Supreme Court hears buffer zone arguments

By Patricia Zapor
And Tanya Connor

Praying is the best thing pro-lifers can do as they await the U.S. Supreme Court’s decision about buffer zones around abortion clinics, according to an activist from the Worcester Diocese who sat in on the oral arguments Wednesday.
Lead plaintiff Eleanor McCullen, of the Boston Archdiocese, said what pro-lifers should do now is “keep being loving and gentle, and caring about people.”
A ruling in McCullen v. Coakley is expected before the court adjourns for the summer in late June. Wednesday the court pressed attorneys about when it is constitutional to prohibit certain kinds of speech within 35-foot buffer zones, which include parts of public streets and sidewalks, around abortion clinics.
Plaintiffs had challenged Massachusetts Attorney General Martha Coakley and Daniel F. Conley, Joseph D. Early and Mark G. Mastroianni, in their official capacities as district attorneys for Suffolk, Worcester and  Hampden Counties, respectively, about the Massachusetts law. They said it limits their ability to exercise their rights, under the First and 14th Amendments, to free speech and equal protection under the law.
“My impression of the case is there will be at least five justices voting on our side, against the buffer zone,” Roderick P. Murphy, of  Blessed John Paul II Parish in Southbridge, told The Catholic Free Press in a telephone interview from Washington, D.C., Wednesday.
“There’s thousands of gentle, loving people across the country” doing sidewalk counseling outside abortion clinics, Mrs. McCullen said by telephone from Washington yesterday. “I’m representing them.”
A godmother to babies she helps save, the member of St. Ignatius Parish at Boston College does sidewalk counseling outside a Planned Parenthood facility in Boston.
Other plaintiffs who pray and/or counsel there are Father Eric Cadin, who was a seminarian when the lawsuit began; Jean Blackburn Zarrella, a woman in her 80s, and Gregory A. Smith, who holds a crucifix, said Michael J. DePrimo, one of their attorneys. Wednesday Atty. DePrimo helped Mark Rienzi, the attorney arguing the case before the Supreme Court.
Mr. Murphy, director of Problem Pregnancy, a Worcester center which offers alternatives to abortion, said he introduced the other plaintiffs to Atty. DePrimo. They are Nancy Clark and Mark Bashour, who do sidewalk counseling outside the Planned Parenthood League of Massachusetts abortion clinic across from Problem Pregnancy, and Cyril Shea, a retired orthopedic surgeon whose focus is a clinic in the Springfield area.
“I’m optimistic, but we do have to keep praying,” Mrs. Clark, of Our Lady of the Angels Parish in Worcester, said Wednesday. “I was over at Planned Parenthood today because I couldn’t get to D.C.” She said she prayed the rosary there for the oral arguments. Removing the buffer zone will be one step in the right direction in efforts to end abortion, she said.
“I’m cautiously optimistic,” said Mr. Bashour, of Our Lady of Perpetual Help, the Melkite Catholic parish in Worcester, who didn’t attend the oral arguments either. “I just think that we had a much stronger argument than the other side. Of course, when it comes to abortion, we always have the stronger side.”
“It was a beautiful day,” Mrs. McCullen said of the experience before the Supreme Court. “We believe Mark Rienzi did an excellent job. Good questions were asked by the justices. Mark was able to answer them. … We feel encouraged. … The truth was out there. … I hope it doesn’t go political. I hope it goes constitutional. The truth of the Constitution should be primary.”
“Pray for Roberts, that he does the right thing,” Mr. Murphy said of Chief Justice John G. Roberts. “Pray for Kagan, that she does the right thing,” he added, in reference to Justice Elena Kagan.
Justices Samuel A. Alito, Jr. and Anthony M. Kennedy “were the most against the buffer zone – at least verbally,” he said.
“Justice (Clarence) Thomas never says anything, but he was leaning over to (Justice Antonin) Scalia,” handing him a book, pointing to a page. Justice Scalia handed it on to the Chief Justice, he said, adding, “You wonder what … they’re doing.”
“It’s a civil rights case,” said Mr. Murphy, who attended the oral arguments with his wife, Jean. “Some of those liberals could vote against the buffer zone because it takes away civil rights.”
Atty. Rienzi argued that the Massachusetts buffer zone law “runs into a big First Amendment problem of even eliminating peaceful, consensual conversation that doesn’t disrupt anything.”
Several justices questioned attorneys on both sides about how a law could be structured narrowly enough to prevent aggressive conduct at clinics that was targeted by the Massachusetts statute, without stepping too far into First Amendment rights.
Attorneys conceded that no other states have laws creating such large restricted zones at abortion clinics.
The 2007 Massachusetts law prohibits most people, including those offering alternatives to abortion, from going closer than 35 feet to entrances, exits and driveways of abortion facilities.
“If it was a protest, keeping them back 35 feet might not be so bad,” Justice Scalia said of pro-lifers. “They can scream and yell and hold signs from 35 feet. But what they can’t do is try to talk the woman out of the abortion. It’s a counseling case, not a protest case.”
Jennifer Grace Miller, Massachusetts assistant attorney general, disagreed.
“It’s a congestion case,” she said, adding that people can have the conversations with clinic patients. “It’s just that those conversations are moved back a few feet.”
She said the 35-foot zone was necessary to prevent people from impeding the entrances to clinics. A federal law that prohibits blocking clinic entrances is not applicable, she said, because it only applies to activities such as sit-down protests and people chaining themselves to doorways, not to trying to converse with patients.
The last time the court considered the constitutionality of buffer zones around abortion clinics in 2000, it upheld Colorado’s law prohibiting abortion protests or sidewalk counseling within eight feet of people approaching any medical facility. The court ruled 6-3 that the law was not a regulation of speech but “a regulation of the places where some speech may occur.”

– Those interested in hearing the oral arguments can do so today through the website www.supremecourt.gov by clicking on oral arguments, argument audio and the case name, McCullen v. Coakley. The written transcript can also be found at www.supremecourt.gov.

– Patricia Zapor is a Catholic News Service reporter;  Tanya Connor is a Catholic Free Press reporter.