Abortion foes ask judge to end clinic buffer zones

Say restrictions infringe on right to convey message

By Milton J. Valencia
Globe Staff / August 25, 2011

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A team of abortion opponents asked a federal judge yesterday to strike down a state law that creates a protest-free zone around the entrances, exits, and driveways of abortion clinics, saying the zones unconstitutionally infringe on their right to free speech.

The group argued that a review of the zones at Planned Parenthood facilities in Boston, Worcester, and Springfield shows that the zones restrict protesters from properly conveying their message against abortion and their offers to help expectant mothers. They called the issue serious, given that life and death are involved.

“There needs to be a means of true communication,’’ said Michael J. DePrimo, a civil rights lawyer based in Connecticut who represents several of the protesters in the case. They include an 84-year-old doctor, an 83-year-old grandmother, and a 30-year-old seminary student.

But Kenneth W. Salinger, an assistant state attorney general, argued yesterday that the buffer zones provide adequate opportunity to conduct lawful protests or to try to send a message to people seeking services from abortion clinics.

He said the lawsuit was based on protesters’ frustration that a majority of people do not want to listen to their message.

“They can, and do, share their messages outside the buffer zones,’’ said Salinger, adding that those who seek clinic services then make clear that they are not interested.

US District Court Judge Joseph L. Tauro told the lawyers to submit more documents and said he will then take the matter under advisement.

At issue is a 2007 law that established a 35-foot buffer zone between abortion clinic entrances and protesters, which supporters called the strictest state law of its kind in the nation. That law strengthened a buffer zone law enacted in 2000 that required that protesters stay at least 6 feet away from clinic patients once they reached an 18-foot radius of the clinic entrance.

Such laws - passed after John C. Salvi III went on a shooting rampage at two Brookline clinics in 1994, killing two women - have been upheld by the courts.

The US Court of Appeals for the First Circuit has already approved the language of the 2007 Massachusetts law, and the US Supreme Court refused to hear another appeal.

But DePrimo asked Tauro yesterday to strike down the law based on one last, unresolved legal issue: whether the state law, as applied in real life rather than on paper, allows for adequate means for protesters to send their messages to anyone visiting an abortion clinic.

DePrimo argued that it does not, saying the buffer zones actually push protesters much farther from entrances than 35 feet, because of the configuration of streets, parking lots, and buildings. He said the Planned Parenthood facility in Springfield moves protesters more than 100 feet from an entrance in one section of the property because a driveway is located there.

He said protesters, who he argued have been successful before in helping women decide against abortion, should be able to speak personally and compassionately with patients, and distribute brochures by hand, rather than have to yell and wave signs.

“There’s no way [one of the protesters] would have any opportunity to go up to that person and talk to that person,’’ DePrimo said. Anyone who passes out information about abortions or advocates against them within the buffer zone faces three months in prison.

Tricia Wajda of Planned Parenthood League of Massachusetts, said in a statement: “The 35-foot buffer zone is an important public safety measure that protects the privacy, dignity, and safety of patients and staff who come to work every day committed to providing the highest quality of care. While Planned Parenthood takes any challenge against the buffer zone law seriously, we are very hopeful that the law will remain intact and women, their families, and staff will continue to have the protection they need to have safe and harassment-free access into our health centers.’’

DePrimo argued that courts have upheld a person’s right not only to send a message to someone, but to have the means to try to persuade them. He also argued that state law must provide for an alternative means for protesters to spread their messages as personally as they have in the past.

But Salinger argued yesterday that the protesters, according to their own depositions, have had success in reaching out to patients even after the law was passed. He said an investigator with the attorney general’s office witnessed two protesters talking to a patient just before she entered the buffer outside the Boston clinic. The patient then left with the two protesters.

And the protesters have made their presence known in other ways, Salinger said. They have yelled out, “Your baby has a heartbeat,’’ and waved signs reading, “They’re killing babies here.’’

Some protesters routinely wave 8-foot tall crucifixes, and one often dresses as the Grim Reaper, Salinger said.

“A lot of people just have no interest in the message people are offering,’’ Salinger said. “They don’t need to pay attention to [the protesters’] message if they don’t want to.’’

Milton Valencia can be reached at