Supreme Court justices cast doubts on protection around abortion clinics

April 29, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Three justices who could hold the balance of power in the Supreme Court on anti-abortion demonstrators' rights voiced doubts yesterday about a judge's authority to draw wide "buffer zones" around clinics to ward off sidewalk protests.

Justices Ruth Bader Ginsburg, Anthony M. Kennedy and David H. Souter -- all part of the court's moderate bloc -- seemed skeptical of broad limitations on abortion foes' free-speech rights, unless such limits are needed to head off violence or outright lawbreaking. Of the three, Justice Kennedy appeared to be the most troubled.

Their reactions appeared to be among the most significant as the court held a one-hour hearing on the constitutionality of a Florida judge's order that seeks to insulate patients and staff at a Melbourne, Fla., clinic that has been the target of years of anti-abortion blockades and demonstrations.

Questioning by a number of justices, including the three moderates, raised the prospect that the court would find that the Florida judge had gone too far, at least in some aspects of 300-foot buffer zones ordered around the clinic and around staff members' homes.

If three justices were to vote to put some constitutional curbs on judicial orders, it would be very likely that two other justices would be available to make a majority. Justice Antonin Scalia repeatedly criticized yesterday the scope of the judge's order and belittled the clinics' claims of being threatened by abortion foes' tactics. Although Justice Clarence Thomas said nothing yesterday, he is expected to vote similarly to Justice Scalia.

Justice Sandra Day O'Connor, also considered a member of the court's moderate bloc, gave few hints of her reaction to the Florida order. She told the abortion foes' lawyer, Mathew D. Staver of Orlando, that he was making a "confusing" argument. Mr. Staver criticized the buffer zone's impact on protesters' rights, saying that the judge's order "instead of using a surgeon's scalpel cuts with a butcher knife."

Justice O'Connor is the author of the court's only decision so far on the rights of abortion foes, a 1988 decision that allowed cities to ban protest demonstrators if they "targeted" a specific doctor's home.

Yesterday's hearing was the last on an abortion case for Justice Harry A. Blackmun, the author of the original abortion rights ruling, who is retiring in the fall. He was silent throughout the hearing. Justice John Paul Stevens, the court's other liberal member, said little, but he has voiced concern previously about limiting abortion protests when there is no pattern of actual violence.

Justices Kennedy and Souter had signaled their concern about the First Amendment rights of abortion protesters last January, when the court ruled that a federal anti-racketeering law could be used against blockaders who seek to shut down clinics. While they supported that result, they cautioned courts handling rackets law cases against those who engage in "protected advocacy."

Yesterday, Justice Kennedy openly disagreed with the description by the Melbourne clinic's lawyer of rough tactics by abortion foes outside that facility. After watching a videotape of one of those protests, Justice Kennedy said, "I did not see" the "swarming" and "thrusting" described by Talbot D'Alemberte of Tallahassee, the Florida State University president, representing the clinic. "It seemed to me to be rather orderly," the justice said.

In comments to U.S. Solicitor General Drew S. Days III, representing the Clinton administration in support of the clinics' plea for protection, Justice Kennedy warned of the "special dangers" of judge's orders aimed directly at specific persons who "are being singled out as to their speech" -- such as protesters with anti-abortion views.

Justice Souter expressed doubts about the Florida judge's buffer zone around clinic workers' homes, wondering whether there had been any indication of violence or threatening activity at those sites.

Justices Souter and Ginsburg appeared at times to be attracted to an argument by the AFL-CIO, which has joined in the Florida case to try to limit its impact on labor union picketing, suggesting that broad court orders against demonstrators could be justified only if they were absolutely necessary to protect someone from "irreparable harm."

Justice Ginsburg also noted that a judicial order of the kind at issue in Florida "homes in on a particular group." The court's newest member, Justice Ginsburg has not previously spoken publicly on the issue of sidewalk protests outside clinics.

The court is expected to decide the case before its summer recess.

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