ACLJ Victory for Pro-Life Speech: Federal Court Rules in Favor of Sidewalk Counselors

In 2021, the ACLJ initiated legal action against Louisville’s buffer zone ordinance on behalf of two sidewalk counselors. This ordinance imposed unconstitutional speech restrictions outside all healthcare facilities within the city, including EMW Women’s Surgical Center and Planned Parenthood, Kentucky’s only abortion providers at that time.

After a crucial victory in the Sixth Circuit Court of Appeals—holding that our clients were likely to succeed on the merits of their free speech claims and ordering the lower court to enter a preliminary injunction—the case returned to the district court for final adjudication.

Instead of following the Sixth Circuit’s lead by retracting its constitutionally dubious ordinance, the city intensified its defense. The city sought dismissal of our case on the grounds that it had become moot, arguing that since abortion was now illegal in Kentucky, the case no longer posed an ongoing controversy.

During a hearing last October, we contended that the legal interests of our clients remained very much alive and in need of judicial vindication. One of our clients continues to engage in prayer outside EMW and Planned Parenthood, and EMW still facilitates out-of-state abortion referrals.

On March 30, the district court rejected the city’s motion to dismiss, ruling that, despite abortion’s illegality in Kentucky, the buffer zone ordinance still curtails constitutionally protected speech. The court, invoking the Sixth Circuit’s decision, emphasized that the buffer zone applies indiscriminately to all healthcare facilities, regardless of whether such a zone is requested.

Following this important ruling, the court convened a hearing in May to scrutinize the constitutionality of the ordinance under the First Amendment. The onus was on the city to demonstrate the ordinance is narrowly tailored to serve a significant governmental interest—a standard reaffirmed in McCullen v. Coakley, a Supreme Court decision unanimously holding that Massachusetts’ buffer zone law was unconstitutional.

We are pleased to announce that, on September 13, the district court ruled in our favor, bringing the case to a favorable resolution. The city is now permanently enjoined from enforcing the buffer zone ordinance against any individual, including our clients: “Defendants are permanently enjoined from enforcing Louisville-Jefferson Ord. Code § 132.09(B)(2).”

This ruling is a victory for free speech and the rights of sidewalk counselors. Should abortion ever be reinstated in Kentucky, and should EMW resume abortion services, our clients will be protected in their mission to offer women alternatives to abortion immediately outside the clinic’s entrance. In the interim, our clients, along with any other citizens, are free to pray and offer counseling outside any healthcare facility in the city, including EMW and Planned Parenthood.

Nonetheless, the broader struggle to safeguard pro-life speech persists. Currently pending before the U.S. Supreme Court is our petition for a writ of certiorari in Turco v. City of Englewood, NJ, challenging an ordinance similar to Louisville’s. We anticipate a decision on that petition as soon as next month. In addition, the ACLJ has submitted an amicus brief supporting sidewalk counselors in Coalition Life v. City of Carbondale, which is also pending before the Supreme Court. That petition, along with ours in Turco, seeks to overturn the erroneous precedent established in Hill v. Colorado, which sanctioned floating bubble zones around individuals entering abortion clinics. We remain hopeful that, one way or another, Hill and the confusion it has sown in the lower courts will soon be laid to rest.

Since its inception, the ACLJ has been unwavering in its defense of free speech outside abortion clinics, and we will continue this fight for as long as government entities attempt to suppress this fundamental right. Our victory in Louisville strengthens our resolve and sets an important precedent for future cases.