After federal courts repeatedly upheld Pittsburgh’s 15-foot clinic buffer zone ordinance, opponents of legal abortion are still fighting to knock it down. The fight in Pittsburgh is an important one, with implications for the safety of patients and providers across the country.
The background: Last year, in McCullen v. Coakley, the Supreme Court of the United States held that Massachusetts’ 35-foot fixed buffer zone was content-neutral and advanced significant government interests, but struck it down on the grounds that it wasn’t “narrowly tailored” enough to balance the rights of patients and protesters or “sidewalk counselors.”
Protesters gather outside a Planned Parenthood in Pittsburgh.
Shortly after the ruling, the religious advocacy group that represented the plaintiffs in the Supreme Court case sought to have the courts strike down the Pittsburgh buffer zone as well. Subsequently, they filed a lawsuit against the city of Pittsburgh, representing self-described “sidewalk counselors” Nikki Bruni and four other women. The plaintiffs claimed that the buffer zone prevented them from having close, personal conversations with patients and their partners outside of Planned Parenthood’s facility on Liberty Avenue.
The plan didn’t work.
A federal judge upheld the Pittsburgh zone in March. In her opinion, U.S. District Judge Cathy Bissoon asserted that the plaintiffs’ communication was not “effectively stifled” by the 15-foot buffer zone.
From the opinion:
Prior to the enactment of the Ordinance, there were incidents of physical intimidation, violence and obstruction where the buffer zone now stands. Such incidents have rarely, if ever, occurred since the buffer zone has been implemented…
The buffer zone does not prevent a willing listener from stopping within the zone in order to accept Mrs. Bruni’s literature and listen to her message, or from exiting the zone in order to converse with her further. The Ordinance does not prevent Mrs. Bruni or anyone else from engaging in sidewalk counseling with individuals leaving the clinic, once they exit the buffer zone.
As the first time a federal judge has upheld a buffer zone since the McCullen decision, the ruling is significant and has broad implications for patients and providers across the country.
“This ruling is a great victory for the City of Pittsburgh and will help protect both the patients in need of medical care and the doctors and medical staff at Planned Parenthood,” said Sue Frietsche, senior staff attorney at the Women’s Law Project’s Western Pennsylvania office in Pittsburgh, which represented Planned Parenthood of Western Pennsylvania and its volunteer escorts in the suit.
Then the plaintiffs appealed the case.
In response, yesterday, Women’s Law Project attorneys and Thomas E. Zemaitis, a partner at the private law firm Pepper Hamilton LLP, filed a friend-of-the-court brief in the U.S. Court of Appeals for the Third Circuit on behalf of Planned Parenthood of Western Pennsylvania and Pittsburgh Pro-Choice Escorts.
The brief points out that while the McCullen ruling struck down the 35-foot zones in Massachusetts because they were not “narrowly tailored” for the relevant clinics’ history and circumstances, the Court did not hold that all statutory buffer zones or even all health center-based buffer zones were unconstitutional: content-neutral buffer zones just have to be narrowly tailored and leave open ample alternative channels of communication. In other words, they must strike the right balance between protecting patients’ safety and protesters’ speech.
The friend-of-the-court brief argues that the buffer zone in Pittsburgh successfully strikes that balance.
From the brief:
Pittsburgh has chosen a narrowly-tailored measure that resembles the kinds of alternative measures suggested in McCullen far more than the 35-foot buffer zone at issue [in McCullen]. Equally important… the 15-foot buffer zone has achieved its purpose of creating a safer, less hostile environment for patients, their companions, staff and volunteers … while “leav[ing] open ample alternative channels of communication” for plaintiffs to convey their message.
The latter part of that statement is demonstrated most clearly in the testimony of Nikki Bruni, the lead plaintiff in the case:
Q: “Is there anything about this buffer zone that would stop a willing listening to come out and speak with you after you started a discussion with them?”
Bruni: “No. They could come back and out and talk to us, if they wanted to.”
While the protesters attribute what they consider a lack of success in “sidewalk counseling” to the existence of the buffer zone, they cannot provide a before-and-after comparison of their experiences because none of the plaintiffs protested at the Planned Parenthood of Western Pennsylvania on Liberty Avenue before the buffer zone was implemented.
Q: “There is nothing about the buffer zone that stops you, once they get beyond that fifteen feet, from talking to somebody who is leaving the Planned Parenthood facility; correct?”
Bruni: “That’s correct.”
Plaintiffs also argue that the city of Pittsburgh has no right to enforce the buffer zone because there are currently few problems with protesters. Of course, that’s akin to arguing that patients prescribed medicine should go off the medicine once the symptoms disappear, when the only reason the symptoms disappeared was because they were on the right medicine. The reason there are relatively few problems with protesters in Pittsburgh recently is because of the buffer zone.
While the Bruni plaintiffs can’t speak to their experiences before the Pittsburgh buffer zone was implemented, clinic administrators and escorts can. Before buffer zones were drawn around two clinics in Pittsburgh, both facilities experienced regular and repeated disturbances involving protesters that resulted in police being summoned.
Witnesses from Planned Parenthood of Western Pennsylvania have testified to the nature of these disturbances:
“Protesters would try to talk to the clients. They would follow them up to the door, sometimes place their hands on their arm, maybe to talk to them. And what would happen is people would get angry. Sometimes there would be pushing, shoving, that type of thing, because of complaints of harassing behavior that included shoving literature in to other people’s pockets, hitting them with signs and blocking their entrance into the building.”
The U.S. Court of Appeals upheld Pittsburgh’s 15-foot buffer zone once already in a well-reasoned ruling from 2009. The question before the appeals court now is whether the McCullen ruling prohibits even very small local buffer zones around women’s health clinics with a history of obstructive and confrontational protest. If Pittsburgh’s buffer zone law is upheld, it could become a model for other jurisdictions with similar problems. If it is struck down, women’s health providers will be deprived of one of the most effective tools for ensuring that patients can access reproductive health care safely and with dignity.
For more information or to arrange an interview with a WLP attorney, contact Tara Murtha at email@example.com.
-Text: Tara Murtha, WLP Staff