Two anti-abortion activists who say Harrisburg is improperly applying its law banning protests within 20 feet of a healthcare facility argued their case Thursday at the Third Circuit Court of Appeals in Philadelphia.
The 8-year-old case is now in the hands of a panel of judges.
Colleen Reilly and Becky Biter, argue that the city’s buffer zone ordinance violates their First Amendment rights and prevents them from providing “sidewalk counseling” to patients – including passing out leaflets, praying and talking with women.
After police were called several times to mediate disputes between patients seeking care in clinics and anti-abortion activists, the city passed its law in 2012.
It aims to protect patients’ right to services and demonstrators’ First Amendment rights. It states that no one should knowingly congregate, patrol, picket or demonstrate within 20 feet of a health clinic.
The plaintiffs’ attorney, Matthew Staver, claimed the city’s enforcement goes against the Third Circuit’s ruling in Bruni v. City of Pittsburgh, which stated that the city’s ordinance prohibiting congregating, patrolling, picketing within a 15-foot buffer zone does not prohibit peaceful conversation between activists and patients going into health clinics.
Staver, who is also the founder of Christian law firm Liberty Counsel, cited incidents in 2014 and 2017 in which the plaintiffs had encounters with police officers warning them to not violate the buffer zone. In 2017, Biter went into the buffer zone to console a crying patient, but police reprimanded her, Staver alleged. He says the city’s law enforcement is preventing any kind of interaction in the buffer zone.
But Judge Thomas Hardiman, who wrote the concurring opinion in Bruni v. City of Pittsburgh, said those instances happened too long ago, and are not enough to support claims that the city is consistently violating activists’ First Amendment rights while enforcing the law.
“If what you just said is true, the city is not respecting your client’s First Amendment rights to sidewalk counsel, then there should be myriad instances of this happening last week, last month, or last year,” Hardiman said. “Where were those allegations?”
The city’s attorney, Andrew Norfleet, said the encounters mentioned by Staver did not lead to citations. But for people who engage in sidewalk counseling, it is not about whether the police cite them, said Roger Gannam, assistant Vice President of Legal Affairs at Liberty Counsel; it is about the “threat of enforcement.”
“You shouldn’t have to be looking over your shoulder or worried about the police coming to engage in protected speech,” Gannam said in an interview.
Judges pressed the plaintiffs’ attorneys for examples of incidents of police clashing with anti-abortion activists peacefully talking to clinic patients.
“I don’t know of any altercations,” Staver said. “No, and I don’t know of anybody going in the zone, and certainly our clients have not gone past the 20-foot.”
Staver said his clients would not try to counsel patients inside the buffer zone because they are afraid of being arrested.
Staver also pointed to past remarks from city solicitor Neil Grover in response to a question about what constitutes congregating as proof that the city enforces its ordinance to prohibit any kind of conversation within the buffer zone.
Norfleet pushed back on that argument, saying that regardless of what the solicitor said, he does not make policy, and “the district court and this court have recognized that those statements have no bearing” on the case.
The U.S. District Court for the Middle District of Pennsylvania ruled in 2022 that Harrisburg’s ordinance is constitutional, and denied the plaintiffs’ motion for summary judgment. The federal court will now decide whether to uphold the lower court’s decision.
Matt Maisel, spokesperson for the City of Harrisburg, said the city does not comment on pending litigation.
The U.S. Supreme Court turned away the activists’ case in July 2020, but that was before former President Donald Trump appointed Justice Amy Coney Barrett – a conservative with an anti-abortion record – later that year.
Anti-abortion advocates say they are not outside clinics to threaten or make anyone feel unsafe.
“Whether you call them protesters, demonstrators, sidewalk counselors, and there’s no one single kind of pro-life person who operates outside of an abortion facility,“ Gannam said.
Abortion rights advocacy groups are paying close attention to the case. Maggie Neely, staff attorney for the Women’s Law Project, said those types of challenges can be concerning in a post-Dobbs era because many clinics that provide abortions have closed down in other states where the procedure has become illegal or restricted.
”It makes these buffer zones like Harrisburg and Pittsburgh all the more important because we are seeing so many people that – if they have the means to do it – are traveling to states like Pennsylvania to receive care,” Neely said.
An amicus brief, authored by Neely and filed on behalf of Physicians for Reproductive Health and Pittsburgh Pro-Choice Escorts, argues that buffer zones are a safeguard against potential harassment.
There were no amicus briefs filed on behalf of the plaintiffs.
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