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Restriction on sidewalk counseling unconstitutional, Supreme Court told

WASHINGTON (BP)–Pro-life advocates who engage in sidewalk counseling outside abortion clinics have their free-speech rights unconstitutionally restricted under a Colorado law, the U.S. Supreme Court was told Jan. 19.

The justices heard oral arguments for the third time in recent years concerning limitations on anti-abortion activities outside clinics where abortions are performed. The latest case involves a 1993 Colorado law targeting the actions of sidewalk counselors and anti-abortion protesters. Sidewalk counselors seek to talk to pregnant women outside abortion clinics in order to persuade them to give birth to their babies.

The law limits activity within 100 feet of any entrance to a “health-care facility.” Within that radius, it prohibits anyone from approaching within eight feet of another person, unless that person consents, on a sidewalk or in “the public way” in order to persuade or protest. It bans not only counseling and verbal protest but the distribution of leaflets and the display of signs within eight feet of a person.

The Colorado law “converts protected speech into a crime,” Jay Sekulow told the justices, according to The New York Times. Sekulow, chief counsel of the American Center for Law and Justice, represented two women and a man who do sidewalk counseling and pro-life protesting at clinics.

The state of Colorado and the U.S. Justice Department argued the law did not violate free-speech rights.

“What this statute prohibits is moving in on somebody,” said Barbara Underwood, deputy solicitor general at the Justice Department, The Times reported.

The law is neutral and does not discriminate based on the content of the speech, the state argued. Associate Justice Antonin Scalia expressed doubts about that assertion.

“I think we know what it’s aimed at, which is abortion protest,” Scalia said, according to The Times. “I just wonder whether there’s any justification for singling them out.”

Associate Justice Sandra Day O’Connor seemed to indicate the distance restriction was not a problem.

“You certainly can convey anything you want to convey orally from a distance of eight feet,” she told Sekulow, according to Pro-life Infonet, an Internet pro-life news site. If someone wants to accept a leaflet, “they can and will, and it would be the same if it were one foot or eight feet,” she said.

Scalia, however, said sidewalk counseling is “a totally different entity when you do it from eight feet away,” Pro-life Infonet reported.

In a brief in behalf of the sidewalk counselors, the ACLJ contended the Colorado law conflicts with Supreme Court decisions striking down speech-free zones.

In a 1994 decision in Madsen v. Women’s Health Center, the justices upheld some court-ordered restrictions on anti-abortion activity but rejected an order prohibiting protesters from approaching a person without consent inside a 300-foot zone around the clinic. In 1997 in Schenck v. Pro-choice Network, the high court upheld a 15-foot fixed buffer zone around clinic entrances but struck down a part of the same court injunction establishing a 15-foot “floating bubble zone” around a person.

Chief Justice William Rehnquist and Scalia asked if the kind of limits in the Colorado law could be established in regard to labor picketing as well, according to Pro-life Infonet. “In the public forum out in the street, can we have a law that enables people to turn off unwelcome speech?” Scalia asked, according to the news site.

The possibility of limitations on speech outside the abortion context resulted in the American Civil Liberties Union, AFL-CIO and People for the Ethical Treatment of Animals filing friend-of-the-court briefs in support of the sidewalk counselors.

Among those signing onto briefs backing the state of Colorado were the state of New York, the American College of Obstetricians and Gynecologists, American Medical Association, National Abortion and Reproductive Rights Action League, National Organization for Women and the cities of Denver and Boulder.

The Justice Department cited the Freedom of Access to Clinic Entrances Act as a reason for its interest in the case. FACE bans interfering with a person’s entrance into an abortion clinic.

In a written statement released afterward, Sekulow said, “Sidewalk counselors who oppose abortion should not have to surrender their constitutionally protected, First Amendment rights because some people disagree with their message.

“The Supreme Court has an important opportunity to clarify that there is no abortion-speech exception to the First Amendment on sidewalks surrounding abortion clinics. This case may very well represent a defining moment in First Amendment law.”

Gloria Feldt, president of Planned Parenthood Federation of America, said in a written release her organization supports “rights of free expression” but the First Amendment “is not a license for lawlessness.”

Feldt went so far as to say anti-abortion protesters “are not just opposed to abortion. They also are opposed to medically accurate sex education, to contraception…. They gather at health-care centers to harass and intimidate women whose childbearing decisions they do not personally support.”

The pro-lifers who appealed the decision of the Colorado Supreme Court upholding the law are Leila Jeanne Hill, Audrey Himmelmann and Everitt Simpson.

A decision in Hill v. Colorado is expected before the court adjourns this summer.

Compiled by Tom Strode.

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