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Sixth Circuit sides with anti-abortion group in fight over Kentucky abortion clinic’s ‘buffer zones’

The Sixth Circuit ruled that the city of Louisville cannot enforce a 10 foot anti-harassment zone around the clinic's entrance.

(CN) — The Sixth Circuit dealt a blow to Kentucky's last remaining abortion clinic Wednesday evening, ruling that a "buffer zone" around the clinic's entrance violates the First Amendment.

The buffer zone, established by a Louisville metro ordinance in May 2021, barred anyone not entering or exiting the EMW Women's Surgical Center from coming within 10 feet of the entrance. It was meant to shield women seeking abortion services at EMW, as well as EMW's own employees, from harassment.

EMW is the only women's clinic currently offering abortion services in Kentucky, amid ongoing legal disputes over whether the procedure is still legal in the state after the U.S. Supreme Court overturned Roe v. Wade in June.

The Christian anti-abortion group Sisters for Life challenged the buffer zone in federal court a month after the Louisville ordinance took effect. The group's members regularly visited EMW prior to May 2021 to conduct a "sidewalk ministry" discouraging women from getting abortions, and in its June 2021 lawsuit, Sisters for Life claimed that barring members from the clinic entrance was a violation of free speech and religious freedom rights.

U.S. District Judge Rebecca Grady Jennings, a Donald Trump appointee, disagreed. She repeatedly denied the group's requests for injunctions against the buffer zone throughout 2021, and tossed the case this past February. Sisters for Life appealed Grady Jennings' final ruling three days after she handed it down, and on Wednesday night an all-male appellate panel reversed it.

Despite EMW being the only functioning abortion clinic in Kentucky, the panel's opinion is worded such that it would apply to all hypothetical clinics that may one day operate in Louisville-Jefferson County.

"Sisters for Life, several individuals, and another pro-life organization wish to offer leaflets and compassionate, if sometimes unwelcome, speech to women entering abortion clinics in Louisville, Kentucky," Sixth Circuit Chief Judge Jeffrey Sutton, a George W. Bush appointee and Federalist Society contributor, wrote in the 12-page opinion. "But Louisville-Jefferson County limited their speaking and pamphleteering in buffer zones near the entrance of each clinic. Because these limits likely violate the First Amendment... we preliminarily enjoin them."

Even before issuing the ruling, Sutton and the two other conservative judges who composed the appellate panel — George W. Bush appointee Richard Allen Griffin and Donald Trump appointee John Nalbandian — had expressed antipathy toward the Louisville ordinance. During oral arguments on the case held earlier this month, Sutton suggested that injunctions tailored against specific troublemaking individuals would be more apt than a blanket anti-harassment zone. He cited the 2014 U.S. Supreme Court case McCullen v. Coakley, in which the high court unanimously decided that it was unconstitutional for the state of Massachusetts to prevent individuals from protesting within 35 feet of an abortion clinic.

Louisville-Jefferson County attorney Natalie Johnson argued at the time that police had already made arrests of individual protesters, and that this had proven ineffective at curbing harassment.

"[The arrests] just weren't very successful... the reason that doesn't work [is] these crimes, these are misdemeanors," Johnson argued.

The panel's Wednesday ruling repeated Sutton's advice regardless.

"What was problematic for Massachusetts in McCullen — its failure to focus regulation on the problem through targeted injunctions — is problematic for Louisville here," the ruling states. "It may be true that violations of the County’s no obstruction law would lead only to misdemeanor citations. But if the concern is that law enforcement’s remedial hand is weak, the County holds the key."

The ruling goes on to recommend that Louisville issue heavier civil and criminal penalties to those that obstruct EMW's entrance, or increase police patrols around clinic to decrease the likelihood of harassment. Obliging Sisters for Life's assertion that its members are strictly non-confrontational when conducting their anti-abortion sermons, the ruling goes on to accuse Louisville of conflating the group with more violent protesters.

"Keep in mind... that the goal of the plaintiffs is not to harass or protest, whether loudly or violently. The point of their speech is to offer a compassionate ear," the ruling states. "To this day, it remains unclear why the County has sought to suppress their speech along with those types of protests that are far more likely to hinder access to a clinic and are sometimes designed to do just that."

The case now returns to the Western District of Kentucky with instructions for the court to prevent Louisville from enforcing the buffer zone ordinance. Neither Sisters for Life, Johnson nor EMW immediately responded to requests for comment.

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