Abortion Foes Argue For Space Supreme Court Hears Issue Of ‘Bubble Zone’ Separating Protesters At Clinics

It took everyone in the Supreme Court chamber Wednesday less than a minute to get an idea of what was at stake in a case involving the rights of anti-abortion protesters to deliver their message up close.

Jay Alan Sekulow, the lawyer for those seeking a constitutional right to get within persuading distance of patients and doctors outside clinics, began his presentation in a loud, enthusiastic voice.

Chief Justice William H. Rehnquist toned him down: “We can hear you quite well if you lower your voice.”

The lawyer obliged, proceeding in modulated tones to challenge a judge’s order requiring abortion foes to remain at least 15 feet from anyone entering or leaving clinics in the Buffalo and Rochester, N.Y., areas.

That “bubble zone” around people who are targets of protests, Sekulow argued, restricts too tightly the free-speech rights of abortion opponents, thus violating the First Amendment.

Justice Stephen G. Breyer picked up on the proximity issue, asking Sekulow why a 15-foot limit would interfere with anyone’s message. “We’re 15 feet away, and I can hear you quite well, without a microphone,” the justice said. “We’re having a conversation.”

There is a difference, Sekulow suggested.

The restriction at issue in this case, he said, operates not in a courtroom, but on “city sidewalks, city streets, amid the hustle and bustle of metropolitan areas.” In that setting, Sekulow said, if one wants to try to dissuade someone from doing something, it must be “an intimate conversation,” or it can’t happen.

The opening exchanges led the court into spirited exchanges about what can happen to free speech when a “keep-your-distance” zone is set up amid robust public encounters about issues as divisive as abortion. Frequent references were made to the distances between the justices and the lawyers and to how those distances affected communication.

By the end of the hearing, it appeared that Sekulow and his anti-abortion clients might have gained just enough votes - five - to support some expansion of their right to do what they call “sidewalk counseling” outside clinics: seeking to persuade women not to have abortions and doctors not to perform them.