A MASSACHUSETTS law that says that "no person" may enter or remain in the 35-foot buffer zones established outside abortion clinics in the state has set off a controversial legal battle about the proper balance between the rights of speakers and the rights of those who must listen to them.
Although several federal courts have upheld the law over the past few years, the Supreme Court has now agreed to review it. The high court should uphold it as well.
The petitioners, including a grandmother in her 70s who stands outside abortion clinics hoping to talk to women on their way in, claim that the law is an impermissible infringement on their right to express their opinion. They complain that they are held so far back from clinic entrances that they are prevented from communicating with the women in a conversational tone of voice, with eye contact, with offers of counseling. They are unable to hand out informational leaflets.
Shouting from a distance, they say, is ineffective or counterproductive. When they do find a woman willing to have a conversation before she gets to the 35-foot zone, they are thwarted from continuing it once she moves into the zone.
The U.S. 1st Circuit Court of Appeals, which upheld the law in January, noted that the First Amendment doesn't guarantee the right to an attentive audience "available at close range." But it does require that, in seeking to protect audiences from "hindrance, harassment, intimidation or harm," the state not place any more burden on the right of free speech than necessary. No principle is more fundamental to a free society than the right to speak out in protest, but just because speech is vital does not mean that all other rights yield to it at all times. Indeed, time, place and manner restrictions are common.
In this case, the buffer zone is justifiable. Though there are many civil, reasonable anti-abortion protesters in the world, history shows that some have turned the perimeters of reproductive-health clinics into battlegrounds, using intimidation and sometimes violence. The fatal shooting of two clinic workers in Brookline, Mass., in 1994 by an opponent of abortion was the impetus for the law that is being challenged.
Along with Massachusetts, two other states have set up protective zones. Besides, the 35-foot buffer zone doesn't entirely prevent face-to-face conversations. A protester can't walk and chat with a woman all the way to the clinic entrance, but a woman on her way to the clinic can pause outside the zone to have a conversation, if she chooses. And even from 35 feet, the voices of protesters can be heard and their signs can be read. The petitioners also argue that the law amounts to unconstitutional viewpoint discrimination because clinic employees are able to enter the buffer zone and talk to women. But health-care workers assisting their clients aren't engaging in advocacy; they're doing their jobs.
The court should uphold the Massachusetts law, which targets speech only to the extent of attempting to ensure an environment in which women have access to safe, legal and effective medical services.