A federal appeals court on Wednesday revived a challenge to a Pittsburgh ordinance that established a 15-foot buffer zone around abortion clinics in that city, to make it easier for patients to avoid protesters.
By a 3-0 vote, the 3rd U.S. Circuit Court of Appeals said anti-abortion campaigners seeking to provide "sidewalk counseling" to women entering a Planned Parenthood facility in downtown Pittsburgh could pursue claims that the 2005 ordinance violates their free speech rights under the U.S. Constitution.
The Philadelphia-based appeals court had rejected a similar challenge in 2009, but said a different conclusion was now required after the U.S. Supreme Court in 2014 unanimously struck down a Massachusetts law setting a 35-foot buffer zone.
"The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment," Circuit Judge Kent Jordan wrote. "The city cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the city's legitimate, substantial, and content-neutral interests."
Pittsburgh's ordinance was challenged by four women and one man represented by Alliance Defending Freedom, a conservative advocacy group. It was defended by lawyers representing the city and Mayor Bill Peduto.
"The appeals court got it right," Matt Bowman, a lawyer for the plaintiffs, said in an interview. "Free speech deserve the highest level of protection on the public sidewalk. We're happy that we will get our day in court."
Matthew McHale, a lawyer for Pittsburgh, said in a statement: "There will be other opportunities for the city to prove the ordinance should be upheld as constitutional."
The appeals court did not decide the merits of the plaintiffs' claims.
In the Massachusetts case, McCullen v Coakley, Chief Justice John Roberts wrote that the state had less burdensome alternatives to its 35-foot buffer zone that appeared "capable" of serving its needs while preserving free speech rights.
But in March 2015, U.S. District Judge Cathy Bissoon in Pittsburgh refused to issue an injunction blocking enforcement of that city's ordinance. She said that while the protesters' message was restricted, it was not "effectively stifled."
Jordan, however, said Pittsburgh did not show it considered less restrictive alternatives. "This case calls for nothing more than a straightforward application of McCullen," he wrote.
The case is Bruni et al v. City of Pittsburgh et al, 3rd U.S. Circuit Court of Appeals, No. 15-1755.
(Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Frances Kerry)