Fighting the Abortion Distortion in Federal Appeals Court Even After Dobbs To Defend Pro-Life Sidewalk Counselors

Since its beginning, the ACLJ has been involved in defending the free speech rights of sidewalk counselors to share a last word of hope outside the doors of abortion clinics. Sidewalk counselors are not protestors or demonstrators; they do not carry signs or shout through bullhorns. Instead, through one-on-one quiet conversations and handing out information, sidewalk counselors offer women a message they won’t get inside the clinic: that alternatives to abortion are available. As the Supreme Court described sidewalk counselors, in the case of McCullen v. Coakley, where the ACLJ submitted an amicus brief:

They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. [Sidewalk counselors] believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm.

One such sidewalk counselor, Jeryl Turco, has been counseling women at the site of Metropolitan Medical Associates (“MMA”), a notorious abortion clinic in Englewood, New Jersey, for over 15 years. She has tried to engage patients of the up-to-24-weeks abortion clinic in quiet, personal interactions, offering a message of concern. She offers them literature about fetal development and available resources to assist women in crisis pregnancies.

After a group of demonstrators started protesting outside MMA in 2013, the City thought it needed to act quickly to quell what the City perceived to be illegal conduct. Instead, however, of dealing directly with the protestors and their alleged illegal behavior, the City chose another option: suppress everyone’s speech outside the clinic (including Jeryl’s) through a law creating no-speech zones, i.e., buffer zones, outside all healthcare facilities in the City.

Where Jeryl was once able to use the entirety of the public sidewalk outside MMA to counsel women, the six sets of no-speech zones imposed by the law at that location, forced her to navigate a veritable obstacle course while trying to exercise her First Amendment activities.

In McCullen, which unanimously struck down a similar law in Massachusetts, the Supreme Court noted the constitutional problems with buffer zones: They “exclude individuals from areas historically open for speech and debate,” and raise the concern that a government “has too readily forgone options that could serve its interests . . . without substantially burdening” protected speech.

We filed a lawsuit on behalf of Jeryl in 2014, arguing that, like the Massachusetts law struck down in McCullen, Englewood’s law was not a narrowly tailored regulation of speech. (In fact, the law adopted by Englewood was modeled almost word-for-word on the Massachusetts buffer zone law at issue in McCullen.) It burdened far more speech than necessary to further the City’s interest in ensuring access to healthcare 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).

After winning summary judgment at the district court in 2017, the Third Circuit Court of Appeals reversed that decision, holding that factual disputes needed to be resolved at trial.

On February 23rd and 24th of this year, a bench trial was held. Jeryl testified how the buffer zones impacted her speech and witnesses for the City testified how its buffer zones were necessary because of (alleged) financial restraints and the (alleged) fear of escorts and others to file complaints against the protestors.

Unfortunately, in August of this year, the district court ruled in favor of the City, holding that the buffer zones only had a minimal impact on Jeryl’s sidewalk counseling. The court also agreed with the City’s excuses that it couldn’t address its interests in ways that wouldn’t silence speech on public sidewalks, which the Supreme Court has held are prime “venues for the exchange of ideas.”

We appealed the district court’s decision to the Third Circuit in September and today we filed our opening brief.

As we argue in the brief, the idea that the six buffer zones outside MMA do not burden Jeryl’s ability to engage in personal conversations and hand out literature is not supported by the law. The Supreme Court’s holding in McCullen is clear: When the government makes it “more difficult” for citizens to speak and leaflet in a traditional public forum, “it imposes an especially significant First Amendment burden.”

Having to navigate six zones painted on the sidewalk outside MMA, while trying to engage in close and caring conversations, is more than just difficult; at times, it’s impossible. And Jeryl must avoid these no-speech zones while also avoiding traffic (and sometimes snow) in the adjoining street, as well as fixed objects placed on the sidewalk by a nearby restaurant.

In holding that the zones didn’t burden Jeryl’s speech, the district court relied on the Supreme Court’s erroneous decision in Hill v. Colorado—as did the Third Circuit when it previously decided this case. Hill, a 2000 decision that upheld an 8-foot bubble zone outside healthcare facilities, has come under fire by several Supreme Court Justices. Justice Thomas recently called it “erroneous,” “absurd,” and “defunct,” and in Dobbs v. Jackson Women’s Health Organization, the Supreme Court cited Hill as an example of how the Court’s abortion cases have “distorted First Amendment doctrines.”

We expect the City to file its opposing brief in 30 days. After we file a reply brief, addressing the City’s arguments, the case will be scheduled (again) for oral argument before the Third Circuit Court of Appeals.

Whether the Third Circuit will err once again in relying on Hill, a decision we have asked the Supreme Court to overturn time and time again, remains to be seen. Should the Third Circuit do so, we will have the opportunity to take the issue directly to the Supreme Court, asking that it put an end to Hill, and the suppression of free speech it has allowed.