningful difference between shouting across an expanse of pavement, and a close-up conversation with a woman who is considering an abortion.

Their case will be argued by Mark Rienzi, a professor at Catholic University of America’s law school, who notes that the punishment for violating Massachusetts’ buffer zone can include two and a half years in jail.

A sign posted on the wall of Planned Parenthood informs people about the 35-foot buffer zone law. (Jesse Costa/WBUR)

A sign posted on the wall of Planned Parenthood informs people about the 35-foot buffer zone law (click to enlarge). (Jesse Costa/WBUR)

“There’s something seriously wrong with the sidewalks in Boston, Massachusetts, of all places being closed to peaceful speech,” Rienzi says. “The government’s just not allowed to jail citizens for peaceful conversations on public sidewalks. They just can’t.”

The Supreme Court hasn’t taken up a similar case since 2000, before conservative Justice John Roberts was appointed. And dozens of groups have filed friend-of-the-court briefs. States and municipalities that have their own buffer zone laws are weighing in too.

The delicate balance between free speech, abortion rights and public safety has put the Bill-of-Rights defenders at the American Civil Liberties Union in a constitutional bind.

“The answer to the question of whether the Massachusetts law is constitutional is not a ‘yes’ or a ‘no,’ but it’s a bit of a maybe,” says Steven Shapiro, the ACLU’s national legal director. He says as long as protesters do get a chance to speak to people entering or exiting a clinic, even from at least 35 feet away, their free speech rights are protected.

But Shapiro says there’s an on-the-ground problem with the way the Massachusetts’ law is written: at some clinic locations the layout of the buffer zones, combined with streets or parking lots, increases the effective size of the zone so much that it prevents effective communication. That can leave protesters vainly holding up signs, while cars drive on by.

“The mistake that the lower court made in this case is they assumed that holding up a sign was the First Amendment equivalent of attempting to engage somebody in conversation or handing them a leaflet, and we don’t think those things are fungible,” he says.

Shapiro and other observers say it’s possible the high court could throw out the use of buffer zones altogether — a precedent-setting move. More likely, though, they say the court will tailor its opinion to specifics of the Massachusetts dispute, which may or may not force governments to revisit the way they handle free speech and abortion.

Correction: An earlier version of this report incorrectly identified Marty Walz’s position at the Planned Parenthood League of Massachusetts; she’s the CEO. We regret the error.

Transcript

JEREMY HOBSON, HOST:

Tomorrow, the U.S. Supreme Court will hear oral arguments in a challenge to a Massachusetts law that bars protest within 35 feet of clinics that provide abortion services. The case could change the way business is done at abortion clinics around the country. From the HERE AND NOW Contributors Network, WBUR's Fred Bever reports.

FRED BEVER, BYLINE: The ritual here at Planned Parenthood of Southern New England's Boston headquarters has gone on for some seven years now.

UNIDENTIFIED PEOPLE: Creator of heaven and Earth, and in Jesus Christ his only son, our lord...

BEVER: More than a dozen people gather to pray, bundled against the cold and the rain. They are careful to stay just outside a yellow line that marks the perimeter of a state-sanctioned buffer zone around the abortion clinic. Drawn in a 35-foot radius from the front entrance and stretching past the curb in some places, it looks like the three-point line on a basketball court.

UNIDENTIFIED PEOPLE: The living and the dead. (Singing) ...so calm and bright...

BEVER: Some people carry signs that read: Birth - It's your first freedom. One hoists a cross fixed to the top of a tall pole. Ruth Schiavone, who lives in the Boston suburb of Norwood, clutches a fan of pamphlets that illustrate the development of a fetus and provide information for women who want to consider alternatives to abortion. Schiavone says she spends most Saturdays here.

RUTH SCHIAVONE: We talk to the girls before they go in. They don't know they have another choice.

BEVER: Schiavone says the buffer zone unfairly and unconstitutionally gives an advantage to clinic workers who support abortion rights. But that hasn't stopped her from convincing some women she met here to take a pregnancy to term.

SCHIAVONE: Last Christmas I was invited to a birthday party for a 2-year-old child, whose mother had turned around here.

BEVER: That would seem to support arguments that buffer zones allow for effective speech. But Schiavone and a friend, Evelyn Musto of Brockton, Massachusetts, say that before the zone was established in 2007, their work was much easier. As several clients head through the zone to and from the clinic, the two women are met with silence.

SCHIAVONE: It really stops our conversation with the girls.

EVELYN MUSTO: But if we could we get up closer, you know, we could, you know, be loving to them and show them the help that we have for them, you know.

SCHIAVONE: You know, we're limited in our free speech.

MUSTO: They have free speech.

MARTHA WALZ: We're strong supports of the First Amendment and believe that people do have the right to speak out on the public sidewalk, but they don't have the right to blockade our health centers.

