No Free-Speech Barrier in Abortion Clinic Shield

(CN) - Anti-abortion protesters lost a constitutional challenge to a Massachusetts law that created a 35-foot buffer zone around clinic entrances.

After failing to present a facial challenge to the law in 2008, the seven protesters were left to challenge the law as applied at reproductive health care facilities in Boston, Worcester and Springfield.

U.S. District Judge Joseph Tauro entered judgment for the state after conducting a bench trial in August.

The 30-page ruling recounts the speech activities of each of the seven protesters, Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Eric Cadin, Mark Bashour, Nancy Clark and Cyril Shea

Smith said he prays the rosary out loud, 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.

Smith said his activities aim to "support in prayer the counselors so that they have success in talking the girls out of killing their babies."

Noting that the protesters gave estimates about how many women they have counseled, the court found that the Boston law is a valid regulation.

"In light of the testimony in this case, it is clear than an adequate alternative means of communication exist for plaintiffs to communicate their pro-life message," Tauro wrote. "While it is beyond a doubt that a 'degree of curtailment' exists because of the application of the buffer zone law, it is also evident that plaintiffs are still effective in communicating their message to their intended audience."

"Plaintiffs can be seen and heard by both willing and unwilling listeners approaching the main entrance to Boston Planned Parenthood," he added. "The record does not indicate that there are any barriers that would prevent willing listeners from stepping outside of the buffer zone to engage in a more in-depth conversation with the Plaintiffs in this case."

"While most women may choose to ignore plaintiffs' well-meaning overtures, this is not because the commonwealth has failed to leave open adequate alternative means of communication," the decision states. "Much as plaintiffs have the right to attempt to engage others in conversation outside Worcester Planned Parenthood, clinic patrons who do not want to engage with plaintiffs have a right to go about their business unmolested."

In 2000, the Supreme Court ruled in Hill v. Colorado that an 8-foot no-protest zone around health care facilities was constitutional. In his concurring opinion, Justice David Souter said that "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."

The question is not "whether a degree of curtailment' of speech exists but rather whether the remaining communicative avenues are adequate," Souter continued.

Courts in California and Pennsylvania have also recently seen challenges to the implementation of Hill.

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