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A “bubble law” in Pittsburgh that would create zones in front of abortion businesses to prevent pro-life protesters from speaking has been struck down by the 3rd U.S. Circuit Court of Appeals, which said the measure imposed an “onerous” burden on the First Amendment.

The decision is an important precedent in the ongoing battle between abortion clinics and activists who wish to provide a message of life to women considering or intending to obtain abortions.

“We agree with the court’s conclusion that the ordinance violated the free speech rights of pro-life advocates by zoning them out of the areas where they have a First Amendment right to speak,” said David Cortman, senior legal counsel for the Alliance Defense Fund, which argued the case.

“This decision is significant because the court drew a well-needed line in the sand that cities may not cross; such overbroad and ‘unprecedented’ restrictions on pro-life speech around abortion clinics violate the Constitution,” he said.

The cause was launched in 2006 on behalf of Mary Kathryn Brown, a pro-life nurse who counsels women who have had or who are considering an abortion. The ADF said she never trespassed or blocked individuals from entering or leaving abortion businesses.

The year before, the city enacted an ordinance that restricted access to public property around abortion businesses, including a 15-foot zone around the door and an additional 100-foot zone around the clinic.

The appellate court issued a permanent injunction against the ordinance and returned the case to the district court to give the city an opportunity to correct its constitutional defects.

“Under the ordinance, individuals were prohibited from speaking – or even locating – in the sidewalk area within 15 feet from any entrance to abortion facilities. Moreover, within 100 feet of clinics, individuals were required to first obtain consent to approach a person closer than eight feet away before being granted permission to distribute leaflets or handbills or to engage in oral protest, education, or counseling,” the ADF said.

The 3rd Circuit said the combination of free speech restrictions was “unduly – and unconstitutionally – onerous.”

“We conclude that the ordinance burdens substantially more speech than necessary and is thus insufficiently tailored,” the opinion said. “Because we find that the ordinance’s combination of zones is not narrowly tailored, we hold on the merits that the ordinance is facially invalid.”

The opinion explained Pittsburgh had gone well beyond a similar “bubble law” in the state of Colorado that has been upheld by the Supreme Court.

The double layer of “bubble zone” was the law’s failing defect, the court said.

“Although the ordinance serves important
government interests, we believe the layering of two types of
prophylactic measures is ‘substantially broader than necessary
to achieve [those] interest[s],’” the court said.

“The … court allowed the prophylactic bubble zone established by the
Colorado statute, even though its restrictions swept up more
than the specific incidents of dogging and harassment that were
the government’s professed target,” the court said. “But
the ordinance’s combination of two prophylactic zones here
represents a restrictive step beyond the regulation approved.

“We [conclude] that the combination of the
bubble and buffer zones is invalid under the First Amendment,” the court said.

The appellate court also scolded the judge who issued the original approval of the speech restrictions, noting he had visited the location of the abortion business without any members of the legal team representing the plaintiff and even without a court reporter to document the evidence.

“Without presence of counsel there is no way to be certain … that the court does not view the wrong premises or objects,” the appeals court decision said. In addition, “because there is no record of the view, the litigants may effectively be denied any means of challenge on appeal.”


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