THE BUFFALO abortion case just argued before the Supreme Court deals in substantial constitutional questions. But with the oral arguments now made, the nation's highest court ought to affirm the latest appellate ruling -- that U.S. District Judge Richard A. Arcara's 1992 order did not violate the free speech of anti-abortion protesters.
The clash of rights in this case -- which arose from the raucous Operation Rescue and other anti-abortion protests in the 1988-92 period -- can be easily recognized. Arcara's controversial order has been both reversed and upheld by divided higher courts that reviewed it. But it should be clear that the right of free speech does not extend to harassing others and overstepping their own rights.
The order instructed protesters in the Buffalo-Rochester area to stay at least 15 feet away from the entrances of abortion clinics and 15 feet away from patients and employees as they approached those clinics. The moving 15-foot zones around people, which could be breached only under limited conditions, have been called "floating bubble zones."
The high court's decision will settle the dispute and may well apply beyond abortion protests. Judges could apply the prescribed high-court "rules of engagement" to other situations such as labor picketing, gay-rights protests, street-corner preaching and civil-rights demonstrations.
It is difficult to understand how anyone could contend that some actions, the pushing and shoving and the screamed epithets in the Buffalo abortion demonstrations, did not breach standards of peaceful protest and safeguards against personal abuse, badgering and intimidation.
Nor is there reason to believe that individuals and groups cannot exercise free speech across buffer zones of only 15 feet. Buffer zones restrict behavior, as Justice Stephen G. Breyer noted during the court arguments, not speech. Addressing a pro-life attorney, he said: "We're 15 feet apart now. Even without the microphone, I think I can hear you perfectly well. So what is the problem?"
Similarly, a careful balance infuses another key part of Arcara's order. On the one hand, it allows anti-abortion counselors to go closer than 15 feet to speak to a patient but, on the other, it requires them to desist if the patient asks to be let alone. The order permits protesters to try to persuade, but not at the price of forcing patients to listen.
Whether the order states the intent of the court with sufficient clarity remains a more technical question. But if it does not, or if the justices consider the standards of the floating bubble too vague to be properly enforced, then Arcara's order can be revised. An earlier precedent in a Florida abortion-protest case approved a larger, though more fixed, buffer zone of 36 feet around clinics.
Ironically, such a limited victory by anti-abortionists who brought this case, including the Rev. Paul Schenck and Dwight Saunders, a local attorney, could widen the required space between protesters and clinics.
This Supreme Court decision is not expected for several months. It will serve the Constitution and our free society best by defining clear standards. They should guard free speech in the heat of public demonstrations along with the rights of others, including that of being let alone.
The Arcara order draws fair, balanced lines between these competing human rights. The Supreme Court ought to endorse it.