WASHINGTON -- Abortion remains an issue that divides the Supreme Court, but the justices had less disagreement Thursday in defending the free speech rights of abortion opponents.
The court ruled unanimously that Massachusetts went too far -- literally -- when it created 35-foot buffer zones around abortion clinics to keep demonstrators away from patients.
The decision united Chief Justice John Roberts and the court's four liberals, who said the distance improperly removed demonstrators from public sidewalks and spaces. The other conservative justices would have issued a more sweeping verdict, striking down the ban on grounds that it targets abortion opponents' specific point of view.
"Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks -- sites that have hosted discussions about the issues of the day throughout history," Roberts wrote. While the state has an interest in public safety, it "pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers."
Although the court had upheld an eight-foot buffer zone in Colorado in 2000, the Massachusetts law passed in 2007 went 27 feet farther. During oral arguments in January, that had even the court's liberal, female justices wondering if the Bay State had gone too far. "That's a lot of space," Justice Elena Kagan said.
The victory by 77-year-old Eleanor McCullen and her fellow demonstrators didn't tip the balance on the court over abortion as a medical procedure. Roe v. Wade, the 1973 decision legalizing abortion, still stands. The justices this term refused to consider lower court decisions striking down Arizona's ban on abortions after 20 weeks of pregnancy and Oklahoma's restrictions on abortion-inducing drugs and requirements for ultrasound tests.
Nor did the ruling unite the justices on free speech rights. Earlier this year, they ruled that an anti-war protester could be kept away from a California military base and that political protesters could be moved by Secret Service agents away from former President George W. Bush.
What remains to be seen is whether the new ruling could have national impact on the practice of erecting buffer zones and public protest zones. It could open others to question, such as those outside polling places, political conventions, funeral services -- even the court's own plaza.
After a federal district judge ruled last year that a 1949 law barring demonstrations on court property was unconstitutional, the court quickly issued a regulation that has the same effect. Roberts — who did not speak at all during oral arguments in the abortion case — approved the regulation.
The court's other four conservative justices agreed with the verdict but would have gone further by striking down the Massachusetts law as one that is based on demonstrators' viewpoint.
"It is clear on the face of the Massachusetts law that it discriminates based on viewpoint," Justice Samuel Alito wrote. "Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination."
McCullen and other abortion opponents have sought for years to waylay women on their way to getting abortions by offering advice and alternatives.
"Today's ruling means I can offer loving help to a woman who wants it, and neither of us will go to jail for the discussion," McCullen said in a statement released by her attorneys. "I am delighted and thankful to God that the court has protected my right to engage in kind, hopeful discussions with women who feel they have nowhere else to turn."
The Massachusetts buffer zone was enacted because of past violence, disruption and congestion at some of the state's 11 reproductive health clinics. In 1994, two clinic employees were shot and killed.
The law is "justified solely by legitimate government interests in public safety and health care access," the state argued.
But Mark Rienzi of Alliance Defending Freedom, McCullen's attorney, noted that most of the trouble occurred at the Boston clinic on Saturday mornings, a situation he said local police could manage.
"The government cannot reserve its public sidewalks for Planned Parenthood, as if their message is the only one women should be allowed to hear," Rienzi said Thursday.