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Pittsburgh's "Buffer Zone" Ordinance Does Not Prevent Sidewalk Counseling at Abortion Clinics

Planned Parenthood Sign on Brick Wall
By Joseph Fawbush, Esq. on October 22, 2019 12:54 PM

Outside of two Planned Parenthood clinics in Pittsburgh, pro-life advocates have long engaged in protests, demonstrations, and other activity designed to reduce the number of abortions performed. Routine escalations in the 90s led to 24-hour police surveillance, which was eventually eliminated due to budget constraints. After police became unable to monitor the two clinics to prevent violence, a city ordinance prohibited anyone to “congregate, patrol, picket or demonstrate" within 15 feet of the entrance to a medical facility.

Anti-abortion advocates argued that Pittsburgh's ordinance violates their First Amendment rights. The city argued that the ordinance prevents “sidewalk counseling," a relatively recent method of discouraging abortion through one-on-one talks and brochures handed out individually. Neither were correct.

At least according to the Third Circuit Court of Appeals, which held on October 18 that, contrary to the interpretation of the ordinance by both parties, nothing in the law prohibited sidewalk counseling. Because the ordinance could be interpreted narrowly, it offered limited restrictions on the anti-abortion activists' free speech and did not violate their First Amendment rights.

Try, and Try Again

This was not the first time Pittsburgh's ordinance was in federal circuit court for challenges to its constitutionality. In 2009, the Third Circuit held that the buffer zone ordinance was a content neutral time, manner and place restriction. However, in that case, they also held that the combination of the buffer zone and an additional eight-foot “bubble zone" around individuals was not sufficiently tailored to the government's interest. The city therefore only enforced the buffer zone ordinance.

Five years after that ruling, the Supreme Court held that a Massachusetts law that prevented anyone from standing within a 35-foot radius of a clinic that performed abortions was facially invalid. After the Supreme Court's ruling, anti-abortion activists challenged the Pittsburgh ordinance once again.

The district court held that the ordinance both prohibited sidewalk counseling and was content neutral, distinguishing the more limited Pittsburgh ordinance from the statewide Massachusetts law struck down by the Supreme Court. It therefore dismissed the claims in summary judgment. In affirming, the Third Circuit panel once again held that the ordinance was a content-neutral time, manner and place restriction that was subject to intermediate scrutiny. It did so, however, by construing the ordinance narrowly, finding that nothing in the ordinance prohibited sidewalk counseling. This also helped to distinguish Pittsburgh's ordinance from the more expansive Massachusetts law.

A Pyrrhic Victory for the City?

The decision, despite affirming the district court's ruling in favor of the city, was hailed by the anti-abortion activists as a win, since sidewalk counseling is now permitted. City officials had no comment.

It is one of several abortion cases making its way through federal courts. The Supreme Court is yet to hear oral arguments in June Medical Services LLC v. Gee

Related Resources

Sixth Circuit Affirms Injunction Blocking Ohio Abortion Ban (FindLaw's U.S. Sixth Circuit)

SCOTUS Tackling Gun Rights, Abortion, and More in 2019-2020 Term (FindLaw's U.S. Supreme Court)

Indiana Abortion Law Blocked, Except for Burial of Fetal Remains (FindLaw's U.S. Supreme Court)

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