By Joe Spurr, Globe Correspondent
A federal appeals court ruled yesterday that the Massachusetts law that creates a buffer zone around abortion clinics does not violate the free speech rights of protesters.
The law, passed a year ago and upheld yesterday by the US Court of Appeals for the First Circuit in Boston, bans protesters from coming within 6 feet of clinic workers or patients inside an 18-foot buffer around the entrance of any clinic that performs abortions.
Lawmakers pushed for the law after gunman John Salvi killed two female workers at two Brookline abortion clinics in 1994.
Three antiabortion protesters sued to block the law, claiming it violated their First Amendment rights. They claimed it could not be “content neutral” because, among other reasons, it exempted clinic employees, who are allowed to escort women into clinics.
Last November, US District Court Judge Edward F. Harrington agreed, declaring the law unconstitutional. But a month later, the appeals court reinstated the law while it considered the case.
A similar Colorado law was challenged by antiabortion protesters but was upheld last year by the US Supreme Court.
“I’m not surprised by this ruling, but I’m very gratified by it,” said Dianne Luby, president of Planned Parenthood of Massachusetts. “To have a personal safety zone is absolutely critical to people seeking health care without being intimidated.. . . The Colorado ruling established a clear distinction between free speech and harassment.”
“This is a common sense measure that’s designed to protect women,” said state Attorney General Thomas F. Reilly. “It’s a proper balance between free speech and women’s rights.”
Dwight Duncan, a professor at Southern New England College of Law, who helped argue the case for the plaintiffs, said he expected the ruling after the appeals court’s preliminary decision in December.
“We weren’t that surprised about the result,” he said. “I think we’re disappointed because we were hoping for better - more vigilance as far as the First Amendment is concerned from the First Circuit.”
Duncan said he and other lawyers would study the ruling before deciding whether to pursue an appeal to the US Supreme Court. Another option would be to bring a new case arguing that the law, while constitutional, is being applied unconstitutionally.
The court acknowledged that the law affects antiabortion protesters more than others, but said what matters for the First Amendment is that the law “serves a legitimate purpose unrelated to expressive content.”
The plaintiffs argued that the exemption for clinic employees proved discrimination against antiabortion protesters.
“The abortion clinic escorts can swoop down on people and hustle them into the clinics, while the pro-life supporters have to stand back,” Duncan said. “That is obviously a one-sided, unfair regulation of speech in the public forum.”
But the court disagreed, claiming the plaintiffs had not met their burden of proof.
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