WASHINGTON - The Supreme Court appeared evenly divided Wednesday as it heard arguments in a First Amendment challenge to a Massachusetts law that created buffer zones around abortion clinics in the state.
But a significant piece of data was missing: Chief Justice John Roberts, who almost certainly holds the crucial vote, asked no questions.
The court seemed otherwise split along ideological lines, with questions from its four more liberal members suggesting that the 35-foot buffer zone created by the 2007 law was a valid response to decades of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.
The court’s more conservative members questioned the need for the law and said it was a blunt and selective instrument.
“This is not a protest case,” Justice Antonin Scalia said. “It’s a counseling case.”
The lead plaintiff in the case, Eleanor McCullen, has said she seeks to engage in friendly conversations with women seeking abortions in an attempt to tell them they have alternatives. She added that the buffer zone frustrated her efforts and violated her First Amendment rights.
Justice Stephen G. Breyer said that only a general prohibition on entering the zone would work.
“It’s just tough to say whether they’re counseling somebody or screaming at somebody,” he said.
The justices debated whether and when buffer zones are permissible around funerals, slaughterhouses, fraternal lodges and the sites of labor disputes.
The justices and the lawyers arguing before them also tried out a host of analogies to give a sense of just how long 35 feet is, pointing to parts of the courtroom and people in it.
“I guess I’m just a little hung up on why you need so much space,” Justice Elena Kagan told Jennifer Grace Miller, an assistant state attorney general. Miller responded that the zone left ample opportunities for speech on other parts of the sidewalk near the clinics.
Mark L. Rienzi, a lawyer for McCullen, said the law was unconstitutional for at least two reasons. In limiting its application to abortion clinics, he said, the law effectively singled out one subject. And in allowing clinic employees to stay in the zone, it favored one side of the debate, he added.
“Public sidewalks occupy a special place in First Amendment analysis,” he said.
Justice Samuel A. Alito Jr. seemed to agree that the law made impermissible distinctions among speakers based on their point of view.
