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Mass. moves on abortion clinic bill: How is it different from buffer zone law?

The US Supreme Court last month struck down Massachusetts鈥 35-foot buffer zones. A new bill allows police to order individuals to withdraw if they substantially impede access to an abortion clinic.

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Dominick Reuter/Reuters
A volunteer stands near abortion protesters in front of a Planned Parenthood clinic in Boston, Massachusetts, June 28. Massachusetts is beefing up security around abortion clinics and scrambling for a legal fix after the U.S. Supreme Court voided the state's buffer zone law that kept protesters 35 feet away.

Massachusetts lawmakers are moving quickly on new legislation to protect access to abortion clinics in the wake of the US Supreme Court striking down the state鈥檚 35-foot buffer zones.

If the bill passes, only time will tell whether it can survive another free speech challenge. But advocates for abortion rights say it鈥檚 responsive to the McCullen v. Coakley decision and could even become a model for other states.

The bill allows police to order individuals to withdraw if they substantially impede access to a reproductive health-care facility. Those individuals would have to stay outside a 25-foot boundary for a maximum of eight hours.

The proposed law also prohibits intimidating, threatening, or injuring staff or others accessing the facility, as well as interfering with vehicles entering, exiting, or parking. A combination of criminal charges and civil actions, such as injunctions and monetary damages, can follow violations.

Before the state鈥檚 2007 buffer-zone law, patients trying to access reproductive health clinics faced protesters who blocked their cars, blocked their way through doors, or otherwise intimidated them, and such harassment has been on the rise since McCullen v. Coakley, says Marty Walz, president and CEO of Planned Parenthood League of Massachusetts (PPLM).

The Massachusetts Senate passed the new legislation Wednesday, and the House is expected to take it up this month.

鈥淭his bill carefully balances public safety and access considerations with free speech rights in mind,鈥 said the bill鈥檚 sponsor, state Sen. Harriette Chandler (D), in a statement.

Not so, says Philip Moran, a Salem, Mass., attorney representing Eleanor McCullen, a sidewalk counselor who attempts to engage in individual conversations with women outside clinics to get them to consider options other than abortion. The new bill 鈥渋s probably more draconian than the law that [the court] overruled,鈥 says Mr. Moran, who notes he will challenge the legislation if it passes.

The bill would give police too much discretion to say someone is impeding access, he says: 鈥淚t鈥檚 really a backdoor way to establish another buffer zone.鈥

A court could consider that point, because the First Amendment does prohibit vague regulations of expressive conduct, says Leslie Kendrick, a professor at the University of Virginia School of Law in Charlottesville.

Buffer zones, on the other hand, are not vague 鈥渁nd do not open the possibility of arbitrary or discriminatory enforcement,鈥 she says. So 鈥渋n striking that down, the court is pushing Massachusetts toward a more tailored and nuanced solution. But with nuance comes some risk of vagueness.鈥

In line with what the Supreme Court advised, 鈥渘othing in the bill is focused on speech; it鈥檚 all about the protesters鈥 behavior,鈥 Ms. Walz says. Under the proposed law, if Ms. McCullen wants to engage in conversations near the clinic that don鈥檛 intimidate patients, she鈥檒l be free to do so without penalty, Walz says.

The legislation would also give health-care providers the ability to seek civil injunctions against people who violate it 鈥 something Walz particularly likes. And it enhances the attorney general鈥檚 tools for pursuing both civil and criminal cases.

Across the country, there has been 鈥渟ome renewed energy around clinic protection since the Supreme Court decision,鈥 says Elizabeth Nash,state issues manager in the Washington, D.C., office of the Guttmacher Institute, which focuses on reproductive health and policy. The Massachusetts Senate bill is a 鈥渇irst take鈥 on a response, but 鈥渋t could possibly be a model for other states,鈥 she says.

Thirteen states and the District of Columbia have laws that prohibit certain actions aimed at abortion providers, Guttmacher reports. Among other things, 11 prohibit blocking entrances, five prohibit threatening staff, and five prohibit actions such as excessive noise or possessing a weapon during a demonstration.

New Hampshire has a new 25-foot buffer-zone law, but enforcement has been blocked by a federal judge pending a challenge in light of the McCullen decision.

Two states, Colorado and Montana, have eight-foot 鈥渂ubble zones鈥 around people near the facilities, not allowing others to approach them without consent. Such zones were upheld by the Supreme Court in 2000, and in its most recent ruling, the court also declined to strike those down.

Massachusetts already tried that approach and later created the 35-foot buffer zone when law enforcement and providers didn鈥檛 find the bubble zones to be effective, Professor Kendrick says.

A number of cities have repealed local clinic buffer-zone laws in the wake of the McCullen decision, including Portland, Maine; and Burlington, Vt. But others, such as Pittsburgh鈥檚 15-feet buffer zone, are still in place.

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