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Citing ’97 Buffalo case, high court overturns abortion protest buffers

WASHINGTON – Frequently citing a 1997 decision in which it struck down parts of a federal court order limiting abortion protests in Buffalo, the Supreme Court on Thursday invalidated a Massachusetts law that set a 35-foot protest-free buffer zone at entrances to abortion clinics.

“The buffer zones impose serious burdens on petitioners’ speech,” Chief Justice John G. Roberts Jr. said for a unanimous court.

Returning to an issue it has considered several times – the extent to which governments can limit free speech in the name of safety and access at abortion clinics – the court relied heavily on its opinion in Schenck v. Pro-Choice Network of Western New York.

In that 1997 case, the Supreme Court overturned part of a court order issued by U.S. District Court Judge Richard J. Arcara. The justices said Arcara went too far when he established a 15-foot floating buffer zone around individuals entering abortion clinics, but they upheld Arcara’s 15-foot buffer zone at abortion clinic entrances.

In his opinion in the Massachusetts case Thursday, Roberts said that in the Schenck case, the court had already ruled that governments have a legitimate interest in ensuring safety outside abortion clinics and in making sure that women are free to enter such facilities.

But, as was the case with Arcara’s floating buffer zones, the high court said Massachusetts went too far in 2007 when it passed a law establishing fines of up to $5,000 for people who linger within a 35-foot area of a clinic entrance while that clinic is open.

Roberts noted that in the 1997 ruling that had its roots in Buffalo, the court had said: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment.”

For that reason, the court ruled in the Schenck case that courts and governments must not limit free speech any more than necessary while trying to control abortion protests. But Massachusetts went far too far, Roberts wrote.

“For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” Roberts said.

Massachusetts could have tailored its law more narrowly while still maintaining public safety and access to abortion clinics, Roberts said.

“But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers,” Roberts wrote. “It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.”

While the other eight justices concurred in Roberts’ opinion, Justice Antonin Scalia wrote a separate opinion in which he said the court should have gone further, requiring a much more thorough review of any government attempt to control speech at abortion clinic entrances.

By failing to do that, “today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.” Scalia said in his opinion, which Justices Anthony M. Kennedy and Clarence Thomas joined.

Justice Samuel A. Alito Jr. also filed an opinion concurring with Roberts but arguing that the court should have made clear that the Massachusetts law “blatantly discriminates based on viewpoint.”

The case, McCullen v. Coakley, pitted abortion protester Eleanor McCullen against Massachusetts Attorney General Martha M. Coakley.