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Other view: Even in a 9-0 ruling, abortion counseling divides court

The U.S. Supreme Court on Thursday refined the First Amendment rights of abortion opponents who want to talk with prospective patients outside abortion clinics. In a 9-0 ruling, the court gave new guidelines to states and cities, Chicago included, that seek to regulate the opponents outside clinics: In essence, such statutes may protect public safety and keep opponents from blocking access or intimidating patients — but can’t stop opponents from speaking with women or offering them literature.

Yet on a topic this fraught with controversy, even a 9-0 ruling can leave the justices divided. Four of them argued that the opinion of Chief Justice John Roberts Jr., writing for himself and the court’s four more liberal members, didn’t go far enough to protect abortion opponents’ right to free speech. Justice Antonin Scalia, in a concurring opinion, complained that Roberts and the liberals were perpetuating an indefensible double standard: “There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” More on that below.

Thursday’s ruling struck down a 7-year-old Massachusetts law that dealt not so much with abortion protesters as with those who call themselves abortion counselors. Roberts’ opinion said the law, which set a 35-foot buffer zone around a clinic’s entrance that such counselors couldn’t enter, overly restricted activists such as 77-year-old lead plaintiff Eleanor McCullen who “seek only to inform women of various alternatives and to provide help in pursuing them” via “personal, caring, consensual


Over the years the Supreme Court has paid considerable attention to who can say what to whom outside abortion clinics. In a 2000 case, the justices let stand a Colorado law that established a 100-foot buffer zone outside all health facilities. Within that buffer the law created floating bubbles in which, say, anti-abortion activists can come within 8 feet of other individuals, such as women seeking abortions, without their consent.

In practice, that means someone such as McCullen can try to strike up a conversation without having to scream from afar, but can’t come closer than 8 feet to a clinic patient.

Thursday’s ruling sympathizes with that emphasis on free speech: The court sent an unambiguous message that governments have to be especially careful about restricting activists on public streets and sidewalks outside abortion facilities. Roberts wrote that Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”

Proponents of abortion rights say restrictions like this are needed to prevent protesters from hindering access to clinics and intimidating patients and clinic employees. Thursday’s ruling, with its emphasis on freedom of expression, signals that if the court is leaning in one direction or another, it’s not leaning toward more prohibitions on conversations and leafleting.

In our democracy, the people are supposed to have broad rights to debate issues and to translate their views into public policy.

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