Appeals Court: Judge Was Wrong to Strike Down ‘Buffer Zone’ Law Restricting Those Seeking to Save Unborn at NJ Abortion Facility

ENGLEWOOD, N.J. — A federal appeals court that decides cases in the jurisdiction of Pennsylvania, New Jersey and Delaware has sent back a lower court ruling that found a buffer zone around an abortion facility in New Jersey to be unconstitutional, stating that the court erred in its decision to grant summary judgment to those who are seeking to save the unborn on the public sidewalk.

“We conclude that the District Court erred in granting summary judgment because the ordinance was not overbroad,” wrote Judge Theodore McKee, a Clinton appointee, on behalf of a three-judge panel of the Third Circuit Court of Appeals. “Courts may not strike down a regulation as ‘overbroad unless the overbreadth is substantial in relation to the [regulation’s] plainly legitimate sweep.’”

McKee was joined in the ruling by Judges Thomas Vanaskie, nominated to the bench by then-President Barack Obama, and Eugene Siler, nominated by then-President George H.W. Bush.

BACKGROUND

The case involves a law passed in 2014 that places an eight-foot buffer zone on the sidewalk adjacent to the entrance of Metropolitan Medical Associates in Englewood — a facility that, according to its website, offers abortions up to 24 weeks (six months) gestation. Violators are subject to fines and possibly jail time if they step within the prohibited area.

The Third Circuit wrote, based on claims made by the City, that the ordinance was necessary because of “militant activists and aggressive protestors” gathering outside of the abortion facility. It cited that an evangelical church, Bread of Life, “engaged in extremely aggressive, loud, intimidating, and harassing behavior towards patients” and “had ties to other radical anti-abortion organizations.”

Two members of Bread of Life told Christian News Network that they had no idea that the City had written about them in the lawsuit. They expressed concern that they were being “slandered,” stating that the characterization of their outreach activities is false and that they have no affiliation with the abortion opposition groups cited — even having disagreement with them.

In 2015, a Roman Catholic woman named Jeryl Turco who hands out literature and rosaries outside of Metropolitan Medical Associates challenged the buffer zone ordinance in court. She argued that the law is unfair in that abortion facility escorts may freely engage in free speech on the same portion of sidewalk that she and others are prevented from standing on, all the while blocking her view and drowning her out.

“These ‘escorts’ use various methods to prevent Plaintiff from having any possibility of engaging in a conversational discussion with individuals heading to or from the clinic, including placing themselves as a physical barrier between the individuals and Plaintiff,
singing and shouting loudly to drown out the sound of anything Plaintiff says, and trying to persuade individuals to not accept Plaintiff’s literature and rosaries by saying things like ‘You don’t need that,’ ‘Don’t listen to her,’ or ‘She’s lying,’” the lawsuit reads.

The American Center for Law and Justice (ACLJ) outlined in court that Turco wasn’t engaged in any improper behavior. Attorney Francis Manion told Christian News Network on Wednesday that he is also doubtful that the alleged behavior attributed to Bread of Life is anything like what the City claims it is.

“We did continually throughout the case make the point that, if this stuff is happening, why haven’t you done anything about it? … Why don’t you enforce the law — [such behavior] is already against the law — if that’s really happening? … You don’t need to set up a buffer zone that excludes everybody from the sidewalk,” he stated. “And I think the implication is that it really isn’t as bad as the City is claiming.”

Manion further pondered whether the abortion facility escorts are technically in violation of the ordinance by standing within the buffer zone. He noted that the escorts are simply volunteers and not paid staff, and might not be considered to be agents of Metropolitan Medical Associates. However, if the facility indeed claims the escorts as corporate agents, then the business could be held be civilly liable should an escort-related matter be filed in a court of law.

DISTRICT COURT RULING

Last year, U.S. District Judge Susan Wigenton, nominated to the bench by then-President George W. Bush, granted Turco summary judgment in the case, finding the buffer zone statute to violate her First Amendment rights.

“Defendant bears the burden to show that alternative measures would fail to achieve its goal,” she wrote. “Defendant did not employ alternative, less restrictive means that were available. … Defendant did not prosecute any protesters for activities taking place on the sidewalk outside of the clinic in the five years prior to the adoption of the ordinance; and Defendant did not seek injunctive relief against individuals whose conduct was the impetus for the ordinance.”

“The right to freely assemble on the public street and sidewalks is also afforded maximum constitutional protection,” Wigenton continued. “Because this Court finds that the ordinance is not narrowly tailored, Plaintiff’s motion for summary judgment as to her freedom of assembly claim is granted.”

Read Wigenton’s ruling in full here.

THIRD CIRCUIT REMAND

However, on Aug. 19, the Third Circuit Court of Appeals ruled that Wigenton too quickly found the ordinance to be overbroad and that she should not have yet granted summary judgment as various claims seem to contradict each other.

“This record contains a multitude of contradicting factual assertions,” McKee wrote. “Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience.”

“Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic,” the court continued. “Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective.”

McKee said that because the facts are not settled, Wigenton needs to go back and revisit the matter to find conclusive evidence, stating that neither side is entitled to summary judgment as of yet.

Read the Third Circuit ruling in full here.

Manion explained in a statement that “[t]he court did not rule that Englewood’s buffer zone was legal, only that the district court didn’t have enough evidence to declare it illegal — yet.”

STILL PENDING

Two other buffer zone cases, one from Pittsburgh and another from Harrisburg, are still pending before the Third Circuit. The U.S. Supreme Court has issued mixed rulings about buffer zones, at times upholding them and other times finding them to be too restrictive.

In 2014, the court unanimously ruled in the case of McCullen v. Coakley that the state of Massachusetts erred in passing a law placing 35-feet buffer zones around abortion facilities as it puts too great of a burden on citizens’ First Amendment rights.

“Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks — sites that have hosted discussions about the issues of the day throughout history,” wrote Judge John Roberts. “Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities.”

“But here, the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.”

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