Abortion has a strong claim on being the most divisive issue in modern American politics. Not surprising, then, that municipal officials are challenged to oversee the interactions of the opposing sides at clinics that perform abortions.
Much of the relevant law is settled, but its application requires care and thoughtfulness. New Jersey courts are making sure a Bergen County city is acting appropriately.
In 2014, Englewood’s council unanimously passed an ordinance prohibiting the public, including abortion protesters, from coming within 8 feet of the entrances, driveways and such of health care facilities citywide — including an abortion clinic.
A self-described “sidewalk counselor” challenged the ordinance, and a U.S. District Court judge in 2017 found that it was too broad. It “did not create a targeted statute to address the specific issue of congestion or militant or aggressive protesters outside the clinic.” The “sweeping regulation” was deemed an excessive burden on the free speech of individuals.
The size of the buffer zone looks like less of an issue than the formulation and intent of the ordinance, which council members said was to minimize what they viewed as harassment of patients by protesters.
The U.S. Supreme Court struck down a 300-foot exclusion zone around a clinic in 1994. A decade later, it found that a 35-foot buffer zone could be “content neutral,” but wasn’t justified by the requirement that such restrictions of free speech be narrowly drawn.
In 2000, however, the Supreme Court found that an 8-foot buffer created in Colorado did not pose a “severe” burden on speech.
In its ruling a couple of weeks ago on the Englewood clinic buffer, a federal appeals court noted that the judge who overturned the ordinance didn’t explain why the top court’s prior approval of an 8-foot buffer didn’t seem to apply in this case. It sent the case back to District Court and directed the judge to also consider whether the city had adequately considered other options that would serve its interests without substantially burdening the sidewalk counselor’s speech.
It’s kind of surprising there aren’t well-established model ordinances and municipal practices to help local governing bodies handle this battleground, considering that fight has been waged for more than four decades throughout the nation.
The desirable result is clear — rules that result from the careful consideration of public safety and the privacy of patients and abortion providers, and of the rights of people to preach respectfully to patients seeking this legal medical care. Good to see the courts are ensuring this will happen.