CHARLESTON, W.Va. — State Attorney General Patrick Morrisey says his office will review an ordinance approved by Charleston City Council Monday that adds restrictions to those protesting or counseling outside a women’s health care clinic where abortions are offered.

Patrick Morrisey

Morrisey, during an appearance Tuesday on MetroNews “Talkline,” said the key to the ordinance’s constitutionality may very well lie in how it’s enforced by Charleston police.

“One of the very important pieces of analysis that has to occur here is to see how the City of Charleston may ultimately enforce these provisions as well because there may be an ‘as applied’ challenge to the ordinance,” Morrisey said.

The new language makes it unlawful for someone to knowingly block an entrance or parking lot of a health care facility, as well as approach a person or provide them with a pamphlet without their consent. Charleston Police Chief Opie Smith said he’s become concerned about the number of calls police have gotten from outside the Women’s Health Center on West Washington Street in recent months. The clinic offers a number of services to women including abortions.

West Virginians for Life President Wanda Franz, a guest Tuesday on 580 Live on WCHS Radio with Danny Jones, said there have been no arrests in connection with those complaint calls. She said the ordinance is unnecessary.

“The reality is that no action has occurred that has blocked or prevented any woman from entering or leaving the clinic and had those sorts of things happened, if there would have been any physical blocking of anybody, the police would have been there and arrests made,” Franz said.

She said those on the opposite side of the abortion debate are upset because pro-life street counselors have been successful.

“It has given them (the women) the choice to do something else including adopting their children to women who are there wanting to adopt babies,” Franz said.

The ordinance was copied after an existing Colorado law. Charleston City Attorney Kevin Baker said the Charleston ordinance will pass constitutional muster because it strikes a very narrow balance of protecting those using the clinic and those exercising their right to free speech.

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Kevin Baker

Baker said, during an appearance Tuesday on “Takline,” the ordinance allows protesters to be close to those entering the clinic they just can’t approach them.

“The ordinance only prohibits people who are approaching those people trying to enter those facilities. So if you’re just standing there on the sidewalk with your sign yelling and doing whatever you are doing, you are not in violation of that,” Baker said. “They need to not block people and not approach them.”

According to the ordinance, an approaching person cannot come within eight feet of someone entering the facility while within 100 feet of the building.

“As long they don’t approach that person. They can ask for their consent to approach them, they can talk to them, project their message, according to the First Amendment. As long as they don’t approach them within eight feet of that person. They have to take an action to knowingly approach them to violate it,” Baker said.

Morrisey, who plans to speak with state lawmakers about the ordinance, said the measure raises “meaningful constitutional issues” that have to be looked at closely. He said there appear to be factual differences between the Charleston ordinance and the Colorado law. He said the make-up of the U.S. Supreme Court that ruled on a Massachusetts buffer zone case has also changed.

“When you combine that with the potential factual differences between here and Colorado and you look at the nature of the West Virginia State Constitution–I think there’s going to be a constitutional challenge to this ordinance,” Morrisey said.

Wanda Franz

Franz said a legal challenge is one option her group is exploring. She said Charleston Council has made its decision.

“What we have is an attack on an ideology and the city council has taken a stand on that ideology and this is blatantly unconstitutional,” Franz said.

Morrisey said it’s important to step back and look at the broader landscape on the issue which will probably take some time.

“We look at the factual differences that might emerge as this ordinance is being enforced. We look at the distinction between the federal constitution and state constitution in terms of protection of free speech rights. We look at whether there are other legitimate alternatives, less restrictive means, in being able to accomplish the objectives of Charleston City Council and we analyze all of these issues before we proceed,” Morrisey said.

Baker said a legal challenge wouldn’t surprise him but it may end up being a moot issue because of an existing case that’s currently under appeal.

“The case in the 7th Circuit is likely to be decided by the Supreme Court at some point in the next year. We may have an answer from the Supreme Court of the United States before we have any challenge here in Charleston. We’ll just have to wait and see,” Baker said.