Major Court of Appeals Victory in Our Pro-Life Speech Case – One Step Closer To Defeating the Pervasive Abortion Distortion in First Amendment Jurisprudence

Just over one year ago, we filed suit over Louisville-Jefferson County’s (“County”) abortion buffer zone law on behalf of two sidewalk counselors: Edward Harpring and Mary Kenney. Ed and Mary are not protestors or demonstrators. As sidewalk counselors, they offer women alternatives to abortion by engaging in personal, caring, consensual conversations and distributing literature about various lifesaving options. The Supreme Court has held that this type of activity is entitled to maximum protection under the First Amendment.

Modeled on the law unanimously struck down by the Supreme Court in McCullen v. Coakley, and similar to the law we are currently challenging in the Third Circuit, the Louisville ordinance bars non-exempt speakers from entering or remaining in a ten-foot zone outside the front doors of all healthcare facilities in the County. The intent and effect of the ordinance are clear: to silence the speech of pro-life sidewalk counselors.

When we filed suit last year, alleging that the County’s ordinance violates the First and Fourteenth Amendments, we also filed a motion for a preliminary injunction, asking the federal court to enjoin the ordinance until a final decision is made on the merits of our case. When the court denied that motion, we immediately filed an appeal with the Sixth Circuit Court of Appeals.

After briefing and presenting an oral argument just two weeks ago, the Sixth Circuit gave us the victory we’ve been fighting for: It reversed the decision of the district court and ordered it to preliminarily enjoin the County from enforcing the law. In other words, until the district court makes a final decision on the constitutionality of the ordinance, sidewalk counselors need not comply with the speech-suppressing buffer zone. They are free to use the entirety of the public sidewalk—including the area immediately outside the front doors of the abortion clinic—to share the Gospel of Life through the spoken and written word.

The Sixth Circuit’s decision, authored by Chief Judge Jeffrey Sutton, is remarkable in its clarity and decisiveness. In addition to making it crystal clear that when the government burdens speech, it must prove the constitutionality of its actions, the court held that the County’s ordinance suffers from at least two constitutional flaws.

The first problem with the ordinance is its scope. Though the County argued that protestors were interfering with persons accessing the City’s downtown abortion clinic, the County did not just create a buffer zone outside that building. Instead, the County created buffer zones outside “every single hospital, clinic, and dentist’s office in the area.” The court chastised the County for its overly broad approach, noting that “[b]ecause the County has not made any showing that all medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of narrow tailoring.”

The second problem with the ordinance is that the County did not show that it “seriously undertook to address” its concerns “with less intrusive tools.” In other words, instead of pursuing injunctions against bad actors or prosecuting those who broke the law outside the one abortion clinic where problems were to be had, the County chose the easy (and unconstitutional) way out: suppress the speech of everyone. The County claimed that such injunctions and prosecutions were difficult to obtain, but the court would have none of it: “[m]ore than some difficulty . . . is required to uphold regulations that suppress speech.” As Judge Sutton noted, “Solving policy problems by regulating speech is a means of last resort, not first resort.”

Finally, the court clarified an important point that’s been at issue in buffer zone cases since McCullen v. Coakley was decided in 2014: The size of a buffer zone does not alone determine its constitutionality. What matters is whether the zone substantially burdens more speech than necessary. As Judge Sutton noted:

[McCullen] does not create distinct sets of rules for a 35-foot buffer zone near an entrance, a 10-foot buffer zone near an entrance, and all manner of buffer zones in between. It instead says that narrow tailoring is required for all such burdens on speech . . . . Narrow tailoring turns on whether a law sweeps more broadly than necessary, not on whether its yoke is heavy or light.

Yesterday’s decision from the Sixth Circuit is not just a great victory for our clients, it’s a victory for the First Amendment rights of all pro-life speakers. Next month, we’ll be filing a second brief in our Third Circuit sidewalk counseling case. We’re confident that the Sixth Circuit decision will play an influential role when that court decides our appeal sometime next year.

While our clients are now protected by a preliminary injunction, a decision on a preliminary injunction does not end a lawsuit. Once the Sixth Circuit sends the case back to the district court, the County will have to decide whether to abandon its ordinance and go back to the drawing board or dig in its heels and try to defend its ordinance to the bitter end. Either way, the ACLJ is prepared to do what we’ve been doing since day one: defending the free speech rights of sidewalk counselors.