3rd Circuit hands down precedent-setting abortion clinic ‘buffer zone’ decision

Alliance Defense Fund 

November 02, 2009

The U.S. Court of Appeals for the 3rd Circuit struck down an ordinance Friday that Alliance Defense Fund attorneys challenged as unconstitutional for prohibiting speech in specified zones outside Pittsburgh abortion clinics. ADF attorneys represent a pro-life nurse who challenged the ordinance, which prohibited her from counseling and speaking with women near the clinics.

“Pro-life advocates shouldn’t be prohibited from expressing their beliefs,” said ADF Senior Legal Counsel David Cortman. “We agree with the court’s conclusion that the ordinance violated the free speech rights of pro-life advocates by zoning them out of areas where they have a First Amendment right to speak. This decision is significant because the court drew a well-needed line in the sand that cities may not cross; such overbroad and ‘unprecedented’ restrictions on pro-life speech around abortion clinics violate the constitution.”

The ordinance unconstitutionally restricted the speech of Mary Kathryn Brown, a pro-life nurse who counsels women who have had or who are considering an abortion. Brown has never trespassed or blocked individuals from entering or leaving abortion facilities. In 2005, the city of Pittsburgh enacted a new ordinance which restricted access to the public areas surrounding abortion clinics. ADF attorneys filed suit over the ordinance on Brown’s behalf in March 2006.

In March 2008, ADF attorneys appealed her case to the 3rd Circuit and argued in January 2009 for the court to grant a preliminary injunction to halt the ordinance and keep the city from prohibiting her free speech while the case moved forward. The 3rd Circuit went one step further and issued a permanent injunction against the ordinance because it found the law to be unconstitutional.

Under the ordinance, individuals were prohibited from speaking--or even locating--in the sidewalk area within 15 feet from any entrance to abortion facilities. Moreover, within 100 feet of clinics, individuals were required to first obtain consent to approach a person closer than eight feet away before being granted permission to distribute leaflets or handbills or to engage in oral protest, education, or counseling.

In its opinion, the 3rd Circuit noted that the ordinance put a burden on free speech that was “unprecedented” and “unduly--and unconstitutionally--onerous.”