The 6th U.S. Circuit Court of Appeals handed a group of pro-life sidewalk counselors in Kentucky a win recently when it issued a preliminary injunction preventing the County of Louisville-Jefferson from enforcing a local law designed to shield abortion sellers from pro-life activity in their immediate vicinity.
Several individuals and two pro-life organizations – Kentucky Right to Life and Sisters for Life – engage in compassionate sidewalk counseling in front of the EMW Women’s Surgical Center in Louisville, Kentucky, an abortion facility. They hand out pamphlets and talk to pregnant women entering the facility for abortions, hoping to convince them to choose life for their babies and offering help and life-giving alternatives.
The county, however, passed what is known as a “buffer zone” ordinance, prohibiting not just obstruction of medical facilities’ entrances, but any speech with persons entering those medical facilities. The sidewalk counselors did not challenge the part of the ordinance prohibiting physical obstruction of entrances to medical facilities, just the speech prohibitions.
Although a federal district court judge refused to help the sidewalk counselors threatened by the ordinance, on appeal the 6th Circuit saw the case differently. It invoked the 2014 U.S. Supreme Court decision in McCullen v. Coakley striking down a similar Massachusetts law for infringing First Amendment rights.
The 6th Circuit decision noted that one of the sidewalk counselors testified that prior to the ordinance’s passage, she routinely persuaded three to six women per month to forego having an abortion, while another said she successfully convinced approximately 60 women per year to choose life for their babies, but none afterwards.
That, said the appeals court, plainly shows the negative impact the ordinance was having on speech.
According to the unanimous three-judge decision written by Chief Judge Jeffery Sutton, the ordinance likely violated the First Amendment because it was unequally enforced against pro-life speech only, and was overbroad rather than narrowly tailored to address a specific issue.
“[T]he County disclaims any plans to enforce the ordinance against escorts of women into the Clinic, even though they have discussed abortion-related topics in the buffer zone in non-neutral ways,” Sutton wrote. “If that’s how the ordinance works—exempting pro-choice speakers while suppressing pro-life speakers—strict scrutiny would apply,” he added.
“Strict scrutiny” is legal shorthand for a test that the ordinance would have little chance of surviving.
But Sutton left a factual examination of the ordinance’s “selective” enforcement for the lower court in a future proceeding. He primarily faulted the ordinance for being overbroad rather than narrowly tailored, as the First Amendment requires.
“Because the County may not ‘burden substantially more speech than is necessary’ to further the County’s order and access interests . . . and because the County has not made any showing that all medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of narrow tailoring. ‘For a problem shown to arise only . . . at one clinic,’ authorizing buffer zones ‘at every’ Louisville-Jefferson facility ‘is hardly a narrowly tailored solution.’”
The decision also criticized the county’s lack of serious effort to find less intrusive tools to accomplish its goal of ensuring access to facility entrances, such as using the abortion facility’s video surveillance recordings to identify and prosecute those obstructing or impeding access to entrances, rather than creating buffer zones that implicate and prohibit protected speech.
“More than some difficulty, however, is required to uphold regulations that suppress speech,” Judge Sutton emphasized. “A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency,” he added, quoting a line from McCullen.
So, what happens next?
Francis Manion, Senior Counsel with the American Center for Law and Justice (ACLJ), represents the sidewalk counselors. He explained in a press release:
“While our clients are now protected by a preliminary injunction, a decision on a preliminary injunction does not end a lawsuit,” Manion said. “Once the Sixth Circuit sends the case back to the district court, the County will have to decide whether to abandon its ordinance and go back to the drawing board or dig in its heels and try to defend its ordinance to the bitter end.
“Either way, the ACLJ is prepared to do what we’ve been doing since day one: defending the free speech rights of sidewalk counselors.”
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