BEVER: That's Marty Walz, director of Planned Parenthood of Southern New England. She was a state lawmaker in 2007 and helped write the buffer zone legislation after an attempt to bring order to chaotic and sometimes violent clinic protests failed. She says back then, the scene could be frightening.

WALZ: I was standing in the doorway of the health center and I had someone inches away from my face, screaming at me at full volume. It was scary. And that's why the current law works. There are groups of people outside of our health centers, but because they are not huddled in the doorway creating the physical confrontations, it - the current law works to maintain public safety.

BEVER: In McCullen v. Coakley, seven Massachusetts abortion foes are asking the U.S. Supreme Court to throw out a lower court decision that upholds the buffer zone. They say there's a big and constitutionally meaningful difference between shouting across an expanse of pavement, and a close-up conversation with a woman who is considering an abortion.

Their case will be argued by Mark Rienzi, a professor at Catholic University of America's law school, who notes that the punishment for violating Massachusetts' buffer zone can include two and a half years in jail.

MARK RIENZI: There's something seriously wrong with the sidewalks in Boston, Massachusetts of all places, being closed to peaceful speech. The government's just not allowed to jail citizens for peaceful conversations on public sidewalks. They just can't.

BEVER: The Supreme Court hasn't taken up a similar case since 2000, before conservative Justice John Roberts was appointed. And dozens of groups have filed friend-of-the-court briefs. States and municipalities, which have their own buffer zone laws, are weighing in, too.

The delicate balance between free speech, abortion rights and public safety has put the Bill of Rights defenders at the American Civil Liberties Union in a constitutional bind.

STEVEN SHAPIRO: The answer to the question of whether the Massachusetts law is constitutional is not a simple yes or a no, but it's a bit of a maybe.

BEVER: Steven Shapiro is the ACLU's national legal director. He says as long as protesters do get a chance to speak to people entering or exiting a clinic, even from at least 35 feet down the street, their free speech rights are protected.

But Shapiro says there's an on-the-ground problem with the way the Massachusetts' law is written. At some clinic locations, the layout of the buffer zones, combined with streets or parking lots, increases the effective size of the zone so much that it prevents effective communication. That can leave protesters vainly holding up signs while cars drive on by.

SHAPIRO: The mistake that the lower court made in this case is they assumed that holding up a sign was the First Amendment equivalent of attempting to engage somebody in conversation or hand them a leaflet, and we don't think those things are fungible.

BEVER: Shapiro and other observers say it's possible the high court could throw out the use of buffer zones altogether, a precedent-setting move. More likely, though, they say the court will tailor its opinion to specifics of the Massachusetts dispute, which may or may not force governments to revisit the way they handle free speech and abortion. For HERE AND NOW, I'm Fred Bever in Boston.

HOBSON: And you're listening to HERE AND NOW. Transcript provided by NPR, Copyright NPR.


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  • PoliticsWatcher

    This is settled law.

    Conservative judicial activism.

  • Citizen James

    I walked through the door of Planned Parenthood with a woman some years ago. The intervention from the anti-choice set of people was harassment and only harassment. There was no ‘educational’ component to the experience. There was no legitimate ‘engagement’. They were only trying to make the experience as bad as possible for us when they realized that we would not stop. I have no sympathy for them. If they want a soap box for their free speech they can get on one in front of city hall.

    • Samuel Sitar

      buffer zones are wrong as they interfere with free speech. viable unborns have rights too.

      • keltcrusader

        then have all you want, but leave others to make their own decisions

      • mouse

        Well, the Supreme Court has already said abortion on demand is only legal for fetuses that are not yet viable – so the group you want to defend doesn’t come into play here.
        And anti-abortionist activists have the right to write speeches, pamphlets and letters to the editor expressing their opinion; have the right to hire halls or buy advertising or set up their own “clinics” or even buttonhole individuals on probably 99% of the streets. So stopping them from harassing people on 1% of the streets is hardly depriving them of their 1st amendment rights.

        • Stacy21629

          So what if we restrict 49% of folks’ free speech? After all, they still get the majority of their free speech rights?

          • Citizen James

            This has nothing to do with free speech. It has everything to do with harassment. If you haven’t gone through the gauntlet I suggest you do as a test.

  • disqus_76C0PFpw8x

    The freedom of speech does not include freedom to talk to specific people. You have a right to stand up and speak your mind, but you also have a right to go about your business without being harassed. I believe this is included in our rights to “life, liberty, and the pursuit of happiness.” A buffer zone balances these conflicting rights.

    Do opponents of this law also have a problem with the national do-not-call list? Do corporations have a right to call us when we do not want to be called? They are “people,” right? Does the fact that some people have been successfully solicited via telemarketers make a case that they should not be able to stop telemarketers from calling?

