click to enlarge Matthew Thorsen

Sharon Iszak (left) and Agnes Clift protesting outside Planned Parenthood

Amy Cochran, 61, is a retired Franklin County farmer and science teacher who lives in a church rectory with her chihuahua. Agnes Clift of South Burlington, 59, drives people with visual impairments to appointments and favors bright-colored sparkly shirts.

Dealing with these women — and a handful of other pro-life activists — has been a top priority for Burlington officials this summer. Cochran and Clift are among the regulars who stand outside the Planned Parenthood clinic on St. Paul Street, praying the rosary and hoping to dissuade women from getting abortions.

On June 26, the Supreme Court unanimously struck down Massachusetts' buffer zone, which kept protesters and so-called "sidewalk counselors" 35 feet from abortion clinics. The justices determined that the law ran afoul of the First Amendment — a judgment that effectively nullified the 35-foot buffer zone Burlington had put in place two years before.

Since the ruling, Burlington's "sidewalk counselors" have moved closer to the clinic. Previously relegated to the opposite side of the street, they now stand on the same side as the entrance, usually on the grassy strip between the street and the sidewalk.

According to Planned Parenthood, their presence intimidates patients and hampers access to health services. "I think it's clear that when you have a number of patients or volunteers saying they feel intimidated or harassed, it's a problem, and it's a bigger problem than we can solve at the facility," said Jill Krowinski, vice president of education and Vermont community affairs for Planned Parenthood of Northern New England.

The Burlington City Council agrees. After the ruling, all 14 members swiftly signed a resolution stating, "We firmly believe that women have the right to access reproductive health services without having to encounter harassment, intimidation, judgment or obstruction. We are committed to urgently investigating and supporting legally defensible alternatives that ensure women's safety and access to healthcare services."

More than two months have passed since the Supreme Court ruling. Massachusetts passed a new law at the end of July that allows police to order protesters who misbehave to stay at least 25 feet away from the clinic for eight hours.

But Burlington officials are holding out for a better alternative.

"It's tricky because no one really knows what's going to hold up or not in terms of the next court challenge," explained Selene Colburn, a Progressive city councilor who's been particularly vocal about the importance of replacing the buffer zone. "Clearly we have to be creative in the post-SCOTUS reality."

One thing councilors say they are certain about: The city will end up in court. "I think that whatever we choose to do will be tested," predicted Karen Paul, a Democrat who sits on the ordinance committee.

Burlington is still wrapping up a legal battle that started before the Supreme Court decision — and has been vastly altered because of it. Back in September 2012, Clift, Cochran and four other women sued the city in federal court over the constitutionality of its buffer zone. Connecticut lawyer Michael DePrimo represented them. He also handled the Massachusetts lawsuit before it reached the Supremes.

DePrimo and the plaintiffs lost the Burlington case, but it was under appeal at the time of the Supreme Court ruling. At issue now is not whether the zone was constitutional — the highest court answered that — but who's on the hook for the legal fees.

It's Burlington, according to DePrimo. "The fact of the matter is the plaintiffs are entitled to attorney fees," he said, reached by phone last Thursday. "The city simply can't win."

The city council discussed the litigation in a closed session on Monday. Last Friday, Mayor Miro Weinberger, responding to an interview request by email, wrote, "We are hopeful that no city funds will be required beyond the insurance deductible." That deductible is $20,000 and has covered Burlington's legal fees, according to City Attorney Eileen Blackwood. DePrimo declined to disclose the amount of his legal bill but noted it continues to rise.

In the meantime, Planned Parenthood has come up with a possible alternative to the buffer zone. Modeled on a Colorado law, it would create an eight-foot "bubble" around patients within a 100-foot radius of the clinic. Unless the patient gave consent, people couldn't approach her within that bubble.

Colburn said she favors this approach, though she acknowledged, "it will probably be the most controversial."

That's because the Supreme Court might not allow it. "There's a lot of discussion right now among lawyers and legal scholars about whether or not this survives the Supreme Court case," Blackwood told the ordinance committee at its last meeting, on August 26. "We aren't here today with any sort of decision for you about whether this is constitutional."

The Supreme Court upheld Colorado's law in 2000, but since then, four justices have left. The majority opinion in the Massachusetts case didn't weigh in one way or the other on the bubble approach; in a concurring opinion, justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas clearly labeled it unconstitutional. Playing it safe, the City of Madison, Wis. nixed its bubble ordinance shortly thereafter.

Blackwood also cautioned that bubble zones can be tricky to enforce. It's not always easy for police to determine who approached whom and whether there was consent. For that reason, Massachusetts ditched the bubble approach in 2007 in favor of the buffer zone. Burlington Police Chief Michael Schirling declined to comment because he hasn't seen any proposal yet.

The Supreme Court struck down Massachusetts' buffer zone because, in its opinion, the state failed to prove that less restrictive approaches — like the bubble — hadn't worked. Blackwood told the committee to keep the following question in mind: "What is the wrong you're trying to right based on the actual conduct that's happening?" In other words, the new ordinance needs to address what's happening at Burlington's Planned Parenthood — councilors can't simply adopt another state's law on theoretical grounds. And if what they craft encroaches on free speech rights, they need on-the-ground evidence showing why it's necessary.

