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Federal appeals court upholds Mass. abortion clinic buffer zone law

E-mail|Link|Comments () July 9, 2009 07:36 PM

By Martin Finucane, Globe Staff

A Massachusetts law that bans protesters from a 35-foot buffer zone around abortion clinic entrances has been upheld by a federal appeals court.

The First US Circuit Court of Appeals in Boston ruled Wednesday that the law did not infringe on the free speech rights of protesters. It said the law, passed in 2007, responded to "repeated incidents involving violence and other unduly aggressive behaviors in the vicinity of reproductive health care facilities."

The law, the court said, "represents a permissible response by the Massachusetts Legislature to what it reasonably perceived as a significant threat to public safety."

Massachusetts Attorney General Martha Coakley said in a statement she was "pleased that the First Circuit has upheld this important law, which enhances public safety and access to medical facilities, while preserving the right to engage in expressive activity on public ways and sidewalks near clinics."

But Tim Chandler, legal counsel for the Alliance Defense Fund, which helped to represent the plaintiffs, said pro-life advocates "shouldn’t be penalized for expressing their beliefs."

"The government cannot single them out for punishment simply because they want to share their message with people entering the clinic. The government simply cannot create censorship zones where the First Amendment does not apply in order to silence a particular viewpoint," Chandler said in a statement. He said ADF and its allies were evaluating the "next legal step."

The lawsuit was filed in January 2008 by five abortion protesters. US District Judge Joseph Tauro rejected their claims in August 2008. The plaintiffs then appealed.

The appeals court said the law was "content-neutral" – applying no matter what view protesters were expressing. It also said the law was "narrowly tailored, and leaves open ample alternative channels of communication."

The law, which was an update to a 2000 law that called for a floating buffer zone, sets up a fixed 35-foot buffer zone near any reproductive healthcare facility and bars anybody from entering or remaining within it unless they work at the clinic, are entering or leaving it, are public safety or other municipal officials, or are just walking through going somewhere else.

The 2000 law was updated after abortion-rights advocates, clinics, and police complained it was difficult to enforce.

Judge Tauro determined that the 2007 law didn't regulate speech, merely the place in which speech might occur, and that it was enacted in response to safety and law enforcement concerns.

The plaintiffs, the appeals court noted, argued on appeal that the law had a "content-neutral patina" that masked a "more sinister reality" – that the Legislature's true motive was to curb anti-abortion speech.

But the appeals court said the plaintiffs' assertions were unsupported by evidence. "Our independent review of the record confirms that the legislative factfinding adequately underpins what the legislature wrought," Judge Bruce Selya wrote in a 32-page opinion for a three-judge panel of the court.

Attorneys for the plaintiffs couldn't immediately be reached for comment.

Massachusetts began moving towards a buffer zone law after the slayings of two clinic workers in Brookline in 1994 shocked the nation.

Twenty-two-year-old abortion opponent, John C. Salvi III, shot two clinic workers to death and wounded several others. Salvi later committed suicide in prison while serving two life sentences.