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This photo taken Dec. 17, 2013 shows anti-abortion protester Eleanor McCullen, of Boston, standing at the painted edge of a buffer zone outside a Planned Parenthood location in Boston. The regulation of protests outside abortion clinics returns to the Supreme Court for the first time since 2000 to find the justices seemingly more protective of speech and less committed to abortion rights. That combination could prove difficult to overcome for the state of Massachusetts as it seeks to defend a law, in arguments at the high court on Jan. 15, that prohibits abortion protests any closer than 35 feet from the entrance to clinics. (AP Photo/Steven Senne)
Justices likely to strike down abortion clinic buffer zones
Supreme Court » Kagan says she’s “hung up” over the size of the protest-free zone.
First Published Jan 15 2014 10:05 am • Last Updated Jan 15 2014 08:41 pm

Washington • A 35-foot protest-free zone outside Massachusetts abortion clinics appeared unlikely to survive Supreme Court review after liberal and conservative justices alike expressed misgivings about the law in arguments Wednesday.

Lawyers for both sides faced tough questions about the Massachusetts law aimed at ensuring patient access and safety at abortion clinics. Nationwide, clinics have dealt with threats and violence, including the shooting deaths of two employees in Boston-area clinics in 1994.

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But the court questioned the size of the zone and asked whether the state could find less restrictive ways of preventing abortion opponents from impeding access to clinics without prohibiting peaceful, legal conversations.

No one has been prosecuted under the 2007 law, which state officials and clinic employees have said has resulted in less congestion outside the clinics.

The court — which bars protests on the plaza outside its own building but allows them on the public sidewalks — last considered abortion-clinic protest zones in 2000 when it upheld a Colorado law.

It seemed possible that there could be more than the five votes needed to strike down the law after Justice Elena Kagan said she was "hung up" over the size of the zone.

But it was hard to tell whether the court might also upend its 2000 ruling in support of the Colorado zone, which has been criticized by free-speech advocates for unfairly restricting protesters’ rights.

That’s because Chief Justice John Roberts, normally an active questioner, did not ask a single question of any of the three lawyers who argued the case.

Semicircles are painted outside Planned Parenthood clinics in Boston, Springfield and Worcester. Inside the line, protesters and supporters alike risk arrest.

One woman who shows up most Tuesdays and Wednesdays outside the Boston facility, Eleanor McCullen, 77, was at the court Wednesday, as was Marty Walz, the sponsor of the 2007 law in the Massachusetts House of Representatives and now the president and CEO of the Planned Parenthood League of Massachusetts.


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McCullen said the law has made it harder, but not impossible, to persuade women to have their babies rather than abort.

In an exchange with Justice Stephen Breyer, lawyer Mark Rienzi started to make a point about being asked to stand back an additional 35 feet to make his argument on behalf of McCullen.

"I’d hear you," Breyer cut in.

"You might hear me," Rienzi said, "but I would suggest you’d receive it quite differently."

McCullen and other protesters at those clinics sued the state over its 2007 law setting up the buffer zone. Federal courts in Massachusetts have upheld the law as a reasonable imposition on protesters’ rights.

Walking through the zone takes just a few seconds, Justice Ruth Bader Ginsburg said. "There’s not much you’re going to be able to do to have a conversation that will persuade people in seven to 10 seconds," she said.



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