Does the First Amendment apply to pro-life sidewalk counselors, advocates, and prayer warriors?
You bet. The First Amendment protects every American’s right to speak freely. But an ordinance in Pittsburgh, Pennsylvania, bans pro-life advocates from speaking—or even praying—within 15 feet of the entrance of any abortion facility.
Not only is this law unconstitutional, it prevents women entering abortion facilities from hearing the helpful aid and alternative options these counselors have to offer. That’s why several sidewalk counselors in Pittsburgh have challenged this law in court since 2014. Today, their fight will continue as they ask the United States Supreme Court to hear their case.
The Supreme Court Has Already Struck Down a Similar Law
Back in 2014, the Supreme Court heard a case on a similar law in Massachusetts. The state prevented pro-life advocates from speaking within 35 feet of the entrances, exits, and driveways of abortion facilities.
This affected the mission of sidewalk counselors like Eleanor McCullen. Eleanor spent five hours a day, two days a week outside of a Planned Parenthood in Boston. She gently approached men and women entering the building and engaged them in conversation. But after the law went into effect, Eleanor and other counselors were forced to shout to get the attention of the men and women entering Planned Parenthood. This was obviously inconsistent with their soft-spoken, peaceful approach, and gave the impression that they were there to condemn the men and women entering the facility and their unborn children, when they were really there to help them.
But over five years later, a similar law in Pittsburgh remains on the books. The First Amendment is supposed to protect—in all public places—peaceful one-on-one conversations, the handing out of literature, and simple acts of prayer. That’s why these Pittsburgh pro-life advocates challenged the city’s law in court. And last October, the U.S. Court of Appeals for the Third Circuit ruled on their case for the second time. Unfortunately, that ruling left them with more questions than answers and no protection.
Pittsburgh’s Pro-Life Sidewalk Counselors Deserve Justice
Pittsburgh’s law, passed in 2005, allows government officials to ban leafleting and other free speech around healthcare facilities, including abortion clinics. That sounds innocuous. But when the City enacted the law, the City Council’s chair—who sponsored the ordinance—explained at the official hearing that the real goal was “protecting” women “from unwanted communication,” i.e., sidewalk counselors offering alternatives to abortion. And when the City set about painting yellow lines to mark the zones where free speech was prohibited near facility entrances, it chose only two locations in the entire metropolis: the City’s two abortion clinics. Fancy that. This clearly violates the freedom of speech, and it contradicts the Supreme Court McCullen decision.
But instead of following Supreme Court precedent and ruling that Pittsburgh’s buffer zone law was unconstitutional, the Third Circuit re-wrote the city’s law to save it. It’s just the latest example of the legal gymnastics that courts have used to rule against pro-life interests. And the result was decidedly not helpful.
First, the Third Circuit said that even though the City clearly intended the buffer zone to prohibit sidewalk counseling, the court was not willing to read it the same way. This sounds like a win for the counselors, doesn’t it? But it’s not. Because federal courts lack authority to redraft state and local laws, Pennsylvania state courts are not bound by the decision. Worse, because the interpretation is not binding, City officials still have the ability to prosecute the sidewalk counselors for speaking in the prohibited zone, notwithstanding the court’s view!
Second, the Third Circuit upheld the law to the extent it prohibited pro-life advocates from praying or silently holding signs or wearing buttons in the prohibited zone. In the court’s view, the burden on the advocates was so insignificant it did not amount to a First Amendment violation. This was so, said the court, even though the City showed no need for the law at all. In fact, the City had anti-obstruction and other laws already on the books that the City had never enforced.
The result is an opinion that allows Pittsburgh to prohibit large swaths of speech while leaving the option open for the City to prosecute the same sidewalk counselors the Third Circuit purported to “help.” These counselors and advocates deserve better. Let’s pray that the U.S. Supreme Court agrees to hear this case.
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