WASHINGTON -- The Supreme Court will let lower-court judges work out how far to restrict anti-abortion protests outside the homes of doctors and clinic staff members.
As a result of several lower-court decisions in the past year, abortion opponents have no clear-cut notion on how far they can spread their demonstrations in a residential neighborhood, and doctors and clinic staff members have no definite idea about how wide their zone of privacy can be.
Yesterday, for the second time in six days, the court bypassed an appeal seeking clearer guidance on the clash of rights on residential sidewalks and streets. But the issue is an active one in lower courts and could return to the high court.
In the new case, a federal appeals court had ruled that the First Amendment generally means that anti-abortion protests may be banned only directly in front of the house of the doctor or staff member who is the protest's target.
If a city or a court tries to stop protests in front of neighboring houses, that probably will interfere with the demonstrators' free speech rights, the appeals court decided in a case involving Upper Arlington, Ohio -- the scene of protests by anti-abortion marchers from Dayton.
Early last week, the justices had left intact a New Jersey Supreme Court ruling that pickets could be kept up to 100 feet from the targeted home. That decision came in a case involving protests outside the home of a doctor in Westfield, N.J.
Those two decisions appeared to be at odds, and lawyers in each case urged the Supreme Court to rule anew on residential picketing. The last time the court faced that issue, in June 1994, it ruled that a 300-foot picket-free zone around a doctor's home was too wide. But it did not say how much smaller the zone had to be to satisfy the Constitution's free-speech guarantee.
The justices gave no reasons, this week or last, for refusing to be drawn back into the constitutional dispute. Last week, Justice Antonin Scalia filed a lone dissent when the court left intact the New Jersey decision. There were no known dissents when the Ohio case was cast aside.
Before the end of its term, the court may act for the first time on the constitutional challenges to the year-old federal law that makes it a crime to try to shut down abortion clinics through violence or threats. Two appeals from Alexandria, Va., are awaiting the court's attention.
In another order yesterday, the court refused to decide how much proof of child sexual abuse a state court must have before it can take away a parent's right to visit a child.
The Louisiana Supreme Court said that it would be unconstitutional to interrupt a parent's visitation rights for alleged abuse unless the proof is "clear and convincing." The justices left that ruling intact without comment.