The U.S. Supreme Court today begins considering whether protests at Buffalo's abortion clinics were chaotic enough to justify a court-ordered crackdown -- or whether that crackdown violates the constitutional right to free speech.
The case, in which the justices will hear oral arguments this morning, is considered to be among the most important in the court's 1996-97 term -- not just because of its potential impact on abortion clinic protests, but also because of its implications for other types of public demonstrations.
The AFL-CIO, for example, filed a brief with the court complaining that by approving such limits on abortion protests, the high court would allow judges to set limits that would strictly curtail a striking union's right to picket. The labor organization said such a decision would be a "death warrant" for the right to free speech.
In considering the case, which the justices won't decide for several months, the high court will hear two very different descriptions of the blockades and mass protests that, most notably, overwhelmed the Buffalo GYN Womenservices clinic between 1988 and 1992.
The lawyer for the Pro-Choice Network of Western New York, Lucinda M. Finley, will argue that protesters were so out of control that they infringed on the constitutional rights of clinic patients. That, the clinics argue, was the justification for a court order, issued by U.S. District Court Judge Richard J. Arcara, that enforces "buffer zones" to separate the protesters from the clinic and its patients.
In contrast, a lawyer for one of Buffalo's most prominent abortion protesters of the era, the Rev. Paul C. Schenck, will argue that Arcara's order goes too far in limiting what abortion protesters can say and where they can say it.
Under the court order issued by Arcara in February 1992, abortion protesters in the Buffalo and Rochester areas must stay at least 15 feet from the doors and driveway entrances of abortion clinics.
In addition, demonstrators must stay 15 feet away from clinic patients and employees, although two "sidewalk counselors" are allowed to approach the patients. The patients can tell the counselors to go away, however, and the counselors must do so or risk being cited for contempt of court.
Those restrictions are justified in light of the trouble that occurred at Buffalo's clinics at the turn of the decade, said Ms. Finley, a law professor at the University at Buffalo.
In her brief, she said that despite an earlier order by Arcara, protesters "continued to crowd around cars and pedestrians, frequently engaging in grabbing, pushing, shoving and yelling."
Other protest activities included "destroying medical equipment and instruments, kicking in walls, breaking entrance doors (and) rubbing a dead skunk around the doorway and leaving the carcass," she said.
Ms. Finley said she concentrated on the details of the protests to show that Arcara's injunction clearly meets a standard that the high court set in another abortion clinic protest case in 1994. That standard said court-ordered protest limits must "burden no more speech than necessary to serve a significant government interest" -- which, in this case, is protecting the patients' constitutional "right to be let alone."
That being the case, Ms. Finley said, the justices should not only back Arcara's order but also send the case back to him to make the protest limits even tougher.
Schenck's lawyers counter by saying that the Arcara's protest limits are too extreme.
"No extraordinary record of pervasive lawlessness exists in this case," Schenck's lawyers said in their brief to the high court. "Never in the history of American jurisprudence has this court upheld an injunction prohibiting peaceful, non-threatening speech on public sidewalks outside a business facility in the absence of a showing that access to the facility is obstructed."
In particular, Schenck's lawyers complain about the "floating bubble zones" that limit what protesters can do when they are within 15 feet of abortion patients. They say the bubble zones are unconstitutionally vague.
They also say the "cease and desist" provision -- which allows patients to tell counselors to shut up -- is a blatant violation of the First Amendment guarantee of free speech.
Some 14 people have been convicted or pleaded guilty for violating Arcara's court order, which, according to clinic officials, has not completely kept the peace at Buffalo GYN Womenservices, which is now located at 2500 Main St.