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 anti-abortion activists creaming, 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 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 Kennedy rejoined, referring to the right of free speech.
Justice David 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 anti-abortion 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.