[S]ome justices said they were concerned that the law restricts speech in a way that is not neutral among viewpoints: clinic workers can talk to patients inside the buffer, while those who object to abortion cannot.If the majority decides for the plaintiff in the case, 77-year-old Operation Rescue anti-abortion protester Eleanor McCullen, it would reverse or narrow the scope of the 14-year-old ruling in Hill v. Colorado that concluded the state's buffer law was constitutional. The eight-foot "floating" buffer zones around individuals prescribed in Colorado protect clinic clients from protesters who previously got right in their faces trying to persuade or shame them into choosing not to have an abortion. Such confrontations nationwide sparked a counter-movement by pro-choice forces that included volunteer escorts for women arriving at Planned Parenthood and other clinics that provide abortions.
The justices also appeared to worry that the 35-foot zone is too big, and some voiced general concern with the concept of restricting speech on a public sidewalk.
Since Hill was decided, other states besides Colorado have imposed their own buffer zones. The questions before the Court are two. Is the Massachusetts law permissible under the previous ruling or does it go too far? Or should Hill be reversed completely?
For reproductive rights advocates, the answer emerges from experience:
In the present day, “We see a lot of protesters actually threatening, intimidating women, doctors, administrative staff as they’re trying to get into the building,” Ilyse Hogue, president of NARAL Pro-Choice America, said before the hearing.McCullen claims the buffer zone violates free-speech rights and makes it more difficult to communicate "It's America," she says. "I should be able to walk and talk gently, lovingly, anywhere with anybody."
That's an argument that resonates with many Americans in an era when protesters on a range of issues are often caged in "free speech zones" far from the targets of their demonstrations.
A key argument of McCullen and her lawyers and supporters is that the law isn't neutral because it allows clinic staff to talk to women seeking abortions to enter the buffer zone but forbids protesters from doing so without the women's consent. That's not the case with the Colorado law that the Court upheld.
Lyle Denniston at the Scotusblog notes:
Two noteworthy changes have occurred at the Supreme Court since the last full-scale ruling on anti-abortion demonstrations outside clinics: four of the Justices who were in the six-to-three majority in that case thirteen years ago have left the Court and been replaced, and the Court’s support of First Amendment rights has steadily expanded. The question now is whether those two changes will merge to make a difference on the issue. [...]The only justices still on the Court who voted with the Hill majority are Justices Ruth Bader Ginsburg and Stephen Breyer. The three who opposed the ruling are still there. One of them, Antonin Scalia, who believes the Roe v. Wade case was wrongly decided, wrote a scathing dissent in Hill:
The federal government has entered the case to support the state, relying on the federal government’s interest in protecting a 1994 federal law that bars force, obstruction, interference, and intimidation outside abortion clinics. When Massachusetts strengthened its buffer-zone law, the federal brief said, it did so in the wake of evidence of “the persistence of a disorderly and threatening climate at facility entrances.”
The protesters have drawn a wide array of support, well beyond the usual conservative legal advocacy groups and anti-abortion organizations. Support also comes from labor union organizations seeking to protect the right to picket, religious organizations interested in opportunities to proselytize, and a dozen states.
"Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today's decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent."Presumably Breyer and Ginsburg haven't changed their minds. Justices Sonia Sotomayor and Elena Kagan seem likely to support the Massachusetts law. But it's hard to imagine where the fifth vote would come from.