The justices of the U.S. Supreme Court had harsh words this morning both for out-of-control abortion protesters in Buffalo and for the court order aimed at controlling them.
During oral arguments on U.S. District Judge Richard J. Arcara's limits on abortion clinic protests in Buffalo, the justices seemed equally concerned with protecting abortion clinic access and the constitutional right to free speech.
Justice Ruth Bader Ginsburg noted the court record in the case is filled with evidence of protesters shoving and intimidating abortion clinic patients.
"There must be some sort of keep-your-distance rule to prevent pushing and grabbing," Justice Ginsburg said. "There is a prior history here."
But Justice Anthony Kennedy said that, while Arcara was devising such protest limits, "one of the things he's supposed to do is read the First Amendment," which guarantees freedom of speech.
Arcara's court order, issued in February 1992, bars protesters from within 15 feet of clinic doors and driveways. In addition, it keeps them 15 away from anyone entering abortion facilities in the Buffalo and Rochester areas.
Two "sidewalk counselors" are allowed to approach people going to the clinics, but if those people ask the counselors to go away, the counselors must back off.
The question in the case is whether Arcara's order complies with a previous Supreme Court decision that abortion protest limits must "burden no more speech than necessary to serve a significant government interest."
The justices seemed especially concerned that the "floating bubble zones" in Arcara's order might indeed go too far in limiting free speech.
Justice David Souter said that while an order like Arcara's was likely to prevent the harassment, "the difficulty in this case is that you're saying there are these 15-foot zones around one person. That means you've got these multiple, intersecting 15-foot zones, and that makes this far more difficult . . . when the zones are moving and intersecting, it may be difficult to enforce."
Several justices also expressed concerns that upholding all of Arcara's order could encourage judges to place similar limits on labor pickets.
Arguing for upholding Arcara's order, Lucinda M. Finley, a University at Buffalo law professor, told the court that protest limits are necessary to protect the peace at health-care facilities and the well-being of their patients.
"The fact that people were grabbing and knocking other people down is what necessitated some sort of clear zone," she said.
Ms. Finley stressed that Arcara's order did not limit what people can say at abortion clinics. It keeps demonstrators at a safe distance and prevents sidewalk counselors from badgering patients with an unwanted message, she said.
Walter Dellinger, acting U.S. solicitor general, agreed. He told the court that, before Arcara's court order, upwards of eight people would surround patients entering Buffalo's clinics, crowding and harassing them.
Arguing for the Rev. Paul C. Schenck, one of Buffalo's most prominent abortion protesters, attorney Jay Alan Sekulow said the demonstrators have a constitutional right to have their say.
"There is robust speech outside abortion clinics," Sekulow said. "But the fact that these are entrances to medical facilities does not mean that they become enclaves free of the First Amendment."
In a brief filed with the court, he also called the floating buffer zones unconstitutionally vague.
The high court is expected to take a private preliminary vote Friday on the case, Schenck vs. Pro-Choice Network of Western New York. But a decision is not expected to be made public for several months.