High court considers abortion protest law

Wide interpretation gives justices pause

January 20, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- The Supreme Court seemed poised yesterday to give states and cities clear power to restrict protests outside abortion clinics, but then a lawyer for the state of Colorado put the whole issue in doubt.

Holding a hearing on a major case on anti-abortion demonstrations, the fourth in the past seven years, the justices again searched for ways to clarify the constitutional rules governing the sidewalk wars outside clinics.

Seldom, however, do a Supreme Court hearing's tone and direction and the justices' apparent sentiments shift as abruptly as they did yesterday.

At issue was the constitutionality of a 1993 Colorado law creating a protective eight-foot "bubble zone" around patients and staff members going into and out of clinics.

For nearly half the hearing, every justice who took part in the questioning seemed clearly inclined to allow the states and cities to pass laws creating such zones, even though the court in the past has limited judges' power to create such zones by court order.

Justice Antonin Scalia suggested that it can be "inherently intimidating" for a protester to get really close -- perhaps as little as an eighth of an inch away -- to a person entering a health facility.

"It is just intimidating if my nose touched your nose," Scalia told Jay Alan Sekulow, a Washington lawyer representing anti-abortion protesters. It is reasonable, Scalia said, "to have a law limiting a `bubble' to a distance" necessary to prevent intimidation.

Sekulow had to repeatedly fend off critical comments or questions by justices as he struggled to show how the Colorado law intruded on abortion foes' free-speech rights.

Justice Sandra Day O'Connor, for example, pointed out that the law only requires protesters to stay eight feet away from targeted individuals, and she commented: "Your can convey anything from a distance of eight feet, and you can do it in a normal conversational tone."

Broadest possible terms

But, during the second half of the hearing, the justices rapidly grew skeptical about the Colorado "bubble zone" law at issue.

They did so because a lawyer for the state, Solicitor General Michael E. McLachlan, repeatedly interpreted the law in its broadest possible terms, indicating that the statute would leave little opportunity for free speech on public sidewalks outside health facilities.

The shift was most noticeable after McLachlan told the court that, if a single doctor's office were located 18 stories up in a 20-story skyscraper, Colorado's protective zone law would apply on the sidewalk at ground level, even when the individuals entering or leaving were not going to or from the doctor's office.

Virtually every attempt to get close enough to anyone entering or leaving to strike up a conversation would be covered, the lawyer said.

Focus on the sidewalk

The focus, he said, is the sidewalk outside a health facility, and the law is neutral about what types of conversations a protester might be trying to strike up there.

Repeatedly, justices gave McLachlan chances to back away from that sweeping interpretation, but he continued to insist the law was just that broad.

Justice Anthony M. Kennedy said the law seemed "whimsical and imprecise" if it actually restricted sidewalk encounters outside an office building just because there was one medical facility inside. "It seems to me troublesome," Kennedy said.

McLachlan agreed with a comment by Kennedy that the law, as the state's lawyer was interpreting it, would curb "all kinds of people stating all kinds of views," just because they were on a sidewalk outside a building with a health facility.

Justice David H. Souter suggested that McLachlan's argument meant that "it was as if all offices in the building were doctor's offices." The state's lawyer did not disagree.

Another viewpoint

A deputy U.S. solicitor general, Barbara D. Underwood, taking part to provide the federal government's support for the Colorado law, tried in her available 10 minutes to suggest that the law was really designed only to stop protesters from making menacing moves by advancing toward clinic users or staff members.

A final ruling on the law's constitutionality is expected by early summer.

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