Massachusetts Abortion Clinic Buffer Upheld

(CN) - Anti-abortion protesters cannot challenge a Massachusetts law that created a 35-foot buffer zone around clinic entrances, the 1st Circuit ruled.

After losing their facial challenge to the Massachusetts law in 2009, seven anti-abortion protesters failed last year to challenge the law as applied at reproductive health care facilities in Boston, Worcester and Springfield.

A three-judge panel of the 1st Circuit affirmed last week, finding that "the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned."

The 32-page ruling recounts the speech activities of each of the seven protesters, Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Eric Cadin, Cyril Shea, Nancy Clark and Mark Bashour.

Smith said he prays the rosary aloud, sometimes with the aid of a loudspeaker, while carrying a crucifix on an 8-foot pole outside of a Boston Planned Parenthood protected by the buffer zone.

The plaintiffs also display baby caskets and sometimes dress up as the Grim Reaper, according to the ruling.

Some Planned Parenthood employees and abortion-rights advocates "yell, make noise, mumble, and/or talk loudly to clinic clients" in the buffer zones, but the court found that these actions do not constitute viewpoint discrimination under the First Amendment.

"The conduct described, without more, has nothing to do with the First Amendment," Judge Bruce Selya wrote for the appellate panel. "While loitering in a buffer zone by an exempt person is not expressive in nature and arguably does not serve the purposes of the act, such conduct, simpliciter, does not prefer one viewpoint over another."

Selya also distinguished the Massachusetts case from that of Hoye v. City of Oakland, where the 9th Circuit found that Oakland, Calif., failed to equally enforce its 100-foot bubble law.

"What is more, the employees and agents about whom the plaintiffs complain are not state actors but - unlike the municipal police officers in Hoye - are agents of a private entity (Planned Parenthood)," Selya wrote. "The act allows these individuals to be in buffer zones under the clinic employee exemption. But to the extent that they have tried to use their exempt status either to advocate a particular point of view or to drown out the plaintiffs' message, there is no allegation that such behavior has been sanctioned by the state." (Parentheses in original.)

The protesters failed as well to show that Massachusetts applied the law unfairly at the three clinics, according to the ruling.

"To be sure, the act curtails the plaintiffs' ability to carry on gentle discussions with prospective patients at a conversational distance, embellished with eye contact and smiles," Selya wrote. "But as long as a speaker has an opportunity to reach her intended audience, the Constitution does not ensure that she always will be able to employ her preferred method of communication."

Protesters still have adequate alternative means of communication, the court said.

"The First Amendment does not compel prospective patients seeking to enter an abortion clinic to make any special effort to expose themselves to the cacophony of political protests," Selya wrote. "Nor does it guarantee to the plaintiffs the same quantum of communication that would exist in the total absence of regulation. A diminution in the amount of speech, in and of itself, does not translate into unconstitutionality."

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