Harpring v. Louisville: The Fight for Pro-Life Sidewalk Counselors To Have a Public Pro-Life Witness Continues

As explained in more detail here, we filed a lawsuit against Louisville’s abortion buffer zone law two years ago on behalf of two longtime sidewalk counselors. Louisville had been trying for years to put a no-speech zone outside the city’s one abortion clinic in order to keep women from hearing about alternatives to abortion. After a change in the composition of the city council, the pro-abortion advocates got their way, and Louisville imposed a buffer zone outside each and every healthcare facility in the city.

When the district court denied our motion for a preliminary injunction, we took the case on appeal to the Sixth Circuit, which reversed the district court in short order after hearing oral arguments. In ruling that our clients were entitled to a preliminary injunction, the Sixth Circuit agreed with us that it is not the size of the buffer zone that decides the case but whether the law substantially burdens more speech than necessary to achieve a governmental interest.

In a brilliant opinion by Chief Judge Jeffrey Sutton, the appeals court held that Louisville’s ordinance “lacks any tailoring, to say nothing of narrow tailoring.” The city failed to show a sufficient reason to silence speech outside “every single hospital, clinic, and dentist’s office in the area.”

Even though Louisville suffered a resounding loss on appeal, the city won’t raise the white flag over its unconstitutional law. The city is now arguing that because abortion is currently illegal in Kentucky, our case is moot and should be dismissed.

The district court held an evidentiary hearing on October 11 to decide that issue. Testimony was taken of our client, Ed Harpring, and others, including Angela Minter of Sisters for Life and Ona Marshall, the owner of the abortion clinic.

The critical problem with the city’s position, as we argued in our post-hearing briefing (here and here), is that the abortion clinic has not closed its doors for good. As Marshall testified, the abortion clinic has renewed its license with the state to resume providing abortions in case there’s a change in the law. The clinic also refers women to the National Abortion Federation on how they might be able to obtain an abortion out of state. More importantly, our clients and others continue to pray and speak with others outside the abortion clinic, as well as outside a local Planned Parenthood facility.

The fact that Kentucky now has enforceable pro-life laws on the books doesn’t change the facts that (1) buffer zones remain in place outside all healthcare facilities in the city, and (2) a non-exempt speaker who enters a buffer zone to pray or speak with others is subject to criminal penalties. Because our clients would be subject to such penalties without the protection of the preliminary injunction currently in place, this case is not moot—and we will continue to advocate for the First Amendment rights of our clients until Louisville’s law is permanently enjoined.

A decision from the district court is expected any day.

With the issue of abortion having been returned to the states, a public pro-life witness is more critical now than ever before. We need to change hearts and minds about the sanctity of life one person at a time—especially at those very locations where abortions are performed or referrals for abortion are provided. While pro-life laws are vital in protecting the innocent unborn—who are entitled to the same rights to life, liberty, and the pursuit of happiness as anyone else—we need to work tirelessly to make abortion not just illegal but also unthinkable. Sidewalk counselors play an essential role in doing that, and their First Amendment right to undertake that role warrants the utmost protection—protection the ACLJ has been fighting for since day one.