Justices to define free speech in abortion protests

January 22, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- On the eve of the anniversary of Roe vs. Wade, the Supreme Court voted yesterday to take on a new abortion dispute, this time to spell out the free-speech rights of those who try to shut down clinics.

The outcome of the case is likely to have an impact on clinic blockades across the country and could affect enforcement of a tough new federal law that Congress is expected to enact this year to punish blockaders.

It probably was only a coincidence, but at the moment the court was acting on a major new test case from Florida, protesters on both sides of the abortion controversy were milling around in demonstrations on the sidewalk outside the courthouse.

Clinic blockades here and elsewhere were planned for this weekend.

The timing of the Supreme Court's action apparently was dictated by its own working schedule and not by the arrival of either the demonstrators or today's 21st anniversary of the 1973 ruling that first established a woman's constitutional right to abortion.

The court did not announce its action until after all of the demonstrators had left.

Earlier in the day, about 35,000 anti-abortion demonstrators, by police count, showed up behind the White House in sub-freezing weather for an annual protest of the Roe decision.

Many of the speeches focused on the Clinton administration's energetic support of abortion rights. Rep. Christopher Smith, R-N.J., for example, described the Clintons as the "President and first lady of abortion."

Abortion rights forces used the anniversary to call for an end to violence and harassment at health clinics.

"Our nation's goal," said Kate Michelman, president of the National Abortion and Reproductive Rights Action League, "must to make abortion less necessary -- not more dangerous or more difficult."

The court will be ruling on the right to stage peaceful protests, not those that involved violence, such as the shootings last year of abortion clinic doctors at blockades in Florida and Kansas.

The case the court will be hearing in April on clinic protesters' First Amendment claims grows out of years of demonstrations and blockades around the Aware Woman Center for Choice in Melbourne, Fla.

After earlier court orders failed to stop the blockades, a state judge issued tighter restrictions in April. That order has since been upheld by the Florida Supreme Court, but a federal appeals court disagreed, saying that the order goes so far that it probably violates the First Amendment.

The Supreme Court has never spelled out, in a fundamental way, how far the Constitution's First Amendment will allow judges to go to stop or limit protest activities around abortion clinics.

The Florida order has these key provisions:

* At no time may protesters stage demonstrations within 36 feet of the clinics.

* In the morning hours, no protest "sounds or images" may be uttered or displayed close enough that patients in the clinic could hear or see them.

* Any protester trying to make direct contact with anyone going to the clinic may do so only with that individual's consent, unless the contact is made more than 300 feet away from the clinic.

* No protest may be made within 300 feet of the home of a clinic employee, staff member or owner.

Jay Alan Sekulow, the Atlanta lawyer for Operation Rescue, the militant anti-abortion organization, said that the court probably had agreed to rule on the issue because of the conflicting rulings in the lower courts.

Whatever the reason the justices had for taking on the issue, he said, "this case should analyze completely the implications of the First Amendment as it relates to abortion protests."

Thus, he said, it would be likely to have an effect on the constitutionality of the new anti-blockade bill expected to emerge from Congress early in its session this year.

Both houses have passed that proposal, in slightly different forms, and will soon work out a compromise.

The Supreme Court has not ruled on the rights of pregnant women seeking abortions since its ruling in June 1992, partly reaffirming the rights it established in Roe vs. Wade.

Since then, it has been turning its attention increasingly to the legal consequences of clinic blockades.

Last January, it barred clinics from using a federal civil rights law as a basis for collecting damages from blockaders.

Sometime during its current term, the court is expected to decide whether clinics may use a federal anti-racketeering law against those who try to shut them down.

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