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No-speech, floating zones rejected by Supreme Court

WASHINGTON (BP)–The U.S. Supreme Court handed pro-life advocates seeking to persuade women not to have abortions a victory Feb. 19 when it rejected no-speech, floating bubble zones around people entering abortion clinics.

In the same opinion, Schenck v. Pro-choice Network, however, the justices upheld fixed buffer zones around clinic entrances.

In a case involving anti-abortion protests outside abortion clinics in Buffalo and Rochester, N.Y., the high court voted 8-1 to overturn a lower court’s establishment of floating zones, 15 feet in all directions, which move with those entering or leaving a clinic, saying they “burden more speech than is necessary to serve the relevant governmental interests.”

Only Associate Justice Stephen Breyer dissented in that part of the decision.

“This is a broad prohibition, both because of the type of speech that is restricted and the nature of the location,” wrote Chief Justice William Rehnquist in the majority opinion. “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

As expected, the majority, by a 6-3 vote, upheld the lower court’s placement of 15-foot buffer zones around clinic doorways, driveways and driveway entrances. In its 1994 Madsen v. Women’s Health Center decision, the Supreme Court upheld 36-foot buffer zones around entrances to a Florida clinic. The justices, however, struck down a no-approach zone extending 300 feet around the clinic.

Associate Justice Antonin Scalia, joined by Associate Justices Anthony Kennedy and Clarence Thomas, disagreed with the majority on the fixed zones: “There is no right to be free of unwelcome speech on the public streets while seeking entrance to or exit from abortion clinics.”

The federal court’s injunction bans physical abuse but allows sidewalk counseling which is not threatening and involves no more than two people. The injunction, however, says the person being counseled has a right not to listen. Once the person being counseled says he or she does not want to hear the message, the counselor must immediately “cease and desist” and move back at least 15 feet. The high court’s ruling maintained the “cease-and-desist” order for the fixed buffer zones.

“Overall, we’re very happy with the decision,” said Rob Schenck, general secretary of the National Clergy Council who participated as a pastor in the original protests in Buffalo. The rejection of the floating zones relieves sidewalk counselors “of the burden and the fear of federal prosecution, fines, even imprisonment for freely expressing their belief in the sanctity of human life. So it’s a day of relief for people of conscience,” he said.

Concerned Women for America Vice President Carmen Pate called the ruling a greater victory for the woman seeking an abortion than for pro-life protesters. “Now she will have an opportunity to hear the truth about abortion and will be given options for herself and her baby that are never presented once she enters the abortion clinic,” Pate said in a written statement.

Schenck criticized the court’s upholding of the “cease-and-desist” order for the fixed zones.

“Basically, the court is saying that we have a constitutional right not to hear what we don’t want to hear. That’s absurd,” Schenck said. “That could never be enforced.”

The National Abortion Federation, which represents abortion providers throughout North America, applauded the court’s protection of the fixed buffer zones. Marilynn Buckham, a NAF board member from a Buffalo clinic, said in a prepared statement the opinion “opens the door for us in federal court to get more distance for our fixed buffer zone.”

The ruling figures to have an impact not only on pro-life protests but possibly on street preaching and witnessing, homosexual rights demonstrations and labor picketing.

The decision “is a victory for anyone who believes in the right to free speech and the right to be able to advocate your beliefs on any issue,” said Will Dodson, the Southern Baptist Christian Life Commission’s director of government relations. While the case involved pro-life speech, Dodson said, “It must be recognized that the court’s decision had nothing to do with the cause being advocated — in this case, a pro-life message — but had to do with the fact that it was free speech generally.”