NYTIMES Source

BOSTON — A couple of mornings a week, Eleanor McCullen stakes out a spot outside the Planned Parenthood clinic here and tries to persuade women on their way in to think twice before having an abortion.


But she has to watch her step. If she crosses a painted yellow semicircle outside the clinic’s entrance, she commits a crime under a 2007 Massachusetts law.


Early last Wednesday, bundled up against the 7-degree cold, Ms. McCullen said she found the line to be intimidating, frustrating and a violation of her First Amendment rights. The Supreme Court will hear arguments on Wednesday in her challenge to the law.


The state’s attorney general, Martha Coakley, who is the lead defendant in the suit, said the 35-foot buffer zone created by the 2007 law was a necessary response to an ugly history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.


“This law is access balanced with speech balanced with public safety,” Ms. Coakley said. “It has worked extremely well.”


She added that there was every reason to think the law was constitutional in light of a 2000 decision from the Supreme Court upholding a similar Colorado law. “Nothing has changed except the court,” Ms. Coakley said.


The court’s membership has indeed changed since the 2000 decision, Hill v. Colorado, with the court growing more receptive to some free-speech claims and some restrictions on the right to abortion.


On Wednesday morning, Ms. McCullen said the law frustrated her attempts to talk to women entering the clinic. She said she had just moments to try to make contact before she had to pull up short.


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By law, Ms. McCullen must stay beyond a buffer zone outside the clinic’s entrance, which she says violates her right to free speech.
She is 77, and she said she posed no threat. “I am 5 feet 1 inch tall,” she said in a sworn statement filed in the case. “My body type can be described as ‘plump.’ I am a mother and grandmother.”


Even after the buffer zone was imposed, she said in a 2011 deposition, she had persuaded more than 80 women not to have abortions. She added that the zone had caused her to miss five or six opportunities to connect each day.


As she talked with a reporter, she scanned the people walking toward the clinic, on a busy stretch of Commonwealth Avenue near the Boston University campus. Most walked straight through the zone, oblivious to it.


But as three young women made a path for the door, a second protester, Mary O’Donnell, called out from the far side of the yellow line. Her tone was conversational, and her words were partly muffled by passing traffic.


“Please allow us to help you,” Ms. O’Donnell said. “It’s not too late to change your mind.”


The women kept walking.


Ms. O’Donnell, 81, said she found the line baffling. “This is wrong,” she said. “It’s bizarre.”


The Supreme Court’s 2000 decision upheld a complicated law that established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent.


Massachusetts experimented with a similar law but found it inadequate.


In testimony before a legislative committee in 2007, Capt. William B. Evans, then a police commander and as of Thursday the city’s police commissioner, said the floating-bubble approach made his officers’ job impossible. “I like to make the reference of a basketball referee down there, where we’re watching feet, we’re watching hands,” he said.


The 2007 law is simpler. It does away with floating bubbles and the need to determine who approached whom and whether the listener consented.


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Mary O’Donnell outside a Boston clinic’s restricted zone.
Credit...Evan McGlinn for The New York Times
The law bars everyone from entering or staying in fixed buffer zones around entrances to reproductive health care facilities. There are exceptions for people going into or coming out of the building, people using the sidewalk to get somewhere else, law enforcement officials and the like, and clinic employees.


That last exemption, for clinic employees, tilts the scales in favor of their point of view, said Mark L. Rienzi, a lawyer for Ms. McCullen and other protesters.


“The government does not have the ability to decide,” he said, “that its public sidewalks are open for speakers on one side but not speakers on the other side.”


Inside the clinic, past a security guard and a metal detector, dozens of women waited for various appointments, including for contraception, Pap smears and abortions.


A volunteer escort, who asked not to be named because she said she feared for her safety, said the buffer zone had done much to decrease tensions. On Saturday mornings, when the sidewalk can get crowded with protesters, she waits outside the yellow line and helps women find their way inside, she said.


She said her role was not that of an advocate or a counselor. “If somebody is asking a question,” she added, “obviously we’ll answer them.”


In an interview at her office in the clinic, Martha M. Walz, the president of Planned Parenthood League of Massachusetts, said escorts were under strict instructions to avoid some topics. “They may not talk about the patient’s health care,” she said.


Ms. Walz was a member of the State House of Representatives when the 2007 law was passed, and she was one of its main sponsors. “It’s made a tremendous difference,” she said. “I describe the situation now as peaceful coexistence.”


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A Planned Parenthood clinic in Boston.Credit...Evan McGlinn for The New York Times
The buffer zone is small, she said. (It is the length of two parking spaces and takes just seconds to traverse.) “The only thing that’s before the court,” she said, “is the last seven seconds of a patient’s or a staff member’s walk to the door.”


Mr. Rienzi, the protesters’ lawyer, said that missed the point. “When you make people stand behind a line and make them shout,” he said, “that can diminish them in the eyes of the audience.”


The Supreme Court’s 2000 decision has been harshly criticized, including by prominent supporters of abortion rights.


Laurence H. Tribe, the Harvard law professor, said the decision was “right up there” among the candidates for the worst blunders the Supreme Court committed that term.


“I don’t think it was a difficult case,” he said at the time. “I think it was slam-dunk simple and slam-dunk wrong.”


Floyd Abrams, a First Amendment lawyer, said the Massachusetts law was no better than the one upheld in 2000.


“The protections of the First Amendment do not evaporate the closer one comes to an abortion clinic,” he wrote in an email. “Access must be protected; so must speech.”


The 2000 decision was decided by a 6-to-3 vote, with Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor in the majority. They have been replaced by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and their votes may alter the balance.


In his dissent in 2000 in the Hill case, Justice Anthony M. Kennedy said the majority opinion contradicted “more than a half-century of well-established First Amendment principles” and for the first time approved “a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.”


Law professors defending the 2007 Massachusetts law filed a supporting brief in the case, McCullen v. Coakley, No. 12-1168, pointing out that buffer zones also exist around polling places and funerals. In a supporting brief filed for Planned Parenthood, Walter E. Dellinger III, a former acting United States solicitor general, reminded the Supreme Court that it forbade protests on its own plaza.


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