Victory: Federal Court Rejects Government Effort To Dismiss Free Speech Case of Pro-Life Sidewalk Counselors

We just obtained an important victory for the lifesaving work of pro-life counselors. We’ve been telling you how, especially in the wake of Dobbs, the abortion industry has been intent on shutting down pro-life speech.

As explained in more detail here, just over two years ago we filed a lawsuit against the abortion buffer zone law of Louisville (“the City”) on behalf of two sidewalk counselors. The law establishes a no-speech zone outside every healthcare facility in the City, including what was then the City’s only clinic performing abortions.

After a resounding victory before the Sixth Circuit Court of Appeals, which ordered a preliminary injunction against the enforcement of the law because of its lack of narrow tailoring, the case went back to the district court for a final decision on the merits.

The Sixth Circuit’s decision should have convinced the City to admit to the unconstitutionality of the law and agree to a permanent injunction. Not so. The City instead tried to convince the district court that because abortion is now illegal in Kentucky, the case should be dismissed.

As explained here, the court held an evidentiary hearing last October on that issue, and we filed briefs with the court arguing that the case is not moot but very much alive. One of our clients continues to pray and counsel with women outside Planned Parenthood and the clinic, which – while not performing abortions itself – continues to provide abortion referrals out of state.

Last week, on March 30, the district court issued a ruling denying the City’s efforts to dismiss the case on grounds of mootness. It held that even though abortion is now illegal in Kentucky, and some circumstances surrounding sidewalk counseling have changed as a result, the law still impacts free speech activities. As the court held:

Adopting the Sixth Circuit’s reading of the Ordinance, an invisible, yet enforceable, buffer zone exists outside of every healthcare facility in the city and Plaintiffs state that prayer is still occurring at certain of these facilities. Plaintiffs’ facial challenge applies just as forcefully to the buffer zone outside of a downtown hospital, or a fertility clinic, as it does [the clinic that once performed abortions]. Thus, faced with a live controversy and a facial challenge to an in-force ordinance, this Court finds that the case is not moot.

While the decision is an important victory for our clients and the right to free speech, the case is still not over. In its ruling, the court ordered a second evidentiary hearing to address the constitutionality of the law. During that hearing, the City will need to come forward with evidence that it could not have used less restrictive alternatives to deal with conduct outside healthcare facilities without suppressing speech that lies at the heart of the First Amendment. We don’t believe the City will be able to meet its burden.

The fight for pro-life sidewalk counselors to engage in free speech at the very location where alternatives to abortion need to be heard more than anywhere else is far from over. As discussed here, we will soon be asking the U.S. Supreme Court to take up our case against the abortion buffer zone law in Englewood, New Jersey,  which is, in many respects, similar to Louisville’s law. The government’s authority to silence speech in areas that have been traditionally open for public use, such as sidewalks, is sharply circumscribed – and for good reason. As the Supreme Court held in McCullen v. Coakley, unanimously striking down Massachusetts’ abortion buffer zone law:

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail,” this aspect of traditional public fora is a virtue, not a vice.

The ACLJ has been defending the right to free speech outside abortion clinics since Day One. And we will keep up that fight so long as government officials seek to suppress that fundamental liberty.