Another medical clinic buffer zone case
Our courts and towns have long struggled to comply with the
competing demands of those who seek to engage directly with medical providers
and women who seek abortion services. Since
the United States Supreme Court 1994 decision in Madsen v. Women’s Health
Center striking a 300 foot exclusion zone around a clinic that court and our
courts have struggled to protect both speech and the rights of patients to
choose for themselves whether to bear a child.
Towns and legislatures have developed buffer zones and “floating
bubbles” that have sought to permit speech while protecting patients from
harassment. In McCullen v. Coakley the Supreme Court in 2014 found – over dissent- a
Massachusetts law creating a thirty five foot buffer zone to be content
neutral. But its restrictions were not
justified under the “intermediate scrutiny” test of permissible time, place,
and manner restraints. For that the
limits must be “narrowly drawn”.
Into that challenge stepped the City of
Englewood. A clinic providing abortion
services there had been the locus of Saturday morning protests by an aggressive
group called Bread of Life which challenged the resources of local police, some
of whom “moonlighted” for the clinic.
Finally the City, cognizant of McCullen, passed an ordinance that created a no go zone -
an eight foot radius of “any entrance, exit, or driveway” of any “health care
facility”.
But Jerlyn Turco - who embraces a mission
to as a “sidewalk counselor” dissuade women from having an abortion – found the
ordinance too restrictive. Her challenge before U.S. District Judge Susan
Wigenton won a summary judgment striking
the local law. The measure, in
Wigenton’s view, was overbroad and not narrowly tailored. Overbreadth means that it sweeps both
permissible and impermissible in its scope; the related but distinct concept of
narrowly tailored means that is “burdens substantially more speech than
necessary to further the government’s interests”
The issues were narrowed because the parties agreed that the
“sidewalk counselors” speech is protected and that the forum – a public
sidewalk – is a traditional venue for free speech. The parties agreed too that the time, place,
and manner restrictions were content neutral – limiting supporters and
opponents of abortion services. Nor were
the interests at stake disputed: “protecting a woman's freedom to seek
pregnancy-related services, ensuring public safety and order, promoting the
free flow of traffic on streets and sidewalks, protecting property rights, and protecting
the medical privacy of patients....”
The challenge for the reviewing court was whether the ordinance
properly served the government’s legitimate goals. In McCullen the Supreme Court had found that
Massachusetts had “too readily foregone options” that could have served its
interests “just as well” without substantially burdening the sidewalk
counselors speech. That issue had, in
the Circuit’s view, receive too little attention from Judge Wigenton. Further the District Court “did not explain why
the eight foot buffer” was unconstitutional despite the fact that the Supreme
Court had found in Hill v. Colorado (2000) that an eight foot buffer did not
pose a “severe” burden.
The Circuit in Turco v. City of Englewood New Jersey remanded on the issue of whether the City properly
considered “less restrictive alternatives”.
For that a jury may have to weigh issues such as the impact on “sidewalk
counselors” ability to persuade patients; whether the City and its police
department had the resources necessary to prevent aggressive protestors; whether
clinic “escorts” reasonably refused to seek injunctive relief because militant
groups have been known to learn their identities and harass them at home and on
social media.
I can't offer an opinion on what a reasonable fact-finder would
conclude. But agree with the Third
Circuit panel that the principle of deference to legislative bodies calls
for careful consideration of the need to
protect the safety and privacy of patients and health care providers as well as
the rights of those who like Jerlyn Turco merely seek to preach respectfully to
patients lawfully seeking medical care.
-
George
Conk
Another medical clinic buffer zone case
Our courts and towns have long struggled to comply with the
competing demands of those who seek to engage directly with medical providers
and women who seek abortion services. Since
the United States Supreme Court 1994 decision in Madsen v. Women’s Health
Center striking a 300 foot exclusion zone around a clinic that court and our
courts have struggled to protect both speech and the rights of patients to
choose for themselves whether to bear a child.
Towns and legislatures have developed buffer zones and “floating
bubbles” that have sought to permit speech while protecting patients from
harassment. In McCullen v. Coakley the Supreme Court in 2014 found – over dissent- a
Massachusetts law creating a thirty five foot buffer zone to be content
neutral. But its restrictions were not
justified under the “intermediate scrutiny” test of permissible time, place,
and manner restraints. For that the
limits must be “narrowly drawn”.
Into that challenge stepped the City of
Englewood. A clinic providing abortion
services there had been the locus of Saturday morning protests by an aggressive
group called Bread of Life which challenged the resources of local police, some
of whom “moonlighted” for the clinic.
Finally the City, cognizant of McCullen, passed an ordinance that created a no go zone -
an eight foot radius of “any entrance, exit, or driveway” of any “health care
facility”.
But Jerlyn Turco - who embraces a mission
to as a “sidewalk counselor” dissuade women from having an abortion – found the
ordinance too restrictive. Her challenge before U.S. District Judge Susan
Wigenton won a summary judgment striking
the local law. The measure, in
Wigenton’s view, was overbroad and not narrowly tailored. Overbreadth means that it sweeps both
permissible and impermissible in its scope; the related but distinct concept of
narrowly tailored means that is “burdens substantially more speech than
necessary to further the government’s interests”
The issues were narrowed because the parties agreed that the
“sidewalk counselors” speech is protected and that the forum – a public
sidewalk – is a traditional venue for free speech. The parties agreed too that the time, place,
and manner restrictions were content neutral – limiting supporters and
opponents of abortion services. Nor were
the interests at stake disputed: “protecting a woman's freedom to seek
pregnancy-related services, ensuring public safety and order, promoting the
free flow of traffic on streets and sidewalks, protecting property rights, and protecting
the medical privacy of patients....”
The challenge for the reviewing court was whether the ordinance
properly served the government’s legitimate goals. In McCullen the Supreme Court had found that
Massachusetts had “too readily foregone options” that could have served its
interests “just as well” without substantially burdening the sidewalk
counselors speech. That issue had, in
the Circuit’s view, receive too little attention from Judge Wigenton. Further the District Court “did not explain why
the eight foot buffer” was unconstitutional despite the fact that the Supreme
Court had found in Hill v. Colorado (2000) that an eight foot buffer did not
pose a “severe” burden.
The Circuit remanded on the issue of whether the City properly
considered “less restrictive alternatives”.
For that a jury may have to weigh issues such as the impact on “sidewalk
counselors” ability to persuade patients; whether the City and its police
department had the resources necessary to prevent aggressive protestors; whether
clinic “escorts” reasonably refused to seek injunctive relief because militant
groups have been known to learn their identities and harass them at home and on
social media.
We offer no opinion on what a reasonable fact-finder would
conclude. But we agree with the Third
Circuit panel that the principle of deference to legislative bodies calls
for careful consideration of the need to
protect the safety and privacy of patients and health care providers. And though I think it takes a hell of a lot of nerve to approach strangers on the street to plead and press them to change their minds about such an intimate decision - the courts have firly established the right those who like Jerlyn Turco seek to preach respectfully to
patients lawfully seeking medical care.
-
George
Conk
