Abortion clinic buffer law upheld

By Martin Finucane
Globe Staff / July 10, 2009
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A Massachusetts law that bans protesters from a 35-foot buffer zone around abortion clinic entrances has been upheld by a federal Appeals Court.

The First US Circuit Court of Appeals in Boston ruled Wednesday that the law did not infringe on the free speech rights of protesters. It said the ban, passed in 2007, responded to “repeated incidents involving violence and other unduly aggressive behaviors in the vicinity of reproductive healthcare facilities.’’

The law, the court said, “represents a permissible response by the Massachusetts Legislature to what it reasonably perceived as a significant threat to public safety.’’

Massachusetts Attorney General Martha Coakley said in a statement that she was “pleased that the First Circuit has upheld this important law, which enhances public safety and access to medical facilities, while preserving the right to engage in expressive activity on public ways and sidewalks near clinics.’’

But Tim Chandler - legal counsel for the Alliance Defense Fund, which helped represent the plaintiffs - said antiabortion advocates “shouldn’t be penalized for expressing their beliefs.’’

“The government cannot single them out for punishment simply because they want to share their message with people entering the clinic,’’ Chandler said in a statement. “The government simply cannot create censorship zones where the First Amendment does not apply in order to silence a particular viewpoint.’’ He said the fund and its allies were evaluating the “next legal step.’’

The lawsuit was filed in January 2008 by five protesters against abortion rights. US District Judge Joseph Tauro rejected their claims in August 2008. The plaintiffs then appealed.

The Appeals Court said the law was “content-neutral,’’ applying no matter what view protesters were expressing.

The law, which was an update to a 2000 law that called for a floating buffer zone, sets up a fixed 35-foot buffer zone near any reproductive healthcare facility and bars anyone from entering or remaining within it unless they work at the clinic, are entering or leaving it, are public safety or other municipal officials, or are just walking through.

The 2000 regulation was updated after abortion rights advocates, clinics, and police complained it was difficult to enforce.

Tauro determined that the 2007 law did not regulate speech, merely the place in which speech might occur, and that it was enacted in response to safety and law enforcement concerns.

The plaintiffs, the Appeals Court noted, argued on appeal that the law had a “content-neutral patina’’ that masked a “more sinister reality,’’ that the Legislature’s true motive was to curb antiabortion speech.