The Supreme Court is set to hear a case today brought by a 77-year-old grandmother who seeks to peacefully reach women who may be contemplating an abortion.
Eleanor McCullen stands on public sidewalks near abortion clinics in Massachusetts, her lawyers say, to reach a "unique audience, at a unique moment, in a compassionate and non-confrontational way." Her lawyers claim that over the years many women have accepted such offers of help from McCullen.
But McCullen says her efforts have been stymied since 2007 with the passage of a Massachusetts law that provides a 350foot buffer zone around abortion clinics. The law makes it a crime to "enter or remain on a public way or sidewalk" within 35 feet of an entrance, exit or driveway of an abortion clinic.
The case pits free speech advocates against officials in Massachusetts concerned with public safety.
Massachusetts Attorney General Martha Coakley says in court briefs that the law was necessary after other federal and state laws failed to solve the problem of demonstrators blocking public access to clinics.
She says the law is not about speech, but an attempt to regulate traffic and congestion outside facility entrances to ensure public safety and patient access.
Coakley says demonstrators such as McCullen have ample opportunity to approach women entering the clinic, as long as they abide by the buffer zone meant to protect facility doors and driveways.
She says it takes about 7 seconds to walk from the border of the buffer zone to the facility doorway.
"So, except for those seven seconds immediately outside facility entrances, a patient on a public sidewalk is fully immersed in whatever expressive activity in which petitioners like to engage," Coakely writes. "And even that last seven seconds is not expression free. Petitioners can still be seen and heard as a patient takes her last steps toward the facility door."
Coakley says the law is not directed at any particular message, but is narrowly tailored to serve a government interest and there are other opportunities for communication available to the demonstrators. A lower court upheld the law.
But McCullen says the law is about speech, and that it does not pass constitutional muster. For one thing, while she is barred from the 35-foot zone, she notes that Planned Parenthood staff members are not. And the Massachusetts buffer zone targets only abortion clinics, as opposed to heath clinics in general.
Instead of being able to speak in conversational tones, McCullen says she is forced to raise her voice and is precluded from handing out some literature to prospective patients.
McCullen's lawyer, Mark L. Rienzi, says the law "creates speech exclusion zones only at abortion clinics, and as a practical matter, affects speech only on one controversial issue - abortion."
The case has prompted friend-of-the-court briefs from both side of the issue. One is filed by lawyer Carrie Severino on behalf of 12 women who are opposed to the Massachusetts law.
Severino writes, "These buffer zone laws make off-limits to these speakers the only plot of land on earth where their message has any plausible likelihood of achieving its desired effect." What's at stake, according to Severino, is whether the First Amendment protects "merely the right to cheer for one's own team" or whether it protects "the right to a fair opportunity for persuasion through the free exchange of ideas."
One woman, Madonna Medina of Houston, Texas, had an abortion 33 years ago. She says that she would have welcomed the opportunity to be approached by demonstrators as she entered the clinic. In a recent interview, she said, "as I approached the clinic, I had prayed that there would be someone out there who would have told me, 'you don't have to do this.'" She now volunteers at a pregnancy help center and says she has dealt with many clients who were persuaded not to go through with an abortion even at the last moment.
Planned Parenthood has filed a brief in support of the law.
"The Massachusetts legislature concluded that the best way to ensure public safety and access to the facilities, while respecting the First Amendment rights of opponents of abortion, was simply to create a relatively small space in front of the entrances where people may not enter or congregate," lawyers for Planned Parenthood argue in briefs. Planned Parenthood says that their employees are permitted within the buffer zone but it is only to act within the scope of their employment. Employees are specifically instructed not to advocate any message within the buffer zone.
Teresa Roberts said she has worked as a nurse at Planned Parenthood for 20 years, and witnessed many confrontations in front of the clinic.
"In the 1990's up through 2007, the atmosphere outside the doors of the clinic was often very tense and even acrimonious," she said. But since the law has passed she says there is still a lot of conversation between demonstrators, patents and staff, but the tension has "died down."
"I think it is because there is actually a physical space in which no protesters - with any message - can enter. People can't get in each other's faces nearly as much. It is much more civilized," she said.
In 2000, the Supreme Court upheld a Colorado statute that allowed an 8-foot buffer zone in a case called Hill v. Colorado. Many First Amendment scholars - even those who support abortion rights - say that decision was wrong.
"The basic takeaway of Hill for most lower courts has been to give close to a free pass for laws obviously aimed at silencing anti-abortion speakers," said Kevin C. Walsh, a law professor at the University of Richmond School of Law who filed a brief on behalf of First Amendment Scholars in support of McCullen.
"Because of Hill, these laws have not received the kind of strict judicial scrutiny that laws targeting particular speech content and viewpoints should receive," he said.
The composition of the Court has changed since the Hill v. Colorado ruling. Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, who were dissenters in 2000, could be in the majority for this case. Kennedy was deeply critical of the court's decision in Hill.
"The court tears away from the protesters the guarantees of the First Amendment when they most need it," Kennedy wrote in dissent. "So committed is the court to its course that it denies these protesters, in the face of what they consider to be one of life's gravest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law."