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US supreme court justices appear sceptical of abortion clinic buffer zones US supreme court justices appear sceptical of abortion clinic buffer zones
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The battle lines of America's culture wars threatened to draw closer on Wednesday, as the supreme court questioned the constitutionality of buffer zones designed to keep pro-life activists away from abortion clinics.The battle lines of America's culture wars threatened to draw closer on Wednesday, as the supreme court questioned the constitutionality of buffer zones designed to keep pro-life activists away from abortion clinics.
Though a final decision will not be reached for several months, a narrow majority of justices on the court, which is dominated by a conservative bloc, appeared sympathetic to free speech arguments against at least parts of the Massachusetts law. Though a final decision will not be reached for several months, a narrow majority of justices on the court, which is dominated by a conservative bloc, appeared sympathetic to free speech arguments against at least parts of the Massachusetts law. 
“The government doesn't get to decide what is said on the public pavement,” said Mark Rienzi, the lawyer representing the pro-life activists who brought the case.“The government doesn't get to decide what is said on the public pavement,” said Mark Rienzi, the lawyer representing the pro-life activists who brought the case.
Lawyers representing Massachusetts said the buffer zones were necessary to stop women from being harassed or prevented from entering clinics by crowds of protestors, and insisted it was impractical to draft legislation that differentiated this from “peaceful conversation”.Lawyers representing Massachusetts said the buffer zones were necessary to stop women from being harassed or prevented from entering clinics by crowds of protestors, and insisted it was impractical to draft legislation that differentiated this from “peaceful conversation”.
But three conservative justices who’d previously showed their views by dissenting from an earlier supreme court decision to uphold similar buffer zones were joined by George Bush-appointee Samuel Alito in arguing that Massachusetts’ law amounted to discrimination against pro-life political views.But three conservative justices who’d previously showed their views by dissenting from an earlier supreme court decision to uphold similar buffer zones were joined by George Bush-appointee Samuel Alito in arguing that Massachusetts’ law amounted to discrimination against pro-life political views.
“You could create a complete silent zone, but that is not what this does; there is an exemption for employees,” said Alito.“You could create a complete silent zone, but that is not what this does; there is an exemption for employees,” said Alito.
“If two people stand outside the clinic and one says, 'Good morning, this is a safe place,' and the other says, 'Good morning, this is an unsafe place,' but breaks the law by doing so, how can a statute like that be considered viewpoint-neutral?”“If two people stand outside the clinic and one says, 'Good morning, this is a safe place,' and the other says, 'Good morning, this is an unsafe place,' but breaks the law by doing so, how can a statute like that be considered viewpoint-neutral?”
Even liberal justice Elena Kagan, who said she favoured the idea that everyone “should just take a step back”, revealed concerns about the size of the Massachusetts buffer zone, which is set at 35 feet. Even liberal justice Elena Kagan, who said she favoured the idea that everyone “should just take a step back”, revealed concerns about the size of the Massachusetts buffer zone, which is set at 35ft.
“That's not to say this statute doesn't have its problems in my view. I am a little hung up on why you need so much space,” Kagan said. “Thirty-five feet is pretty big. It's the width of this courtroom.”“That's not to say this statute doesn't have its problems in my view. I am a little hung up on why you need so much space,” Kagan said. “Thirty-five feet is pretty big. It's the width of this courtroom.”
Lawyers supporting Massachusetts disputed the courtroom analogy, insisting that the buffer outside the main clinic in Boston was only 22 feet once a recessed doorway was taken into account. “It's an NBA three-point zone, not the size of this court,” said US deputy solicitor general Ian Gershengorn. Lawyers supporting Massachusetts disputed the courtroom analogy, insisting that the buffer outside the main clinic in Boston was only 22ft once a recessed doorway was taken into account. “It's an NBA three-point zone, not the size of this court,” said US deputy solicitor general Ian Gershengorn.
But lawyers for the anti-abortion activists claim the distance is enough to make it hard for campaigners to engage in conversation with women entering the clinic and has encouraged shouting instead.But lawyers for the anti-abortion activists claim the distance is enough to make it hard for campaigners to engage in conversation with women entering the clinic and has encouraged shouting instead.
“If you sent me back 35 feet and asked me to make my argument you might hear me but there would be a significant difference,” Rienzi told the bench. “If you sent me back 35ft and asked me to make my argument you might hear me but there would be a significant difference,” Rienzi told the bench.
Justices Anthony Kennedy and Antonin Scalia were particularly dismissive of the need for the buffer zones, and questioned why existing federal laws against harassment could not be used instead.Justices Anthony Kennedy and Antonin Scalia were particularly dismissive of the need for the buffer zones, and questioned why existing federal laws against harassment could not be used instead.
