The Third Circuit found Pittsburgh’s ordinance does not target certain speech but rather prohibits demonstrating outside of health care facilities for any reason.
(CN) — The Supreme Court refused Monday to take up anti-abortion activists’ challenge to a Pittsburgh ordinance creating protest-free buffer zones around abortion clinics, but a conservative justice said the court should hear the issue when a more developed case comes before it.
In a statement announcing the petition for writ of certiorari was denied, Justice Clarence Thomas said he agreed with the court’s decision not to hear the case but also argued the buffer zones impose “serious limits on free speech.”
In her petition to the court, Nikki Bruni, a Pittsburgh leader of a religious anti-abortion campaign known as Forty Days for Life, claimed that the 15-foot buffer zone extending out from the door of Pittsburgh health care facilities unfairly prohibits “sidewalk counselors” from engaging in “quiet, one-on-one conversations with women” who visit the clinics.
Bruni was joined by four other protesters who gather outside a Pittsburgh Planned Parenthood clinic to distribute leaflets, pray, and try to persuade women not to have abortions.
Thomas said the case out of Pennsylvania “involves unclear, preliminary questions about the proper interpretation of state law,” pointing to several Supreme Court decisions with varying legal standards for reviewing First Amendment cases.
But he wrote that the court should take up the issue in a more appropriate case “to resolve the glaring tension in our precedents.”
The Third Circuit ruled in 2019 that the ordinance is constitutional and does not violate protesters’ rights.
“As plaintiffs acknowledge, the interests that the city seeks to protect – unimpeded access to pregnancy-related services, ensuring public safety, and eliminating ‘neglect’ of law enforcement needs – are legitimate,” U.S. Circuit Judge Cheryl Krause, a Barack Obama appointee, wrote in a 38-page opinion.
Krause ruled that a buffer zone does not prevent protesters from gathering within sight and earshot of the clinic or from speaking outside the zone with “willing listeners” who are entering or exiting the clinic.
In their petition to the Supreme Court, the protesters alleged that the city enacted the 2005 buffer-zone ordinance to “punish pro-life sidewalk counselors and supporters” and unfairly ban them from speaking in a location “where counselors’ expression matters most.”
“Some unborn children are saved even with the ordinance in place; there would likely be far more without it,” the protesters alleged.
The petition claims that since talk about other topics, including the weather or sports, is allowed in the buffer zone, the ordinance unfairly singles out “sidewalk counselors” and disadvantages their speech.
“While others may speak to women about mundane issues until they walk through the clinic’s door—even to speak over the counselors—the counselors must abruptly stop speaking about faith, nonprofit services, and life and death. Such disparate treatment deems the sidewalk counselors—and their message— illegitimate and untrustworthy. And it compresses the very short time counselors have to identify women approaching the clinic and engage in compassionate, personal conversations with them,” the petition states.
An attorney for the protesters, John Bursch of the Alliance Defending Freedom, said Monday that “the city shouldn’t be allowed to carve out space on public sidewalks and declare that certain topics and forms of speech are off limits there.”
“The government can’t silence speakers just because it doesn’t like what they have to say,” Bursch said. “As the Supreme Court declared as recently as 2018 in another ADF case, ‘the people lose when the government is the one deciding which ideas should prevail.’”
Bursch was referring to the Supreme Court’s 2018 decision in National Institute of Family and Life Advocates v. Becerra, which struck down a California law requiring anti-abortion pregnancy centers to disclose that they are not medical providers and to post information about state-sponsored abortion services.
In a brief responding to the protesters, attorneys for the city claimed there was no “compelling reason” for the Supreme Court to hear the case.
“Contrary to petitioners’ misguided interpretation, the Third Circuit’s interpretation of the ordinance does not regulate speech based on its purpose or function. Rather, it prohibits congregating, patrolling, picketing, or demonstrating outside of health care facilities for any purpose,” Pittsburgh’s brief states.
Associate City Solicitor Michael Kennedy did not immediately respond Monday to a request for comment.