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Judges may keep protests from blocking abortion clinics, Supreme Court rules


WASHINGTON -- The Supreme Court gave judges across the nation clear but limited authority yesterday to keep abortion clinics open and functioning when they are targeted by anti-abortion blockades.

That power, however, may be used only to stop those who have tried to close clinics before or who pose a distinct threat to do so, the court majority made clear in the 6-3 ruling.

The mere prospect that protesters might show up outside a clinic is not enough to justify court-ordered protection for clinics by limiting protesters' free-speech rights in advance, the court indicated.

In its first full-scale decision on the constitutional questions arising from the sidewalk wars outside clinics, issued in the case of a clinic in Melbourne, Fla., the court said that judges may set up "buffer zones" near clinics but may not shunt protesters off to sites a block from clinics or a block from clinic staff members' homes.

The court also indicated that judges may not stop abortion foes from engaging in nonthreatening "sidewalk counseling" fairly close to clinics, if that does not keep patients from entering or leaving clinics.

The court announced the ruling as the last one of its term -- the last day of service of retiring Justice Harry A. Blackmun, best known for writing the original abortion rights ruling 21 years ago in Roe vs. Wade. Justice Blackmun joined the majority ruling yesterday.

Three dissenting justices and anti-abortion forces protested that the 6-3 ruling was a devastating loss for abortion foes' rights of free speech, while abortion rights supporters claimed it provided a new legal shield for clinics against abortion opponents' violence.

Mathew Staver, the Orlando, Fla., lawyer who argued the case for abortion foes, said the ruling turned the zones around abortion clinics "into a type of Tiananmen Square," with government officials deciding who could speak.

On the other side, Eleanor Smeal, president of Feminist Majority Foundation, called the ruling "a slam-dunk win for women, doctors and health care workers."

The decision, however, appeared to be the narrowest victory the clinics could have won. In fact, one justice in the majority argued that his colleagues had not gone far enough to enable judges to insulate clinics from abortion opponents.

The ruling dealt with judges' power to issue clinic-protection orders. It did not address the authority of legislatures or Congress to pass laws to protect clinics, although the court's reasoning appeared likely to have some impact on those laws, too.

Chief Justice William H. Rehnquist, who wrote the ruling, spelled out these limits:

* Judges may act to keep the doorways, nearby sidewalks and driveways to clinics free of anti-abortion demonstrators by creating a "speech-free zone" and forbidding all protests on those sidewalks and streets to make sure that patients and staff can enter and leave.

* Within the zone near the clinics, judges may order protesters to lower their voices or turn down the volume of loudspeakers. The zone at issue in yesterday's case was 36 feet wide; the court allowed that without saying it was the acceptable norm.

* Judges may not stop protests across the street from a clinic, or on adjacent private property, but may order demonstrators not to make so much noise that it disturbs patients at the clinics.

* Judges may not ban anti-abortion signs or pictures that can be seen from inside the clinics.

* Judges have no power to force protesters to stay a block away from clinics, or to stop them from setting up picket lines or other demonstrations near the homes of clinic staff members. The decision nullified a Florida judge's 300-foot buffer zone around clinics and around staff members' homes, saying that put too great a burden on free-speech rights.

Lawyers for anti-abortion activists said the ruling left many openings for anti-abortion "sidewalk counseling" and other forms of protest against clinics.

The ruling, some of those attorneys suggested, will provide ammunition as activists pursue constitutional challenges in federal courts to the new federal criminal law designed to protect clinics against force, threat or force, or obstruction. Eight such lawsuits are pending.

But abortion rights lawyers suggested that the ruling means Congress acted constitutionally in passing the federal law earlier this year.

Abortion rights groups worked yesterday to link the decision to clinics' need for protection from violent assaults, but the case the court decided had little directly to do with violence. None of the justices left in doubt that judges were free to act to prevent violence or a threat of it.

The dispute among the justices turned on access to clinics, and on how far judges could go to stop nonviolent activity that might threaten such access.

The chief justice's opinion said the need to assure women of access to clinics and other health facilities, and cities' need to keep open the sidewalks and streets around such facilities, justified some restrictions on anti-abortion demonstrators' rights. The ruling, however, upheld only the less-sweeping limits imposed by the Florida judge to protect the Aware Woman Center for Choice -- a clinic in Melbourne that has been the scene of a wave of protests.

One of the significant victories for clinics in the decision was the conclusion that judges may single out abortion foes for speech restrictions when they protest near clinics.

If the judges limit their anti-speech orders to individuals or organizations known to be threats to access to clinics, and if they confine the speech limits to areas very near clinics, they will be acting against the threats to clinics, not against the anti-abortion message, Chief Justice Rehnquist declared.

Justice Antonin Scalia, the court's most vigorous opponent of abortion rights, read an impassioned speech to announce the dissent he filed for himself and for Justices Anthony M. Kennedy and Clarence Thomas. Justice Scalia likened the new ruling to the one the court issued in 1944 upholding the military camp jailing of innocent Japanese-Americans during World War II.

"The court has left a powerful loaded weapon lying about today," for use against free speech rights not only of abortion foes, but of anyone else staging peaceful protests, Justice Scalia argued. He said the media would describe the ruling as one involving only abortion, but he said that would be wrong. The court, he declared, had made "new law, bad law" on the First Amendment.

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