What’s the difference between 35 and 15 — it’s an arithmetic question and, in Pittsburgh, now a legal question.
It’s a question that came into sharp focus Thursday as the Supreme Court invalidated a 35-foot buffer zone surrounding reproductive health clinics in Massachusetts. In a unanimous decision, the court said the statute, designed to limit crowds and disturbances around the clinics, violated the First Amendment.
The decision could have a ripple effect on similar statutes, including a 15-foot buffer zone enacted in 2005 in Pittsburgh; within this radius, people cannot “knowingly congregate, patrol, picket or demonstrate.”
Like most buffer zone laws, Pittsburgh’s has drawn the ire of anti-abortion counselors interested in urging women entering clinics to make alternative decisions. In 2009, a three-judge appeals court panel found unconstitutional Pittsburgh’s combination of the buffer zone with a floating, protective bubble around patients approaching the clinic. The judges in Brown v. Pittsburgh told the city to pick one or the other, and the floating zone was jettisoned.
In the wake of the Supreme Court decision, Pittsburgh officials came to the defense of the local ordinance, saying it differs sufficiently from the Massachusetts statute struck down in McCullen v. Coakley.
“The decision is going to require some careful review, but it appears that Pittsburgh’s law is narrowly tailored enough to stay in effect,” said Tim McNulty, spokesman for Mayor Bill Peduto, who voted for the law as a city councilman in 2005. “We believe in the ordinance. We believe that it does balance the relevant concerns. More importantly, so does the federal court.”
Lawyers for the plaintiff in the 2009 appeals court case said Thursday’s decision renews concerns about the local ordinance. David Cortman, director of litigation for the international Alliance Defending Freedom, said the Pittsburgh law suffers from the same defects the court found in Massachusetts’ statute, the precise scope of the exclusionary zone notwithstanding.
The Alliance — which seeks to make the legal system amenable to “religious liberty, the sanctity of life and marriage and family,” according to its website — is keen on revisiting other buffer zone laws, including in Pittsburgh, Mr. Cortman said: “Where we have clients, we will relitigate.”
Troy Newman, president of anti-abortion Operation Rescue, said the court’s decision sounds the death knell for all such statutes.
“It doesn’t matter if it’s 15 feet, 35 feet or 97 feet,” Mr. Newman said. “All of these are now going to fall based on the McCullen decision.”
Legal experts were not so certain. Richard H. Fallon Jr., a constitutional law professor at Harvard Law School, said the court’s decision opens up “serious questions” about the constitutionality of other buffer zone laws. Still, it’s not a “slam dunk” for petitioners, he said.
Mr. Fallon said relevant questions include the difference between 15 and 35 feet, as well as the availability of alternate means of preventing violence and harassment outside clinics. Though the court’s decision was unanimous, five of the nine justices said the state could have drafted the law to burden less speech. Four justices, led by Justice Antonin Scalia, said the provision was “unconstitutional root and branch.”
Each buffer zone is now likely to be scrutinized “fact by fact,” said Steven Baicker-McKee, an assistant law professor at Duquesne University’s School of Law, who cautioned against sweeping applications of the McCullen judgment.
Sue Frietsche, senior staff attorney for the Women’s Law Project, said the court’s decision does not reflect the experiences of women who have faced intimidation, in Massachusetts and in Pittsburgh. She said Pittsburgh’s law has successfully quieted disturbances and unwanted advances, including images of bloody fetuses being shoved into the handbags and coat pockets of women.
There were 16 complaints of harassment in 2004 outside the Planned Parenthood clinic Downtown and nearly double that number in 2005, according to CEO Kim Evert. Planned Parenthood spokeswoman Aleigha Cavalier said the number of incidents has fallen sharply since the city ordinance took effect.
The Downtown clinic and Allegheny Reproductive Health Center in East Liberty are the two abortion clinics in the city.
Isaac Stanley-Becker: firstname.lastname@example.org or 412-263-3775. Twitter: @isb_isaac.