3rd Circuit rejects Pittsburgh’s abortion-clinic access law

Tuesday, November 3, 2009

PITTSBURGH — A federal appeals court has struck down an ordinance that created two types of buffer zones around medical facilities after a Christian legal group challenged the law on behalf of a nurse who protests abortions.

In an Oct. 30 ruling, a three-judge panel of the 3rd U.S. Circuit Court of Appeals found the 2005 Pittsburgh ordinance unduly restricted protesters from passing out leaflets and participating in other forms of free speech. The law bans protesters from standing within 15 feet of entrances but also makes them stand at least 8 feet from clients in a 100-foot buffer around entrances.

The 3rd Circuit found that either zone by itself could be legal. In 2000, the U.S. Supreme Court in Hill v. Colorado upheld a Colorado state law establishing a similar 100-foot zone. The high court also has upheld decisions from courts in Florida and New York allowing bans on protesters from within several feet of medical facility entrances.

But, combined, the appeals court found the zones violate the free-speech rights of the protesters who find it difficult to hand leaflets to clinic clients.

“This case requires us to delineate, in a quite literal sense, the boundaries of the First Amendment’s protection of speech,” Chief Judge Anthony J. Scirica wrote in Brown v. City of Pittsburgh.

“This is an extremely important victory for pro-life speech. The court drew a well-needed line in sand,” David Cortman, the Alliance Defense Fund attorney who challenged the ordinance, said yesterday.

Cortman said the ruling was important because it struck down an effort to combine previously upheld restrictions and should keep other cities from trying to pass similar laws.

Sue Frietsche, of the Women's Law Project in Pittsburgh, said the city has the option of keeping either of the zones, but not both under the court ruling.

George Specter, who heads the city's law department, said yesterday that he would not comment until he had a chance to review the ruling.

Previously, city attorneys have argued the two zones were necessary to accomplish complementary functions. The 15-foot buffer zone keeps protesters from blocking entrances, while the 100-foot zone keeps protesters from following or harassing clients as they approach the clinics.

Cortman's group, based in Scottsdale, Ariz., sued to challenge the ordinance in 2006 on behalf of Mary Kathryn Brown, a nurse from Indiana Township, a suburb of Pittsburgh. Brown has spent more than 15 years attempting to persuade women not to have abortions by speaking to them and handing out literature about the procedure's physical dangers.

The appeals court rejected Brown's claims that police unfairly enforced the ordinance against her.

But it agreed with Brown's argument that the two buffer zones combined with traffic noise sometimes prevent her from talking to women using the normal, conversational tone she believes is most effective. The 100-foot zone also keeps her from handing leaflets to women before they enter the 15-foot buffer around clinic entrances, she claimed.

“The question is close, but we think Brown has the better Argument,” Scirica wrote in the 83-page opinion. “Although the Ordinance serves important government interests, we believe the layering of two types of prophylactic measures is ‘substantially broader than necessary to achieve [those] interest[s].’”

Besides striking down the ordinance, the opinion let stand some issues unresolved by a federal district court judge in Pittsburgh, including whether her rights were violated under the Pennsylvania Religious Freedom Protection Act.

Cortman said those claims could still be heard by the district court.

“That depends on whether the city decides to settle the case now that the court has struck down its ordinance, or if it continues to litigate,” he said.

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