“Even a dog understands the difference between being stumbled over and being kicked,” said Kennedy. “Are you saying federal law cannot tell when there is obstructionism and when there is not?”“Even a dog understands the difference between being stumbled over and being kicked,” said Kennedy. “Are you saying federal law cannot tell when there is obstructionism and when there is not?”
Scalia snapped at another Department of Justice lawyer for describing the activists as “protesters”.Scalia snapped at another Department of Justice lawyer for describing the activists as “protesters”.
“These people want to speak gently, not in a hostile manner,” he said.“These people want to speak gently, not in a hostile manner,” he said.
Jennifer Miller, an assistant attorney general, insisted that it was impossible to know in advance what their intentions were. “It would be extremely difficult to write a statute that addressed the problem,” she said.Jennifer Miller, an assistant attorney general, insisted that it was impossible to know in advance what their intentions were. “It would be extremely difficult to write a statute that addressed the problem,” she said.
This view was supported by Justice Stephen Breyer, who – like fellow liberals Kagan, Sonia Sotomayor and Ruth Bader Ginsburg – was broadly sympathetic to the view that states should be left to decide the best way to keep abortion clinics free from obstruction.This view was supported by Justice Stephen Breyer, who – like fellow liberals Kagan, Sonia Sotomayor and Ruth Bader Ginsburg – was broadly sympathetic to the view that states should be left to decide the best way to keep abortion clinics free from obstruction.
The case is likely to hang on the vote of chief justice John Roberts, a conservative, who left court pundits guessing as to his position by saying nothing throughout the hour-long hearing.The case is likely to hang on the vote of chief justice John Roberts, a conservative, who left court pundits guessing as to his position by saying nothing throughout the hour-long hearing.
Like Alito, Roberts was appointed by Bush and was not present for the case in 2000 that saw Scalia, Thomas and Kennedy dissent from a narrow decision to uphold the constitutionality of a similar buffer law protecting clinics in Colorado.Like Alito, Roberts was appointed by Bush and was not present for the case in 2000 that saw Scalia, Thomas and Kennedy dissent from a narrow decision to uphold the constitutionality of a similar buffer law protecting clinics in Colorado.
Joshua Wilson, a professor of political science at the University of Denver, said that while he expects the supreme court to strike down the Massachusetts law, with the possibility of others following suit, he believes any fears of a return to the aggressive anti-abortion street protests of the 1980s and 1990s are likely to be misplaced.Joshua Wilson, a professor of political science at the University of Denver, said that while he expects the supreme court to strike down the Massachusetts law, with the possibility of others following suit, he believes any fears of a return to the aggressive anti-abortion street protests of the 1980s and 1990s are likely to be misplaced.
“I think the anti-abortion activists will win this case and the law will be struck down,” said Wilson, author of The Street Politics of Abortion: Speech, Violence and America's Culture Wars. “I think the anti-abortion activists will win this case and the law will be struck down,” said Wilson, author of The Street Politics of Abortion: Speech, Violence and America's Culture Wars. 
“If they do, and you begin to see the unravelling of precedents, it will have an effect, particularly where you have active street front protests. But I don't think you will have large-scale blockades like they had in the 1990s. They grew out of particular circumstances that don't exist any more.”“If they do, and you begin to see the unravelling of precedents, it will have an effect, particularly where you have active street front protests. But I don't think you will have large-scale blockades like they had in the 1990s. They grew out of particular circumstances that don't exist any more.”
Such protests, he said, came out of a frustration that the Christian right felt with national electoral politics. However, Wilson points to the maturation and professionalisation of the anti-abortion movement into the more private arena of state legislative halls where it has had significant success in the intervening two decades.Such protests, he said, came out of a frustration that the Christian right felt with national electoral politics. However, Wilson points to the maturation and professionalisation of the anti-abortion movement into the more private arena of state legislative halls where it has had significant success in the intervening two decades.
Wilson cites the lawyers who've handled the case for the activists at various levels of the judiciary as representative of the "second generation of well-funded, organized, and effective conservative Christian public interest law firms and advocacy organisations".Wilson cites the lawyers who've handled the case for the activists at various levels of the judiciary as representative of the "second generation of well-funded, organized, and effective conservative Christian public interest law firms and advocacy organisations".
“No matter how [the case] is ultimately decided, the case is a sign of the movement’s success,” he said. “No matter how [the case] is ultimately decided, the case is a sign of the movement’s success,” he said. 
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