WASHINGTON - In an atmosphere of increasingly violent abortion protests, the Supreme Court yesterday condemned the pushing, shoving and 'in your face' tactics of demonstrators, ruling that women seeking abortions can be shielded from protesters as they enter a clinic's doors.
The court, in a split decision, said demonstrators can be kept away from health clinic driveways and entrances, but should be allowed to approach clinic staff and patients as they walk along the public sidewalk.
The case has been closely watched both by those who feared a generally conservative court might retreat from past restraints on abortion demonstrators, and by the demonstrators themselves, who view their ability to protest as their last, best hope for curtailing abortions.
Figuring out how to regulate clinic protests has emerged as a concern of lawmakers and local judges nationwide in the face of demonstrations that have often become raucous, and occasionally even deadly. Buildings across the country have been bombed, clinic staff killed, and a physician murdered. Just Tuesday night a fire was set at an abortion clinic in Falls Church, Va.
Overall, yesterday's opinion endorsing a 15-foot buffer around clinic entrances and its strong sentiment against violent disruptions strengthens the hand of abortion rights groups that seek court orders keeping protesters free from taunts.
The decision reinforces a 1994 ruling first allowing so-called "fixed buffer zones" around clinic doors and shows that in the context of clamorous abortion protests a majority believes government's interests in public safety and a woman's access to medical care outweigh protesters' free speech rights.
In his remarks from the bench and opinion for the court, Chief Justice William Rehnquist, who himself opposes abortion, vividly described the scene at clinics near Buffalo and Rochester New York, where the case originated: "(V)olunteers who attempted to escort patients past protesters ... were sometimes elbowed, grabbed, or spit on. ... (P)eaceful efforts at persuasion often devolved into 'in your face' yelling ... Men who accompanied women ... sometimes had to be restrained (not always successfully) from fighting with the counselors."
Yet, the Rehnquist majority sided with demonstrators on a key issue that until yesterday had not been examined by the court: whether protestors can step inside "floating" zones that effectively follow patients and staff as they approach or leave a facility. A federal judge in New York had ordered that, with some exceptions, demonstrators at abortion clinics should be kept from within 15 feet of any patient or staff member that approaches a clinic-a buffer zone that would move or "float" with the person as she walked along the sidewalk. Even the strong abortion-rights justices Ruth Bader Ginsburg and John Paul Stevens agreed with Rehnquist that, in this case, a floating 15-foot protective zone restricts the free speech rights of demonstrators. Only Justice Stephen Breyer dissented from this part of the opinion.
Noting that such floating zones prevent protesters from handing out leaflets or having normal conversations with people on public sidewalks, Rehnquist said, "Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment." He said the court was not deciding whether a zone that travels with patients could never be allowed, but rather that the record in the New York case could not justify such a broad prohibition on speech.
Jay Sekulow, who argued the case on behalf of abortion protesters, said yesterday, "I think you will see more sidewalk counseling. There were people out there who engage in verbal protest and sidewalk counseling who stopped doing it" since the New York judge's ruling.
Lucinda Finley, who represented the Pro-Choice Network of Western New York, said separately that now that the court "has demonstrated that it is comfortable with buffer zones ... we could seek larger ones" to stop interference with women seeking abortions.
Overall, yesterday's decision in Schenck vs. Pro-Choice reinforces a 1994 decision from a Florida case upholding fixed buffer zones as long as they burden no more free speech than necessary to serve a significant govenrmental interest. That case involved a 36-foot zone. When the court agreed to hear the new case, there was some speculation among both sides over whether the court would reconsider or narrow its original decision in Madsen vs. Women's Health Center.
That did not happen. And in both cases, the voting line-up on the issue of the fixed buffer zone was the same, with justices Antonin Scalia, Anthony Kennedy and Clarence Thomas again dissenting. Scalia, who wrote for the three, said the court was wrongly expanding judicial power at the expense of free speech.
AP PHOTO
The Rev. Robert Schenck, general secretary of the National Clergy Council, meets reporters yesterday on the steps of the Supreme Court in Washington, D.C.