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Justices appear divided over limits on anti-abortion protesters

By Laurie Asseo, Associated Press, 01/19/00

WASHINGTON - Supreme Court justices appeared divided Wednesday on whether limits on "sidewalk counseling" by anti-abortion protesters violate their free-speech rights in the name of protecting patients' privacy.

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Several justices expressed doubts that a Colorado law squelches protesters' speech by requiring them to stay eight feet away from people entering health-care clinics unless the person consents.

"You certainly can convey anything you want to convey orally from a distance of eight feet," Justice Sandra Day O'Connor said. "This isn't some unusual provision."

But some justices were troubled that the law could apply broadly to any such activity outside a building, even when a medical office is only one of many offices in a large building.

"You're curtailing a lot of other activity that may not be relevant to the health-care facility," Chief Justice William H. Rehnquist said.

Justice Antonin Scalia asked, "In the public forum outside in the street, can we have a law that enables people to turn off unwelcome speech?"

The justices are expected to rule by July on the Colorado law, which affects protests within 100 feet of clinic entrances. The law, upheld last year by the Colorado Supreme Court, bars people from approaching within eight feet of anyone -- without their consent -- to protest, counsel or hand them a leaflet.

"There is a problem at health-care facilities, a problem of intimidation and violence," said Justice Department lawyer Barbara D. Underwood, arguing in Colorado's support.

Colorado's lawyer, Michael E. McLachlan, contended the law was written neutrally because "it takes no side on the debate." He said there had been no prosecutions under the law thus far.

Attorney Jay A. Sekulow, representing three protesters who challenged the law, said it "makes the peaceful distribution of a leaflet, the display of a sign ... a crime if prior consent is not obtained."

Such limits violate the Constitution's First Amendment free-speech guarantee, Sekulow said, arguing that protesters can only be barred from blocking or impeding access to abortion clinics.

Justice Stephen G. Breyer suggested the law may aid free speech because it "makes clear what you can do and what you can't do" instead of having to go to court to decide whether someone's actions counted as harassment.

Scalia and Rehnquist asked whether such a law could be applied to labor union picketing. Underwood said it could only if there were similar findings that people were being intimidated by picketers.

Outside the court building, Leila Jeanne Hill, one of those who challenged the law, held up a postcard with a smiley face on it and said, "I think we're going to have our First Amendment rights back this summer."

Rep. Diana DeGette, D-Colo., who wrote the law as a Colorado state lawmaker, said protesters outside clinics are not as low-key as Hill was Wednesday.

"They do not hold up smiley faces," DeGette said. "We don't think it's too great a burden to ask the protesters not to stand in front of patients and try to physically or psychologically block them."

Abortion-rights advocates said Wednesday scores of abortion clinics are targets of violence. The Feminist Majority Foundation said 20 percent of 360 clinics that responded to a 1999 survey said they experienced incidents such as blockades, invasions, bomb threats or bombings within the previous year.

Eighteen states are backing Colorado. The demonstrators are being supported by, among others, the AFL-CIO and the American Civil Liberties Union, which expressed concern about limits on protest activity.

The Supreme Court reaffirmed the right to abortion in 1992, and the justices have addressed the abortion-protest issue twice before.

In 1994 they upheld a 36-foot demonstration-free zone around a Florida clinic. In 1997, the court upheld a 15-foot buffer zone around New York abortion clinic entrances but struck down a judge's order for a "floating buffer zone" requiring protesters to stay 15 feet away from people as they entered or left the clinics.

The 1993 Colorado law was enacted in response to what the state's lawyers called "a history of obstructive demonstrations" outside abortion clinics by protesters who grabbed, surrounded and yelled at patients.

The law was challenged by Hill, Audrey Himmelmann and Everitt Simpson Jr., who said they merely advised women of alternatives to abortion.


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