Another medical clinic buffer zone case

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