Federal Judges Appear Ready to Lift Injunction Against Buffer Zones

The courthouse

Federal Judges Don’t Appear Ready to Reinstate Injunction Against Buffer Zones

By Evelyn Reilly
May 9, 2001

Three judges of the U.S. Court of Appeals in Boston appeared yesterday to be unwilling to reinstate the injunction against buffer zones around abortion clinics. It had lifted an injunction last December that had been imposed by U.S. District Court Judge Edward F. Harrington.

The judges listened yesterday to oral arguments for and against the constitutionality of the state’s “buffer zone” law. They heard an appeal by the state which claimed that Judge Harrington had abused his discretion when he granted the unusual injunction last November which blocked enforcement of the law until a trial can be held.

The sidewalk counselors who are challenging the law maintain that their constitutional rights are being violated because the law allows clinic personnel to establish a “buffer zone” around abortion clinics. Pro-life people who enter the zone to talk to women entering the clinic are subject to a fine of $5000 or 2½ years in jail. Clinic employees or their agents are exempt from such speech restrictions.

During yesterday’s oral arguments, Judge Sandra Lynch opined there was no evidence the clinic staff engaged in speech and they were “performing a legitimate police power function.” Judge Bruce M. Selya said there was no proof the clinic employees engaged in speech and that it was “rank speculation.” Judge Frank Coffin said the plaintiffs were protesting a “small tail wagging a big dog.”

All sides appear to be in agreement that a trial will be required to settle the dispute. The judges at yesterday’s hearing will only decide whether or not an injunction against the law will be in effect until the trial.

The lawyers for the two sides were Assistant Attorney General Patricia Correia for Attorney General Reilly’s office, and Attorney Mark Rienzi from the Pro-Life Legal Defense Fund representing three pro-life sidewalk counselors.

Injunction Was Immediate

Judge Harrington issued his preliminary injunction only one week after the law went into effect on November 10, 2000. He said the law is a clear violation of the First and Fourteenth Amendment rights of those pro-life people who wish to peacefully offer assistance or alternatives to abortion to women entering the clinic.

The judge pointed out that it is “exceedingly clear” that the statute is aimed only at pro-life speech. He wrote, “It is also only speech, and not acts of physical violence, that is regulated by a statute whose purpose is ostensibly public safety.”

In his 15-page order, Harrington wrote, “This constitutes patent discrimination, and this statute, therefore, cannot be considered a content-neutral regulation of speech. The Massachusetts statute clearly accords preferential treatment to expression of one particular viewpoint on the abortion issue, that of pro-choice.”

Judge Harrington wrote, “The intense national debate on abortion is based on a profound and serious philosophical and biological dispute between so-called pro-life advocates who are morally convinced that an unborn child is a living human person whose right to life should be secured by the protections of the United States Constitution and so-called pro-choice advocates who are as convinced that the unborn child is not such a living human person and that the unborn child’s mother has the choice to terminate the life of her unborn child, even, in some instances, of a child partially born.”

The name of the case is McGuire v. Reilly.