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ERLC challenges abortion clinic buffer zones

WASHINGTON (BP) — The Southern Baptist Ethics & Religious Liberty Commission has called on the U.S. Supreme Court to protect the First Amendment rights of speech and assembly outside abortion clinics.

In a friend-of-the-court brief, the ERLC urges the justices to invalidate a Massachusetts buffer zone law and to reverse its own previous opinion upholding a similar law in Colorado.

Oral arguments in the case, McCullen v. Coakley, are expected in early 2014. They are not scheduled for this fall’s portion of the next court term, which opens in October.

The ERLC joined nine other organizations in signing onto the brief filed Sept. 16 by the Christian Legal Society (CLS).

In the case, the First Circuit Court of Appeals in Boston upheld in January a 2007 Massachusetts law that establishes a 35-foot zone around the entrances and driveways of abortion clinics. The measure bars pro-life sidewalk counselors from entering that zone to talk to women considering an abortion or scheduled for one unless those women provide consent.

The law protects the rights of patients while also ensuring pro-lifers could exercise their First Amendment rights, the appeals court said in its opinion. Pro-lifers contend, however, the scope of the buffer zone makes it almost impossible to speak to women going to the clinic.

The ERLC-endorsed brief argues that the law violates a sidewalk’s legal status as a public forum open to peaceful assembly and speech. It also contends such a law has far-reaching implications.

“If Massachusetts can close off the sidewalks surrounding reproductive health facilities to peaceful expressive activity, then the government can prohibit expression in a wide range of circumstances,” according to the brief.

A state, the brief says, “might seek to undermine union strikes by closing off public sidewalks surrounding factories to peaceful expressive activity. Or the state might seek to stifle criticism of a controversial legislative policy by excluding peaceful expressive activity from the public sidewalks near the state capitol.”

Like Massachusetts has done with the buffer zone law, a state “could offer high-minded justifications” for such a restriction, but it would ultimately “undermine the public forum,” the brief says.

The ERLC-backed brief appeals to the Supreme Court to reverse itself on a 2000 opinion regarding a Colorado law that also placed limitations on pro-lifers. The justices voted 6-3 in the Hill v. Colorado decision to uphold that measure, which established a 100-foot zone around abortion clinic entrances. Inside that zone, a pro-lifer needs permission in order to get within eight feet of a person to counsel or distribute a handout.

That opinion, like the Massachusetts law, “is at odds with the overwhelming thrust of this Court’s free speech jurisprudence, which protects the ability of speakers to communicate to unwilling listeners,” the brief says.

“The peaceful and non-confrontational expression” by the pro-lifers challenging the Massachusetts law fits easily within the Supreme Court’s free speech philosophy, “which permits even hurtful speech, expression, and protest,” according to the brief.

The high court’s opinion on the Massachusetts law could affect ordinances in several major U.S. cities that have enacted similar buffer zone laws.

Joining the ERLC on the CLS brief were the National Association of Evangelicals, U.S. Conference of Catholic Bishops, National Hispanic Christian Leadership Conference, American Bible Society, Christian Medical Association, Lutheran Church-Missouri Synod, Intervarsity Christian Fellowship/USA, Institutional Religious Freedom Alliance and International Society for Krishna Consciousness.

The ERLC signed on to another friend-of-the-court brief filed Sept. 16 by CLS, this time with the Sixth Circuit Court of Appeals in Cincinnati, Ohio. In Domino’s v. Sebelius, the brief supports the religious freedom of a business owner to refuse to abide by the Obama administration’s abortion/contraception mandate under the 2010 health care law. That rule requires employers to pay for coverage of contraceptives, including ones that can cause abortions.
With reporting by Baptist Press assistant editor Erin Roach.