Sixth Circuit skeptical of buffer zone at Louisville abortion clinic

CINCINNATI (CN) — Kentucky anti-abortion activists brought a First Amendment challenge before the Sixth Circuit on Thursday, claiming a no-standing zone in front of a Louisville women's health clinic violates their free speech rights.

The policy bars anyone not entering or exiting the EMW Women's Surgical Center in Louisville from coming within 10 feet of the entrance. 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 Louisville City Council enacted the so-called buffer zone in May 2021 to prevent women entering the clinic from being harassed by anti-abortion protesters.

Sisters for Life, a Christian anti-abortion nonprofit group also based in Louisville, opposed the city ordinance establishing the buffer zone in a June 2021 federal lawsuit. Before the ordinance passed, the group regularly sent ministers to the clinic in an effort to dissuade women seeking abortion services. It argues that barring ministers from EMW's front entrance violates free speech and religious freedom rights, and endangeres what it called a "life-saving sidewalk ministry."

"Defendants have substantially burdened Plaintiffs’ freedom of religion, including their right to act in a manner motivated by their sincerely religious beliefs, i.e. sidewalk ministry," the amended complaint states.

U.S. District Judge Rebecca Grady Jennings did not agree with Sisters for Life and repeatedly denied the organization's requests for injunctions against the buffer zone throughout the remainder of 2021. The Donald Trump appointee finally tossed the case in February of this year, finding Sisters for Life had not demonstrated how the buffer zone irreparably injures itself or its constituent members.

The group appealed Grady Jennings' ruling three days after she handed it down. On Thursday, Sisters for Life attorney Christopher Wiest took the case before an all-male Sixth Circuit appellate panel consisting of U.S. Circuit Judges Jeffrey Sutton, Richard Griffin and John Nalbandian, two George W. Bush appointees and a Trump appointee, respectively.

Wiest argued the buffer zone was a form of legislative overkill. He stated, as he did in the 2021 complaint, that the language of the buffer zone ordinance actually bars ministers from approaching within half a city block of EMW, not just 10 feet.

"We can't conduct our ministry," he told the panel. "We can't interact with these people."

Wiest also clarified to the judges that Sister for Life did not oppose all of the buffer zone ordinance, which also prohibits anyone from "knowingly obstruct[ing], detain[ing], hinder[ing], imped[ing], or block[ing] another person’s entry to or exit from a health care facility."

"We've never challenged that [obstruction clause]; in fact we suggest that's all the city needed," the attorney said, also pointing out that the ordinance does little to bar louder protesters who may heckle those entering EMW from a distance. He brought up the hypothetical of protesters with loudspeakers rallying across the street from the clinic.

"It's not going to inhibit hate speech," Wiest said. "[A man with a loudspeaker] is reaching his audience, clearly."

Wiest was joined in presenting arguments by his co-counsel Francis Manion of the conservative Christian law firm American Center for Law and Justice. Manion told the appellate panel that this case was "indistinguishable" from the 2014 U.S. Supreme Court case McCullen v. Coakley. In McCullen, the high court unanimously decided that a Massachusetts statute which barred individuals from protesting within 35 feet of an abortion clinic was unconstitutional.

When the judges challenged Manion's assertion, bringing up the size difference between a 10 and 35-foot buffer zone, the attorney claimed the zone's numerical dimensions were irrelevant.

"It's not about the 35 feet, it's about the effect on speech. In that regard, McCullen is absolutely indistinguishable from this case," Manion said. "The government must demonstrate that [the ordinance] is narrowly tailored to only restrict as much speech as necessary to advance its interests. That's not what Louisville has done here. Louisville has excluded, categorically, everyone."

He further claimed that clinic escorts - who usher people into abortion clinics specifically to protect them from harassment - may also be violating the Louisville ordinance without fear of legal reprisals.

"I'm not conceding that there's not viewpoint discrimination here," Manion said.

The Louisville metro government's arguments were delivered by Jefferson County attorney Natalie Johnson, who rejected Manion's claims that the buffer zone dimensions were irrelevant and asked the panel to consider just how small 10 feet is on a city sidewalk.

"This is one of the smallest buffer zones this court has analyzed," Johnson said. "Sidewalk counselors, if they're standing right at that demarcation line, and there's a patient walking through that buffer zone, they're essentially 5 feet away, if not less, from that patient."

The panel was noticeably more skeptical of Johnson's arguments than it was of Wiest or Manion's. Griffin, noting the discrepancy in how close both parties claimed individuals could approach EMW's entrance, opined that the case ought to be remanded to the district court for an evidentiary hearing. Sutton also asked Johnson, citing McCullen again, why Louisville or EMW had not considered restraining orders against specific individuals, rather than a broader no-standing zone.

"Before you suppress speech, try something else. That's what McCullen says. Why didn't you try the injunctions?" Sutton asked.

Johnson countered that individual restraining orders would likely prove ineffective at curbing harassment. She pointed out that Louisville police had made arrests of anti-abortion protesters before, only for those protesters to return at a later date.

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

Sutton remained unconvinced, but after more than an hour of discussion the panel adjourned and took all the attorneys' arguments under advisement. The judges did not say when they would issue a ruling.

A representative of EMW declined to comment on how its employees feel about the case.

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