Health Reform WK-EDGE Health clinic buffer zone designed to prevent protests doesn’t impact ‘sidewalk counseling’
Tuesday, October 29, 2019

Health clinic buffer zone designed to prevent protests doesn’t impact ‘sidewalk counseling’

By Kayla R. Bryant, J.D.

The ordinance does not violate First Amendment rights, and does not implicate the protesting group’s chosen methods.

The Third Circuit deemed that a Pittsburgh city ordinance preventing people from congregating, patrolling, picketing, or demonstrating within 15 feet of a hospital or health care facility did not apply to "sidewalk counseling." Since the application did not cover peacefully approaching those entering clinics that provide abortions to discuss alternative options, the Third Circuit found that the ordinance itself did not violate the Constitution (Bruni v. City of Pittsburgh, October 18, 2019, Krause, C.).

Ordinance. Pittsburgh implemented the buffer zone ordinance in 2005 following protests outside of health clinics that provided abortion services, resulting in bomb threats, vandalism, and blocking patients’ access to the clinics. The city decided to create the ordinance after providing a police presence outside of Planned Parenthood for several years, when it was no longer financially possible to continue the detail. When the ordinance was originally passed, it also included a "bubble zone" that prevented approaching people without their consent to pass a leaflet, display a sign, or offer education or counseling. This eight-foot bubble zone extended for 100 feet around clinics. In 2009, the Third Circuit determined that each zone was permitted under the Constitution but that the combination of the two zones was not. The city implemented the buffer zone only.

Constitutional challenge. A group of people who seek to provide what they dub "sidewalk counseling" challenged the ordinance as violating the free speech and free press protections of the First Amendment, arguing that it prevents them from offering information to women who the group believes are seeking abortion services. This sidewalk counseling does not seek to block patients from accessing the clinic or engage in violence. The group stated that standing outside of the buffer zone prevents them from having the "quiet conversations" that make up sidewalk counseling due to street noise, and makes it difficult to identify those seeking clinic services from other pedestrians.

Constitutionality. The Third Circuit found that the ordinance was not unconstitutional on its face and is a content neutral ordinance. Although both parties assumed that the ordinance prevented sidewalk counseling, the court pointed out that the ordinance’s language does not prohibit "peaceful one-on-one conversations on any topic or conducted for any purpose at a normal conversational volume or distance." The Third Circuit found that the four prohibitions in the ordinance—congregating, patrolling, picketing, and demonstration—did not apply to sidewalk counseling. Therefore, law enforcement did not need to know the content of the discussions in the buffer zone to determine whether the ordinance was violated, and the ordinance is content neutral.

The case is No. 18-1084.

Attorneys: Kenneth J. Connelly (Alliance Defending Freedom) for Nikki Bruni. Mary Lynn Tate (Pittsburgh City Law Department) for City of Pittsburgh, Pittsburgh City Council and Mayor Pittsburgh.

Cases: CaseDecisions AccessNews ContraceptionCoverageNews GeneralNews DelawareNews NewJerseyNews PennsylvaniaNews NewsFeed

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