By Greg Stohr
U.S. Supreme Court justices Wednesday voiced doubt about a Massachusetts law that creates a 35-foot buffer zone around abortion clinic entrances in a case that tests the balance between speech rights and free access for patients.
In an hour-long argument that at times veered into a debate over the courtroom's dimensions, several justices indicated they read the Massachusetts law as infringing the rights of people looking to hand out leaflets and start conversations with women entering abortion clinics.
Justice Elena Kagan, who at points suggested she accepted the goals behind the Massachusetts law, said the measure might be too broad.
"I guess I'm a little bit hung up on why you need so much space," Kagan told the state's lawyer.
Massachusetts enacted the law in 2007, strengthening an existing measure that had required a six-foot buffer zone at abortion clinics. The new law makes it a crime to "knowingly enter or remain" in an area within 35 feet of a clinic entrance, exit or driveway. The measure exempts clinic employees and people entering or leaving the facility.
Seven abortion opponents, led by Eleanor McCullen, are challenging the law. McCullen, a grandmother in her 70s, spends two days a week outside a Boston Planned Parenthood clinic trying to counsel women.
A Boston-based federal appeals court upheld the measure, pointing to a 2000 Supreme Court decision that backed Colorado's "floating" buffer zones around abortion clinics. The Colorado law barred anyone from getting within eight feet of another person, without consent, to hand out material or engage in a discussion.
Massachusetts Attorney General Martha Coakley is defending the law with support from the Obama administration. They say the buffer zone is no different from similar restrictions that apply to polling places, schools and funerals, in many cases with Supreme Court approval.
The high court's membership has changed significantly since the 2000 decision. Most notably, two members of that 6-3 majority, Chief Justice William Rehnquist and Justice Sandra Day O'Connor, are no longer on the court. Their successors, Chief Justice John Roberts and Justice Samuel Alito, are often sympathetic to free-speech claims.
Roberts, normally one of the court's active questioners, said nothing during Wednesday's session. Alito and fellow Republican appointees Antonin Scalia and Anthony Kennedy suggested they would vote to strike down the law. Kennedy, Scalia and Justice Clarence Thomas all dissented in the Colorado case.
Massachusetts Assistant Attorney General Jennifer Grace Miller told the justices that "there is no guarantee, as a doctrinal matter, to close, quiet conversations."
That argument drew a quick reaction from Kennedy, who asked, "Do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance?"
Kennedy at another point said, "In speech cases, when you address one problem, you have a duty to protect speech that's lawful."
Although Kagan indicated she might support a narrow decision striking down the Massachusetts law, she also suggested states should be permitted to create buffer zones.
She asked Mark Rienzi, the lawyer representing the abortion opponents, why a state couldn't create a buffer zone around the entrances to slaughterhouses that were being targeted by animal- rights advocates.
"My intuition was kind of, 'What's wrong with that?'" she said. "Just have everybody take a step back."
Rienzi told the justices that Massachusetts had alternatives that would have ensured access to clinics without trampling speech rights.
"There's no reason to believe police can't simply say, 'Move out of the doorway,'" he said.
Justice Stephen Breyer said Massachusetts lawmakers enacted the measure after concluding that a Colorado-type law "didn't really work very well."
Justice Ruth Bader Ginsburg said the state was reacting to "a considerable history of disturbances and blocking the entrance, and it doesn't know in advance who are the well- behaved people and who are the people who won't behave well."
Massachusetts says its law was a response to years of violence at and near abortion clinics, including a 1994 shooting that killed two people. The abortion opponents say the state has no evidence of recent problems, arguing that Massachusetts hasn't prosecuted anyone for trying to block an abortion clinic or engaging in violence since 1997.
Ian Gershengorn, representing the Obama administration, said the Massachusetts law "does not ban speech but instead effectively moves it from one part of a public forum to another."
Alito questioned whether the law was "viewpoint neutral," which the court typically requires. He said the law would let a clinic employee tell a patient just outside the front door that the facility is safe, while barring another person from saying the opposite.
"Under this statute the first one has not committed a crime," he said. "The second one has committed a crime. And the only difference between the two is that they've expressed a different viewpoint."
The dimensions of the buffer zone - and how they relate to the courtroom space - proved as divisive as the legal issues.
Kagan said that 35 feet is "from this bench to the end of the court" and the buffer zone is "pretty much this courtroom." The courtroom is actually 82 feet by 91 feet, according to the court's website.
Justice Sonia Sotomayor said the zone was more like "two car lengths." She added, "That's, I think, a little less than this courtroom."
Miller said the recessed door at the Boston Clinic means the buffer zone actually extends only 23 feet from the building.
"It is an NBA three-point zone," Gershengorn said, referring to the National Basketball Association.