  • mouse

    These people already have the right to free speech. What they want is the right to compel other people to listen to them. Hopefully the Supreme Court won’t give it to them, since the Constitution doesn’t.

    What people like these (and Duck Dynasty fans) don’t understand is that while the Constitution does give you the right to say what you want, it doesn’t give you the right to a paid soapbox and a bull horn. Yes, you have the right to tell me your opinions. And I have the right to tell you to shut up and leave me alone.

    And a woman going into a clinic for a procedure that is legally private, between her and her doctor, certainly ought to have the right to be left alone to do that.

  • jim kirby

    Once I get involved in women’s rights, I’ll make abortion clinics into fortresses and hire limos to pick up women and take them inside, right past the protesters who will never see a patient.

  • Stacy21629

    The things that the “health center” worker are complaining about are already illegal – if someone is obstructing your business’s doorway (whatever the business), harassing your clients, or (oftentimes, depending on the municipality) using a bullhorn, those are already illegal actions. Why are these clinics entitled to special restrictions on free speech?

    • knowledge is freedom

      Because when you are trying to intervene in another persons life and attack their lifestyle choices then its NO LONGER FREEDOM OF SPEECH. ITS HARRASSMENT!

  • Jim T

    Don’t be fooled by the insincere innocence of these anti-abortionist’s claims to simply want to be heard. This is the same tactic that religious activists use to get Creationism into the Science classroom. How arrogant it is that they think women simply don’t know there’s another way, other than having an abortion. Of course they know! And they have chosen (wisely) that they should not bring this child (not yet a child) into the world. This is not a casual choice, this is a gut-wrenching decision for women. And this choice, this freedom, should continue, as it is already legal, without harassment! Stay back! We can still hear you, and we still don’t agree with you!

    • Stacy21629

      Actually, very often women that have abortions state that they felt they had “no other choice”.

      • knowledge is freedom

        Knowledge and feelings are different things. We KNOW there are other ways but we FEEL the other ways are the wrong choice for that specific person.

      • myintx

        That’s not a valid excuse to kill a newborn baby. Not a valid excuse to kill an unborn child.

  • Bigfoot

    I wonder how these people would feel if I stood outside their church every Sunday and tired to “educate” them abut other religions?

    • knowledge is power

      I found a website that prints those little Christian cartoon booklets but they put true verses of the bible that ppl don’t read or skip over, like you are allowed to beat and or kill your child and or wife if they disobey you. I don’t remember which book of which verse this is but it’d be a great day for me to educate godly ppl about their god.

  • Ask Me About My Cat

    I’m glad that we have a group of concerned citizens that know everything about everyone’s life and everything about medicine. They know more than Santa with his “naughty or nice” list! Why should they limit themselves to opining on abortion? Let’s all ask them about all of our important life decisions!

    If you think there shouldn’t be a buffer zone, invite them to your place of business and let them stand at the front door with their signs and horns.

  • Rick

    I support the buffer zones and think it leads to greater safety for everyone involved. However, as a compromise, perhaps literature from the protesters could be placed on a table inside the buffer zone, and if the mother decides to read it and discuss her options, as they argue, she can go to them. This way, they still get to make their point and not be in anyone’s face. BTW – Bigfoot, great analogy!

    • knowledge is power

      the literature is nonprofessional and misleading lies. You think that women don’t know what’s going on with our bodies and what happens? We are not children to be lied to. If we go somewhere we want information from THEM not outside solicitors. Otherwise if we wanted to be lied to and oppressed we’d go to church.

  • ERR

    If I go to the dentist, cardiologist, GP, etc. no one is there trying to convince me of anything or educate me on their POV’s and opinions regarding my personal care choices and routines. In their opinion I may need to floss more, eat less saturated fat, drink more water, get more cardio and loose weight. This issue about women’s clinics is plain and simple- it is no one else’s business what I legally do and what the other patrons of PP legally do. This buffer zone is not an infringement on anyone’s right to say, believe, express and demonstrate how they feel. All the buffer zone does is guarantee safety, security respect and privacy for the patrons of PP. Here in Providence they can walk right up to you and be inches from you. Let me say that any woman in this situation that has decided to go ahead with a D&T procedure doesn’t need any help feeling deeply conflicted. They do however need help protecting her right to safety, security, space, privacy, and decency to make a legal choice regarding reproductive health.

    • myintx

      When you go to the dentist, you’re not going there to kill another human being. If you were, there would be people there telling you it’s wrong to kill.

      It was legal to own slaves a long time ago. I’ll bet slave owners reminded people all the time that it was legal. Still never made it right.

      Abortion isn’t ‘reproductive health’ – it’s the intentional killing of an unborn child.
      Unless the woman’s life is truly endangered from the pregnancy, killing an unborn child is senseless and selfish killing and should be stopped.

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