The pro-lifers know this. Sitting on a bench on St. Paul Street, taking a brief break but still holding her sign — a laminated photograph of her niece's newborn — Clift said, "It was very obvious from the questions the justices were asking, there has to be a problem that's being solved." A four-time candidate for the state legislature, Clift estimates she's been standing outside Planned Parenthood for roughly 14 years. Watching as a young woman walked by, passing a cigarette back and forth with her male companion, Clift observed, "She just came out of Planned Parenthood. She seems to be a little upset."

So what exactly is the problem on St. Paul Street? Depends whom you ask.

City Councilor Chip Mason, chairman of the ordinance committee, described the testimony they've received from Planned Parenthood and from protesters as "diametrically opposed." He said the committee plans to hold a public hearing on the topic later this month to get a better grasp on the situation.

It usually goes something like this: On August 27, Clift and 57-year-old Sharon Iszak stood on the greenbelt, reciting the rosary in unison. Neither addressed the one woman who entered the clinic during the half hour they stood there.

On the morning of September 3, Clift and a man were holding vigil, standing on the greenbelt — roughly 20 feet from the front door. Across the street, a black banner was draped over Clift's Honda. It showed an embryo with the accompanying headline, "Yes, it's a baby." Bridget Mount, who's also a plaintiff, joined them several minutes later.

Against the clinic's grey brick wall, a pink-vested Planned Parenthood "greeter" stood facing the women and opening the door for arriving patients. Planned Parenthood started using such volunteers in response to pro-life protesters, and Krowinski said she hopes to recruit more people to fill this role.

Again, no one ventured from the greenbelt to address the four women who entered Planned Parenthood.

Clift, Cochran and Iszak maintain that they pray quietly, and that when they address patients, they do so gently. Both Clift and Iszak described themselves as shy and say they prefer to let others do the "counseling." Cochran, who said she had two abortions before becoming pro-life, said she's careful not to come off as threatening. "Most of them come out crying, or with a look of pain ... I'll talk to them and ask them if they want a pamphlet."

The police have been summoned to Planned Parenthood once since Burlington's buffer zone came down. But it was protester Mount, not the clinic, who called them. According to the police report, Mount told the officer that a woman had threatened to punch her in the face and showed him video footage on her phone as evidence. Based on the video, the officer noted, "I observed a woman walking away on the opposite side of the street. [Mount] states 'God bless you' to the woman a couple of times. The woman yells at her to 'shut the fuck up.'" No charges were filed, and Mount declined to comment.

Planned Parenthood has also been collecting evidence attempting to show that, without the protection of a buffer, patients have been intimidated and harassed. According to its medical director, Donna Burkett, some patients come in with elevated blood pressure and other physical symptoms brought on by the stress. Krowinski provided Seven Days with three recent observations recorded by employees or volunteers who classified the incidents as harassment or intimidation.

The first episode was the one in which Mount called the police. On July 16, according to a greeter's written account, "A patient's support person (SP) and protesters get into a yelling match, SP upset about being videotaped and both threaten to call lawyers. Protester calls police, protester asks SP to stop, continues to follow SP up St. Paul Street. Later on, protesters take video of me (greeter) and spoke twice about what Planned Parenthood does inside."

On July 19, "There were up to 10 protesters (including a baby) picketing and praying loudly. They were parked right outside the clinic with signs on their cars."

On July 30, "There were four protesters today chatting with each other and praying out loud. They had signs they held and large signs on their cars. One woman entering the health center complained about the protesters, saying that they are so loud, they make people not want to come here."

Paige Feeser, a volunteer coordinator for Planned Parenthood who also serves as a greeter, described a recent occasion when, "I had one protester come right up to my face and hand me a flyer showing how Susan B. Anthony would not approve of the decision of women getting abortions."

"I would definitely say the Susan B. Anthony [incident] was one of the hardest things I had to witness," since the removal of the buffer zone, Feeser said. "Just because it was incorrect misinformation being handed out to patients in order to try to change their desire or intent to walk into the health center."

That's nothing compared to what took place in the 1970s — when someone threw a Molotov cocktail near the entrance of the Vermont Women's Health Center, a Burlington reproductive health clinic that later merged with Planned Parenthood — or in the 1990s, when a national group of protesters chained themselves together in the clinic's hall.

Colburn, however, argues that history is still relevant. "Enough bad things have happened that we do not need to wait for something bad to happen in our community ... The reason people have those concerns is people get killed going to abortion clinics."

DePrimo said Planned Parenthood lacks the compelling evidence of harassment that it needs "to justify a buffer-type law."

The city attorney is looking at the city's definition of harassment; Blackwood suggested that tweaking it might give the city more control over what takes place on St. Paul Street. In DePrimo's view, that's risky territory. "That's where it gets really squirrelly ... The First Amendment goes out the window if someone can subjectively say, 'They are harassing me simply because they are continuing to talk to me.'"

"The Burlington City Council has really got its work cut out for it if they are going to try to appease Planned Parenthood and still remain within constitutional bounds," DePrimo said. "At this point, I'm simply watching ... If they overstep their bounds? Yes, I'd be inclined to sue them again."

The mayor, in his written response, sounded more optimistic. "I am confident we can take action soon without exposing the City to undue legal risk. I believe we will be in a position to make decisions about our alternatives within a matter of weeks."

Colburn hopes the council won't lose its resolve. "Government is here for the public good, and sometimes that involves taking risks," she said. "I have concerns broadly ... about making decisions that are totally guided by fear of lawsuit."

The original print version of this article was headlined "Drawing the Line: Burlington Seeks Alternative to Clinic Buffer Zone "