Federal Appeals Court Tweaks, But Upholds, City Law Limiting Anti-Abortion Protest

Oct 18, 2019

Abortion-rights supporters and opponents rarely share feelings on much of anything. But both sides were claiming victory — at least for the moment — after a federal appeals court tweaked a Pittsburgh ordinance that limits abortion protests outside women’s health clinics.

A three-judge panel held that the city’s 15-foot “buffer zone” around clinic entrances was constitutional – at least to the extent that it bars full-blown protests within the zone. But the court’s opinion also said the zone did not apply to “sidewalk counseling,” the practice of approaching women on their way into the clinic and urging them not to seek an abortion. The ruling could give such counselors the ability to walk right up to the front door with those seeking access to abortion services — provided they did not disrupt access or engage in larger-scale demonstrations.

“This is a really good ruling for speech, and especially for my clients who want to engage in one on one conversation with women in front of abortion clinics,” said Kevin Theriot, the senior counsel for the Alliance Defending Freedom, which represented abortion protesters. “The court made clear that they can do that.”

“This was a victory for women’s healthcare providers and for the city of Pittsburgh,” countered Sue Frietsche, senior staff attorney for the Women’s Law Project. “The anti-abortion protesters challenged the constitutionality of the ordinance, and they did not get the relief they were looking for, which was to strike down the ordinance.”

The city’s ordinance says that “no person or persons shall knowingly congregate, patrol, picket or demonstrate” within a 15-foot radius outside a clinic entrance. Writing for the court, federal judge Cheryl Ann Krause said that both the city and the Alliance Defending Freedom believed the ordinance barred sidewalk counseling. But the court disagreed: "The Ordinance prohibits four—and only four— activities within the zone: 'congregat[ing],' 'patrol[ling],' ' picket[ing],' and 'demonstrat[ing].'" ... [N]one of those terms, as commonly understood, encompasses the sidewalk counseling in which Plaintiffs engage."

Kraus wrote that if the ordinance did limit such counseling, it could run afoul of the law, but “[b]ecause we conclude that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech, we will affirm” a lower-court ruling that kept the ordinance on the books.

Nikki Bruni, one of the named plaintiffs in the case, said she was “encouraged” by the ruling. She serves as the campaign director of 40 Days for Life Pittsburgh and said the court decision could “help to end the discrimination against people who are … trying to offer help to women and men who think that they have to get abortions.”

Theriot said that Alliance Defending Freedom was “still trying to assess our options” about a future appeal. The ruling “was a positive result for our clients, but we still need more direction about what this means for free speech.”

Friday’s ruling is the latest development in a case that already dates to 2014. And following a U.S. Supreme Court ruling that voided some efforts to limit anti-abortion protests, the city scrapped another limit on anti-abortion protests: a so-called “bubble zone” that kept protesters at an 8-foot distance from patients themselves. That left only the buffer zone in place.

There may yet be more controversy ahead. The Supreme Court has another case on the docket, Price v. City of Chicago, which looks at protest zones. And Krause wrote that "the City may have a legitimate concern about access to health care facilities if it transpires that multiple one-on-one conversations impair access to the facilities." In that case, she wrote, "the City may then have occasion to revisit the terms of the Ordinance."

While there was no dissenting opinion in Friday’s ruling, Judge Thomas Hardiman – who was a top contender for a post on the U.S. Supreme Court last year – said that earlier court decisions would “constrain” future efforts to enforce the ordinance.

Hardiman wrote that the city could only address outward factors like “decibel level, the distance between persons [and] the flow of traffic.” And while sidewalk counselors said they emphasized a sympathetic approach, Hardiman said, Pittsburgh cannot target quiet conversations even if they are not in a tone of ‘kindness, love, hope, gentleness, and help.’”

“Judge Hardiman was saying, you have to be very, very careful about how you enforce this ordinance,” Theirot said. If, for example, the city treated sidewalk counselors any differently than it did the clinic escorts who accompany people into the clinic, “That would be problematic.”

“There is a question about how this decision is going to play out on the street,” Frietsche said. “If [protesters] are calm and peaceful and engaged in one-on-one conversations within that zone, if there is only one or two of them, then they can do it. But I am skeptical about whether the kind of protesters who we typically see outside of clinics can conform their conduct to these very significant restraints. “

Bruni herself acknowledged that “there’s all this gray area” about what abortion foes can and can’t do once they enter the buffer zone. “Everybody’s got to understand what role are they doing. So it does lend itself to some confusion.”