PHILADELPHIA (CN) - An attorney for Pittsburgh squirmed before the Third Circuit on Friday while struggling to explain how the city's health care facility buffer zones do not tacitly target the anti-abortion activists.
"Let's take a hypothetical," Judge Kent Jordan told city attorney Matthew McHale. '"I'm walking down the street with Judge [Julio] Fuentes and we're - pick your topic, your non-abortion topic - we're both raving Pittsburgh Steelers fans, and he's got his fantasy football team with Steelers players and I'm trying to advise him while we walk along the street, and we walk into the zone. Is it your position that my counseling him on fantasy football discussion would violate this ordinance?"
"No, if you talk about football, that's not prohibited," McHale said.
"OK, if that's the case, haven't you privileged football over ... abortion discussion?"
Though the Supreme Court voted 6-3 to uphold an 8-foot buffer zone around entrances to abortion clinics in the 2000 case Hill v. Colorado, the court unanimously revived a challenge last year in McCullen v. Coakley to a 35-foot zone in Massachusetts.
Pittsburgh argues that its law, which says no one "shall knowingly congregate, patrol, picket or demonstrate" within designated buffer zones, does not solely apply to anti-abortion activists.
A federal judge upheld the zones this past March, but McHale conceded at the hearing today that none of the hypotheticals that Judge Jordan provided, including if he were to hand out commercial leaflets or a "heated political discussion," would violate the ordinance.
"So if somebody who's passing out $10-off pizza is demonstrating and picketing and subject to the ordinance?" Judge Jordan asked.
"That's a question that hasn't - that doesn't really come up."
"Well you reveal a lot with that comment, because, take the mask off and acknowledge that what we're really talking about is anti-abortion speech."
The four plaintiffs challenging the buffer zone engage in a biannual 40 Days of Life campaign that their brief describes as gathering to "peacefully pray outside of abortion clinics from 7am to 7pm for forty days, alongside and in support of ... sidewalk counseling."
Their attorney, Mark Bowman with Alliance Defending Freedom, argued that whether the buffer zone actually prevented the counseling was an issue of fact to be determined in trial.
Bowman said McCullen requires Pittsburgh to show that it pursued every opportunity possible, including prosecuting harassers outside of health care centers, before instituting the zone.
"What the Supreme Court said was, you actually have to look at that stuff and actually show something instead of burdening innocent people and their speech on the sidewalk," Bowman said.