The ruling means that clinic escorts outside an abortion clinic will also have to ask permission to approach or talk to women considering an abortion.
Katie Short, legal director of the Life Legal Defense Fund, said the ruling shows that pro-life concerns can be resolved in court.
“In evaluating a constitutional challenge to a bubble law like this, courts will not turn a blind eye to the challenges facing pro-lifers in communicating their message, including when those challenges come from the bad behavior of clinic escorts,” Short said July 29.
Pastor Walter Hoye, who is a minister and a sidewalk counselor, challenged a city ordinance which establishes around abortion clinics a 100-foot “bubble zone” of regulated behavior. In that zone, it is illegal for anyone knowingly to approach within eight feet of people entering abortion clinics in order to protest or converse, unless that person gives permission.
Pastor Hoye charged that clinic escorts routinely break the law as written but have never faced prosecution.
He routinely stands on the public sidewalk outside abortion clinics and holds a sign reading “Jesus loves you and your baby. Let us help.”
However, clinic volunteers sometimes surround him, block his sign with blank posters and drown out his voice, making it impossible for him to reach his intended audience.
The escorts often tell women not to listen to him or take his literature, he said.
Hoye’s lawsuit charged that the law violates his free speech rights and due process rights.
In a 3-0 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said that Oakland has enforced the ordinance “against anti-abortion speakers but not pro-abortion speakers.”
Judge Marsha Berzon, writing for the court, cited the testimony of an Oakland police officer who said that the ordinance is generally applied “only to efforts to persuade women approaching reproductive health clinics not to receive abortions or other reproductive health services, and not to communications seeking to encourage entry into the clinic for the purpose of undergoing treatment.”
She said the city’s policy is not content-neutral and is “the epitome of a content-based speech restriction.”
Short said part of the ruling indicates a “possible narrowing” of the “terrible” 2000 Supreme Court ruling in Hill v. Colorado, which upheld a Colorado law limiting protests outside of health care facilities including abortion clinics.
Oakland City Attorney Barbara Parker said the ruling requires only “tweaks to the enforcement procedures” and would not weaken the protections for patients, the San Francisco Chronicle says.
Pastor Hoye has been convicted of two separate violations of the ordinance, but both convictions were thrown out on procedural grounds. He served a 30-day jail sentence in 2009 after violating a probation condition that would have required him to stay 150 yards away from an abortion clinic in Oakland.
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