Mass. abortion clinic law allowed to stand

WASHINGTON -- The US Supreme Court yesterday let stand a Massachusetts law limiting protests near abortion clinic entrances, bringing to a close a saga that abortion rights advocates trace back to a 1994 shooting spree at two Brookline clinics.

The justices declined to hear an appeal of a lower-court decision upholding the constitutionality of a law prohibiting people from approaching abortion patients without their consent ''for the purpose of passing a leaflet . . . or engaging in oral protest, education, or counseling."

Passed in 2000, the law established a moving, protest-free bubble of 6 feet around a patient who is within 18 feet of the entrance to a clinic.

Massachusetts was the second state to pass such a sweeping buffer law, following Colorado in 1993. There are many other protest-free zones around clinics, but the rest were ordered by courts following specific incidents or threats.

Antiabortion advocates criticized the Massachusetts law as an unconstitutional infringement of their right to free speech, saying it selectively targeted their political point of view because the law did not apply to abortion clinic employees.

But after Massachusetts Attorney General Thomas F. Reilly promised to enforce the law neutrally against anyone approaching a patient without consent regardless of his or her views, the US Court of Appeals for the First Circuit held that it did not infringe on the First Amendment's guarantee of free speech.

Yesterday, the Supreme Court declined without comment to interfere with that ruling, drawing praise from Reilly, who, as the state's chief law enforcement officer, was the named defendant in the lawsuit.

''This is really a commonsense measure," Reilly said. ''It protects a woman's right to seek medical care without being intimidated and harassed, but it also allows people to express their views. But you can't be getting in someone's face."

Mary Anne McGuire, one of three female ''sidewalk counselors" who challenged the law, expressed disappointment at the court's decision. McGuire said she never ''gets into anyone's face," and the law interferes with their ability to offer free medical care and adoption services to abortion seekers.

''It's a First Amendment violation to have a law that applies only to my colleagues and myself because of the content of our message, when we're really just trying to help," she said.

Yesterday's decision capped a decade of political and legal wrangling over what the state should do to control protests near the entrances of abortion clinics, following one of the worst attacks on abortion providers in the country's history.

On Dec. 30, 1994, John C. Salvi III, a 22-year-old New Hampshire hairdresser, walked into a Planned Parenthood League of Massachusetts health center in Brookline and opened fire, killing receptionist Shannon Lowney, 25. He then went to a Preterm Health Services clinic nearby, randomly shooting again, and killing receptionist Lee Ann Nichols, 38. Five other people were wounded.

A jury rejected Salvi's plea of not guilty by reason of insanity, and he committed suicide in 1996 in the state prison in Walpole, where he was serving a life sentence. The clinic shootings prompted state lawmakers to file a bill to establish a buffer zone around abortion clinics, which the Legislature passed, after several attempts, in June 2000.

A month earlier, the US Supreme Court had voted 5 to 4 to uphold a similar law from Colorado. The majority held that the Colorado law did not violate the First Amendment because it applied to any protest, not just antiabortion rallies.

Abortion foes challenged the Massachusetts law, arguing that it was different from the Colorado statute, which applied to all healthcare facilities, not just abortion clinics. The Massachusetts law also includes an exception that allows abortion clinic workers to approach women entering clinics. Although a federal judge initially agreed with the challenge, an appeals court ultimately found that the law did not violate the First Amendment.

Mark Rienzi, who represented the sidewalk counselors, argued that, regardless of Reilly's pledge to enforce the law neutrally, clinic workers regularly approach potential patients to say ''don't listen to them and come with us," while the counselors must restrain themselves from doing the same for fear of prosecution.

''The statute allows clinic speakers to tell patients to come into the clinic and not listen to pro-lifers, but if a pro-lifer offers information about alternatives, such as adoption or free medical care, they can go to jail," Rienzi said. ''The First Amendment is supposed to stop that kind of discrimination."

But Dianne Luby, president and CEO of the Planned Parenthood League of Massachusetts, said the law has been useful in giving police a tool to stop intimidating behavior before it ''escalates" into violence.

''It has worked, I think, in terms of people who work here and law enforcement being able to say that there is a [limited] extent to which the protesters can go," Luby said. ''It has not worked in the sense that it's just not big enough."

Laurence H. Tribe, a professor of constitutional law at Harvard Law School, criticized as ''hypocritical" the courts' reasoning that the buffer zones laws do not target political speech, only harassment. Tribe said it would be more honest for courts to admit that the laws do target speech, but hold that the state may take that step in order to protect women.

In practice, the law has been used rarely. Both Rienzi and Luby said they knew of just one prosecution. Reilly credited the law with ''setting a tone" that protesters have largely respected, so that there has been little need to bring charges under it.