On October 30, 2009, the U.S. Court of Appeals for the Third Circuit issued an 83-page ruling (PDF) in Brown v. City of Pittsburgh, in which an anti-abortion protester challenged the constitutionality of Pittsburgh’s Medical Safety Zone Ordinance. Chief Judge Scirica, writing for a three-judge panel that included Judges Ambro and Smith, upheld the constitutionality of both operative provisions of the ordinance—a 15-foot fixed no-protest zone around clinic entrances and a floating 8-foot personal bubble zone of protection around each person approaching the clinic.
The court determined that both zones are content-neutral and consistent with the First Amendment speech and free exercise clauses, the Equal Protection Clause, and the Pennsylvania Religious Freedom Protection Act.
However, while noting that “the question is close” and that the Supreme Court’s clinic buffer zone jurisprudence did not dispose of the issue, the appeals court concluded that the combination of the two zones was, “on this record,” insufficiently narrowly tailored, and that the City could therefore keep one but not both kinds of protective zones. (The record before the appeals court, developed at a preliminary stage of litigation, did not include any testimony of any clinic escorts, staff or patients.) The appeals court remanded the case to the trial judge to permit the City to determine which of the two types of buffer zones it wished to keep.
“Far from striking down the buffer zone ordinance, the appeals court gave a green light to a modified version of it which can remain in place,” said Susan Frietsche, Senior Staff Attorney for the Women’s Law Project. “We’re pleased that the appeals court recognized that the government has a significant interest in protecting women seeking reproductive health care. But it is an outrage that in the United States such special protective zones are even necessary.”
In the same decision, the appeals court also vacated and remanded the trial judge’s preliminary ruling that the buffer zone ordinance did not unconstitutionally infringe on the First Amendment based on the layout, location, and noise level surrounding particular clinics, because this ruling may have been influenced by the trial judge’s unannounced site visits to the protected clinics, a practice of which the appellate panel sharply disapproved. The panel also affirmed the trial court’s preliminary ruling rejecting Brown’s claim that the ordinance had been selectively enforced against her because of her anti-abortion viewpoint, and sustained the trial court’s dismissal of portions of Brown’s complaint.