On Friday, November 6, a three-judge panel of the U.S. Court of Appeals for the Third Circuit will hear oral argument in Bruni v. City of Pittsburgh, the Pittsburgh buffer zone case.
Earlier this year, a federal judge upheld the constitutionality of a 15-foot buffer zone around healthcare facilities in Pittsburgh. The ruling was very significant—it represented the first time a statutory buffer zone was upheld by a federal court since the landmark 2014 U.S. Supreme Court ruling McCullen v. Coakley.
In McCullen v. Coakley, the U.S. Supreme Court struck down a 35-foot buffer zone established by the Massachusetts Reproductive Health Care Facilities Act, holding that, while the buffer zone statute was content-neutral, it was not narrowly enough tailored to be constitutional.
Essentially, the McCullen ruling affirms that buffer zones and other time/place/manner regulations have to be the right degree and type to balance the need to protect protesters’ speech and important state interests such as patients’ safety, and that there is no one-size-fits-all buffer zone.
In the wake of this ruling, the Alliance Defending Freedom, an Arizona-based organization that represented the clinic protesters in the Supreme Court, was eager to challenge the 15-foot buffer zone around Pittsburgh healthcare facilities.
In Bruni v. City of Pittsburgh, Nikki Bruni and four other anti-choice protesters sued the city, claiming the buffer zone prevented her and other protesters from “sidewalk counseling” patients entering the Planned Parenthood health center on Liberty Avenue. Bruni is the local campaign director of “40 Days for Life,” a campaign wherein anti-choice protesters picket clinics daily for forty days every spring and fall.
The Bruni case served as a litmus test for anti-choice activists adamant about getting as close as physically possible to patients outside of healthcare facilities, and they lost.
In ruling in the Bruni case, U.S. District Judge Cathy Bissoon held that the protesters were unlikely to be able to prove that the Pittsburgh buffer zone ordinance was unconstitutional under McCullen. She also denied the protesters’ request for a preliminary injunction and dismissed almost all of the protesters’ claims.
From Judge Bissoon’s ruling:
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.
“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. “Women who have to fight their way past anti-abortion protesters in order to see their doctor deserve, at least, the safety and dignity of a small secure space in front of the health center door.”
Bruni and co-plaintiffs filed an appeal. In response, 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 in July. The friend-of-the-court brief argues that the buffer zone in Pittsburgh successfully strikes the balance between protecting protesters’ speech and patients’ safety.
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.
Friday morning, the parties will argue their case before Circuit Judges Fuentes, Jordan, and Vanaskie of the U.S. Court of Appeals. The argument session is open to the public, and an audio recording of the argument will be available afterwards on the Third Circuit website.
If you’d like to learn more about this issue or request an interview with one of our attorneys, contact Tara Murtha at email@example.com.