Published January 30, 2014
The current U.S. Supreme Court debate over whether to maintain buffer zones restricting protestors at Massachusetts reproductive clinics returns to familiar constitutional territory justices already have ruled on, UB Law School faculty member Lucinda Finley says.
Finley, the Frank G. Raichle Professor of Trial and Appellate Advocacy and UB vice provost for faculty affairs, successfully argued in 1996 before the Supreme Court in favor of establishing a 15-foot buffer zone around Western New York reproductive health clinics to protect clients from harassment from protestors. This time, with the Supreme Court appearing evenly divided while hearing arguments earlier this month in a First Amendment challenge to a Massachusetts law, Finley says the idea of buffer zones seem well-established and with ample judicial precedent.
“I’ve lived this issue as a lawyer for many years of protests, culminating in the murder of a doctor in Buffalo, and I argued the legitimacy of a buffer zone all the way to the Supreme Court, which upheld buffer zones against a First Amendment challenge,” she says.
Because of that ruling — Schenck v. Pro-Choice Network of Western New York — there is a 15-foot buffer zone around the doorway and driveway entrances of Western New York reproductive clinics. There also are buffer zones in polling places, funerals and at the Supreme Court building itself, a precedent that seems established and approved by the Supreme Court, according to Finley.
“I do not expect the Supreme Court will rule you can never use a buffer zone,” she says. “Buffer zones are basically justified as public safety rules, ensuring safety of traffic and free flow of pedestrians, along with the ability of people to go to a clinic without harassment, pushing, shoving, you name it.
“Given the U.S. Supreme Court twice upheld buffer zones around reproductive clinics, it surprised me and many other people they even took the case in Massachusetts.”
Finley says the fact the Supreme Court agreed to hear the case of Massachusetts buffer zones could reflect the change in composition of the Supreme Court justices since 1996 when they upheld the right to maintain buffer zones in Western New York, along with upholding a similar statute in Colorado in 2000.
“The fact they took the case and the oral questions they asked suggest new justices who replaced (Sandra Day) O’Connor and (William) Rehnquist are more skeptical about the need for buffer zones,” Finley says.
A reasonably informed guess may be the judges think 35 feet is too far to push away protestors, Finley says.
“It may simply be the Massachusetts case will come down to if someone wants to try to talk with someone with one-on-one public engagement, they have to be able to speak in conversational tones but not so close that they harass the person.
“We can’t speculate until we see the decision whether there will still be leeway to establish smaller protest-free zones around the clinic.”
The Supreme Court’s deliberations raise speculation on what the buffer-zone decision will be and how that will affect the ongoing pro-life, pro-choice debate around abortion. When hearing arguments on the case Jan. 15, four of the more liberal justices asked questions indicating they believed the 35-foot buffer zones created by the 2007 law were a valid response to decades of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two clinics in 1994.
The court’s more conservative members questioned the need for the law, describing the buffer zones as a blunt and selective instrument. But Chief Justice John G. Roberts Jr., who almost certainly holds the crucial vote, asked no questions, raising speculation on the court’s final decision.