Federal appeals court again upholds Mass. abortion clinic buffer zone law

By Martin Finucane, Globe Staff

A federal appeals court has again upheld the buffer zone law for Massachusetts abortion clinics, saying that the regulation protects the rights of patients while, at the same time, allowing others to express their opinions.

“Few subjects have proven more controversial in modern times than the issue of abortion,” the US Court of Appeals for the First Circuit said in its ruling today. “The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter health care facilities cannot seriously be questioned.

“The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others,” said the opinion, written by Judge Bruce M. Selya, who heard the case, along with two other judges.

The appeals court ruling affirmed a decision by US District Judge Joseph L. Tauro last February.

Mark L. Rienzi, a lawyer representing the plaintiffs, said they expected to appeal the decision to the US Supreme Court.

“The same rules have to apply to all speakers. The government cannot put peaceful pro-life speakers in jail, but give Planned Parenthood free rein on the same sidewalk,” he said in a statement.

The law creates a 35-foot fixed buffer zone around the driveways and entrances of clinics. The lawsuit, Eleanor McCullen et al v. Martha Coakley et al, was brought by seven people who regularly engaged in antiabortion counseling outside the three clinics.

“We are pleased that the court has once again upheld the Commonwealth’s buffer zone law which provides safe access to reproductive health care facilities while preserving freedom of expression,” Attorney General Martha Coakley, whose office defended the law, said in a statement. “We have always believed, and the court agreed, that the buffer zone leaves open the opportunity for civil engagement on public areas around these facilities while ensuring that patients and health care providers can safely access these facilities.”

The challenge to the law was the latest in a series. “This case does not come to us as a stranger,” the appeals court said, leading off its decision.

The court twice upheld an earlier version of the law, in 2001 and 2004. After the Legislature revised the law in 2007, the appeals court upheld it again in 2009. More challenges were launched in Tauro’s court. Tauro rejected them, but the plaintiffs appealed, leading to the court’s decision today.