Clinic confrontations allowed But abortion protesters must be ready to retreat

Supreme Court

February 20, 1997|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A divided Supreme Court ruled yesterday that anti-abortion demonstrators have the right to confront patients, doctors and clinic staff members face to face but must back off as soon as they are asked to do so.

The decision provided new guidance to judges who handle disputes arising from clinic blockades. It also gave each side in the abortion controversy something to cite as a partial victory.

By an 8-1 vote, the court struck down a "floating bubble zone" that a federal judge had created to protect people at clinics in western New York that have been the site of blockades and physically rough encounters. The zone extended 15 feet on each side of a person who moved to and from the clinic.

But by a 6-3 vote, the majority upheld the judge's order that protesters move away once the targeted individuals indicate, verbally or by gesture, that they want the confrontation to stop.

And by an identical 6-3 vote, the court ruled that judges may impose a 15-foot fixed buffer zone around doorways, driveways and parking lots of clinics that have been the scenes of aggressive abortion protests.

Judges, the court made clear, may bar protesters from entering those buffer zones. That part of the court decision went further than the lower-court judge had; the judge had permitted two protesters to be inside the fixed buffer zones to engage in "sidewalk counseling."

Both supporters and opponents of abortion rights found something to praise in yesterday's rulings.

Lucinda Finley, a law professor at the State University of New York at Buffalo who represented the clinics and doctors in the case, said the split decision left her "very encouraged."

In fact, Finley said, she will now return to the federal judge to ask for a broader order, with wider buffer zones around the four clinics in Rochester and Buffalo.

Marcy Wilder, legal director of the National Abortion and Reproduction Rights Action League, said the decision "reaffirmed the need for protection against anti-abortion violence."

She said the ruling might undercut some city ordinances and lower-court orders that had created floating buffer zones for people outside clinics. But she said most local laws and court orders support fixed buffer zones of the kind upheld yesterday for clinics.

Jay Alan Sekulow, chief counsel of the American Center for Law and Justice, who represented the abortion protesters in the New York case, called the ruling "a tremendous victory for free speech."

"The court sent a resounding message that you cannot silence a message you disagree with," he said.

The Rev. Paul Schenck, executive vice president of the ACLJ and a protester in the case, said the ruling was "a victory for all people of conscience who object to the wanton killing of innocent human beings."

The Rochester and Buffalo clinics have been the targets of Operation Rescue blockades since 1988. The clinics and doctors went to federal court after the blockades had turned heated, with what Chief Justice William H. Rehnquist called "in-your-face yelling," shoving and jostling.

The case reached the Supreme Court as a sequel to a 1994 decision by the justices. That decision was the first to allow judges to create buffer zones around clinics to ward off blockades. In that case, the zone was 36 feet wide.

In the New York case, the judge narrowed it to 15 feet and added a floating zone to move with patients and staff members on the sidewalks leading to the clinics.

Upholding fixed buffer zones around clinics, the court declared in the chief justice's opinion: "These are necessary to ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lot can do so."

Within those zones, Rehnquist added, judges could impose complete no-entry orders to keep protesters away from the clinic itself.

But, the court majority went on, the New York judge went too far by imposing the floating buffer zones around individuals and vehicles. It is difficult, Rehnquist wrote, to know where such

TC zone begins and ends, so even peaceful protesters would not know where they could and could not be.

That part of the ruling means that protesters may go right up to patients, doctors or staff members, to talk to them, hand them literature or otherwise try to convey their anti-abortion message.

At the same time, the court declared that judges are free to require all protesters to back away at the request of the patients, doctors or staff members. Backing away may be necessary to protect the targets from harassment and intimidation, Rehnquist said.

Justice Antonin Scalia, joined by Justices Anthony M. Kennedy and Clarence Thomas, dissented, saying there was no basis for any restrictions on the protesters at the New York clinics.

Justice Stephen G. Breyer dissented only to the part that nullified the floating buffer zones.

Pub Date: 2/20/97

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