Two Major Cases Ongoing as We Fight To Protect the Voices of the Voiceless Unborn in Federal Court

Last week we tried the case of Jeryl Turco v. City of Englewood in U.S. District Court in Newark, New Jersey. Our client, Jeryl Turco, has been sidewalk counseling on the public sidewalks outside of the Metropolitan Medical Associates abortion business for 15 years. Nearly every Saturday morning during most of that time, Jeryl has tried to engage patients of the up-to-24-weeks abortion clinic in quiet, personal conversations, sharing a message of concern, and talking to them about alternatives to abortion. She offers them literature about fetal development and available resources to assist women in crisis pregnancies. Sometimes her efforts have met with success – and new lives – sometimes with failure; but through thick and thin, fair weather and foul, Jeryl has been a tireless voice for the voiceless, both mother and baby.

In 2014, however, in response to a then-recent uptick in raucous, aggressive, and allegedly unlawful behavior by an outside group that began appearing at the clinic, Englewood enacted a buffer zone law. The law created a set of three 8-foot buffer zones in front of the clinic door at one end of the building and an additional set of three 8-foot zones at the other end of the building. Buffer zones are essentially areas that ban pro-life speech around abortion clinics. The law, which forced Turco to now navigate a veritable obstacle course to try to sidewalk counsel, was modeled almost word-for-word on the Massachusetts buffer zone law then being challenged at the Supreme Court in the case of McCullen v. Coakley, a case in which the ACLJ filed an amicus brief. Shortly after the Englewood law went into effect, the Supreme Court – unanimously – struck down the Massachusetts law as a violation of the free speech rights of pro-life sidewalk counselors.

Following McCullen, Massachusetts and those few other places that had similar buffer zone laws on their books either repealed them entirely or replaced them with more narrowly tailored measures which the McCullen Court had suggested were preferable to speech-stifling buffer zone laws. Not Englewood. So we sued the City, arguing that, like the Massachusetts’ law struck down in McCullen, Englewood’s law was not a narrowly tailored regulation.  It burdened far more speech than was necessary to further the City’s interest in ensuring access to health care facilities. In addition, the City could not show that, before enacting the no-speech zones, it had tried or seriously considered and reasonably rejected less restrictive alternatives (such as the ones suggested in McCullen).

In 2017, the Hon. Susan D. Wigenton of the U.S. District Court of New Jersey, agreeing with our arguments, granted summary judgment in Jeryl Turco’s favor and struck down the Englewood ordinance. But the City appealed and, in late 2019, a panel of the Third Circuit Court of Appeals reversed Judge Wigenton’s decision on the limited grounds that the record of the case presented factual issues requiring a full hearing at a trial.

And so last week – seven years after we filed her case – Jeryl Turco had her day in court, telling her story in the same consistent, persuasive way she has been doing for the better part of the past decade. She believes that she has the same right as everyone else to communicate with her fellow citizens in the traditional public forum that is Englewood’s public sidewalks, that the buffer zones make it much more difficult to do so, and that the City failed to address the problem caused by the new, aggressive group of protestors through less restrictive, more narrowly focused measures such as targeted injunctions, prosecutions of wrongdoers under existing laws, or even just more consistent police presence. For Englewood, a buffer zone law was the easier route. But as the Supreme Court said in McCullen, “a painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”

During the trial, Englewood’s witnesses struggled to explain why, since they were well aware of the identity of the new “troublemakers” and had hours and hours of video of their antics, they were unable (or unwilling) to enforce existing laws against them or seek an injunction against those individuals and anyone “acting in concert” with them. Instead, they resorted to a blatantly anti-free speech measure that, as a practical matter, has had a far more restrictive impact on the likes of Jeryl Turco than on any of the people against whom it was supposedly enacted. Frankly, after listening to the City’s witnesses’ trial testimonies, and contrasting them with Jeryl Turco’s, we feel our case is even stronger today than it was when the Court granted judgment in our favor the first time back in 2017.

At the conclusion of the trial, Judge Wigenton directed the attorneys for both sides to prepare and submit written submissions by March 25th, after which she will issue her decision. We look forward to a successful outcome and vindication of the rights of sidewalk counselors such as Jeryl Turco to continue to share their message of life and hope on the front lines of the struggle for the sanctity of all human life.

Second Buffer Zone Case:

No sooner were we back from the trial in federal court in New Jersey, than we received word from another federal court, this one in Louisville, denying our motion for a preliminary injunction in another buffer zone case. In what can only be described as a legally flawed opinion, the U.S. District Court in Louisville denied the preliminary relief we were seeking on behalf of our clients, Ed Harpring and Mary Kenney. We sued Louisville late last year, arguing that the City’s buffer zone ordinance, like the one in Englewood, violated the clear precedent of the Supreme Court in McCullen.

We have already filed an appeal to the Sixth Circuit Court of Appeals. Because the appeal involves a preliminary injunction, the appeals court has placed the schedule for filing of briefs on an expedited footing with our initial brief due on April 11th. We welcome the opportunity to emphasize to the court the high stakes involved in matters such as these where the right of sidewalk counseling – a right the unanimous McCullen Court described as entitled to “maximum protection” – is in jeopardy.

We will continue fighting in both of these cases to ensure the constitutional rights of those who are on the ground, daily saving the lives of countless unborn babies, are protected. We will keep you updated as these cases continue.