Supreme Court gives itself another chance to clarify abortion-protest limits

Wednesday, September 29, 1999

When it comes to setting limits on aggressive protests around abortion clinics, the Supreme Court apparently hopes that the third time is a charm.

The court agreed yesterday to consider how far government may go in restricting the kinds of protest demonstrations that have dogged clinics for more than a decade.

Twice before, in other clinic-protest cases, the court has tried to strike a balance between the free-speech rights of demonstrators and the safety of clinic staff and patients. In both instances, the court drew fine distinctions that allowed some kinds of restrictions but not others, leaving lower courts and legislators less than clear about what the First Amendment does and does not permit. Possibly hoping to clarify its position, the court will use a Colorado case to try again.

“This could very well represent a defining moment in First Amendment law,” says Jay Sekulow, chief counsel for the American Center for Law and Justice, which represents the demonstrators in the case before the court. “The Supreme Court has an important opportunity to clarify that there is no abortion-speech exception to the First Amendment on sidewalks surrounding abortion clinics.”

The case of Hill v. Colorado, which will be argued in January, challenges a 1993 state law that bars uninvited leafleting, picketing or counseling within eight feet of a person, inside a zone of 100 feet around a clinic entrance. Anti-abortion demonstrators Leila Jeanne Hill, Audrey Himmelmann and Everitt Simpson Jr. went to court seeking to overturn the law on the grounds that it prevented them from conveying entirely lawful messages to clinic patients.

But Colorado courts have upheld the law as a narrowly tailored approach to solving the problem – a problem which the Legislature identified as “a history of obstructive demonstrations” outside clinics.

Predicting how the high court will rule in the Colorado case is difficult, because the state law at issue reflects elements of the court’s past rulings in the area. In the 1994 case Madsen v. Women’s Health Center, the high court upheld a court-ordered protest-free buffer zone of 36 feet around clinic entrances, but struck down a more sweeping ban on approaching staffers and patients within 300 feet of a clinic.

Three years later, the court in Schenck v. Pro-Choice Network upheld a 15-foot buffer zone around the clinic building, but struck down a 15-foot “floating” buffer zone around individual staff members and patients as they approached and left the clinic.

That floating buffer zone, the court concluded, burdened “more speech than is necessary.” Because the protest-free zone “floats,” it would sometimes be difficult for demonstrators to know when they are violating it, the court said. The injunction creating the floating zone impinged too severely on the First Amendment, the court said. “Leafleting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment,” the court found.

The Colorado Supreme Court evaluated the state law in light of Schenck, but found it constitutional nonetheless. Because it was a legislative enactment rather than the product of a judge’s injunction, the Colorado buffer zone scheme was entitled to “greater deference,” the state court said. The buffer zones created by the law represented a “fair accommodation of two fundamental rights,” the state court said.

While abortion protest groups appear confident they will prevail before the court, that result is far from clear. But Colorado’s floating buffer zone is not unlike the one struck down in 1997. And the fixed buffer zone of 100 feet around clinics may also be viewed as broader than necessary to limit dangerous demonstrations.