Charleston’s proposed abortion ‘buffer zone’ ordinance raises 1st Amendment issues

Charleston City Council is considering an ordinance that would provide a buffer zone between individuals entering the state’s only abortion clinic and pro-life protesters and counselors.

WCHS Radio reports that Caitlin Cook, a Charleston Council member at large, introduced the measure at the request of the city police.  Cook said Charleston police have been called “multiple times where patients have been blocked from entering that facility.”

She’s referring to the Women’s Health Center in Charleston. It offers a range of services and procedures, including abortions, to low- and moderate-income women.

The proposed ordinance, among other things, creates a buffer zone of eight feet for an individual entering the clinic or any health care facility.  No one could “knowingly approach” another person “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling” without that person’s permission.

The proposal raises First Amendment issues, and the courts have been divided on this.

The pro-life side will cite the U.S. Supreme Court’s 2014 unanimous decision in McCullen v. Coakley, where the justices struck down a 2007 Massachusetts law that established 35-foot buffer zones at the entrances to abortion clinics.

Chief Justice John Roberts, writing for the majority, found the law was overly broad, that in its attempt to protect patients the law interfered with an individual’s First Amendment right to hand out a pamphlet while standing on a sidewalk. The Court recognized the state’s interest in public safety and a patient’s access to health care, but as Roberts noted, “Buffer zones impose serious burdens” on free speech rights.

However, backers of the ordinance, including pro-choice advocates, will likely refer to instances where buffer zones around abortion clinics have withstood legal challenges.

In 2017, a federal judge upheld Pittsburgh’s 15-foot buffer zone and last year a federal judge ruled in favor of a Harrisburg, Pa., ordinance that created a 20-foot buffer. Following the 2014 U.S. Supreme Court decision in McCullen, Colorado Attorney General John Suthers said the Court didn’t do anything to upend that state’s six-foot floating buffer zone.

Council member Cook said the Charleston ordinance was written in consultation with the city attorney so it would pass legal muster.  “It maintains a balance of First Amendment rights and privacy, all while ensuring public safety in the Capital City,” she said. “It’s going to give our police tools to do the jobs that they need to do.”

Frankly, that’s to be determined. The government may impose content-neutral regulations on the time, place and manner of speech, but those regulations must be narrowly tailored to serve a significant government interest.  That creates a presumption in favor of protecting speech, even when it is controversial or unpopular.

Charleston City Council may decide it wants to adopt the buffer zone ordinance—the Ordinance and Rules Committee advanced the ordinance on a 6-1 vote Wednesday night—but it’s likely the courts will have the final say in the matter.


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