A request to halt a Harrisburg ordinance outlawing protests near medical clinics has been denied by a federal judge, despite claims from abortion opponents that it restricts free speech.
Two plaintiffs represented by a religious liberties group sought an injunction against Harrisburg’s “buffer zone” ordinance, which prevents protesting, picketing and congregating within 20 feet of health clinic entrances. The plaintiffs claimed in a 2016 suit that it limits their ability to conduct “pro-life sidewalk counseling” outside of the N. 2nd St. Planned Parenthood, Harrisburg’s only abortion provider.
The ruling does not end litigation on the matter, since attorneys at the Liberty Counsel, a Florida-based nonprofit representing the plaintiffs pro bono, already filed an appeal. But it means Harrisburg can continue to enforce the ordinance while the plaintiffs, Colleen Reilly of Lebanon and Becky Biter of Fayetteville, pursue a suit aimed at overturning the law entirely.
Reilly and Biter argued for the preliminary injunction last November, and federal judge Sylvia Rambo issued an opinion in late August denying it.
Rambo rejected their claim that the ordinance is narrowly tailored to limit anti-abortion speech. She said it regulated particular acts, such as picketing and congregating, instead.
“This complex question, simply put, is whether an ordinance passed by a local government entirely restrains a particular message or merely places reasonable limitations on how that message may be delivered,” the opinion states. “Upon thorough examination, this court finds that the Ordinance constitutes the latter.”
The plaintiffs testified in November that their methods of advocacy – which include approaching clinic patients and offering anti-abortion literature — would be more effective if they could walk with patients to the clinic door.
“Our goal is to show women they’re not alone,” Biter testified. “The best way is to get close to a woman, hug her, lead her away from the abortion facility, and sit her down in a safe place to show her someone cares.”
Rambo concedes that the ordinance “places a minor physical restriction on a profound right” of free speech. But she ruled that Harrisburg did not have a less restrictive alternative.
Harrisburg’s defense team has argued that lifting the buffer zone would empower more virulent, confrontational protesters. They say the city can’t afford to station police at its medical clinics, an argument Rambo found credible.
But Liberty Counsel founder Mat Staver said there’s at least one less restrictive policy – lifting the buffer zone entirely. And he thinks Supreme Court precedent is on his side.
“For cities that have these buffer zone laws or intend to pass them, I think it’s a matter of time before they are struck down,” Staver said.
But Harrisburg’s lawyers believe Staver is interpreting precedent too broadly. The Supreme Court did overturn a buffer zone statute in Massachusetts in 2014, which applied to all medical clinics across the state. Harrisburg Solicitor Neil Grover said such policies are stronger at the local level, where lawmakers don’t have to account for differences among hundreds of medical clinics.
“The situation we have here is radically different,” agreed Frank Lavery, outside counsel for the city. “It’s an ordinance for a small city that only applies to one small abortion clinic.”
If the Third Circuit Court of Appeals does grant the injunction, the decision would become binding precedent across the court’s jurisdiction, an area encompassing all of Pennsylvania, New Jersey and Delaware, Staver said. It would also be persuasive precedent in other parts of the country, where the Supreme Court ruling on statewide buffer zones already applies.
The case has cost Harrisburg $171,000 since it was first filed in 2016. Grover says the city is committed to defending it in court.