Court re­news bat­tle over buf­fer zone around an abortion clinic

The Morning Call - - LOCAL NEWS - By David Porter

A fed­eral ap­peals court has re­newed a free-speech bat­tle over a town or­di­nance that cre­ated a buf­fer zone around a health clinic that per­forms abor­tions.

A U.S. district judge had pre­vi­ously ruled in fa­vor of a wo­man who sued the New Jer­sey town of En­gle­wood, a community of about 30,000 peo­ple across the Hud­son River from up­per Man­hat­tan, over the or­di­nance that pro­hib­ited the pub­lic from com­ing within 8 feet of the en­trances to Metropoli­tan Med­i­cal As­so­ciates.

The or­di­nance was passed in re­sponse to protests by an­tiabor­tion groups, which the ap­peals court char­ac­ter­ized as “ex­tremely ag­gres­sive, loud, in­tim­i­dat­ing, and ha­rass­ing be­hav­ior” to­ward pa­tients. The town said its po­lice depart­ment wasn’t able to ded­i­cate enough re­sources to en­sure safety.

Jeryl Turco, who de­scribed her­self as a side­walk coun­selor who wasn’t part of the protest groups, ar­gued in court fil­ings that the or­di­nance vi­o­lated her right to free speech by re­strict­ing her abil­ity to en­gage in peace­ful con­ver­sa­tion and dis­trib­ute lit­er­a­ture. U.S. District Judge Su­san Wi­gen­ton agreed in a Novem­ber 2017 rul­ing.

In a rul­ing pub­lished Mon­day, the 3rd U.S. Cir­cuit Court of Ap­peals in Philadel­phia sent the case back to the lower court, writ­ing that it wasn’t clear whether the or­di­nance ac­tu­ally pre­vented Turco from com­mu­ni­cat­ing her mes­sage.

The ap­peals court cited a 2000 U.S. Supreme Court rul­ing in a Colorado case that fea­tured a sim­i­lar 8-foot buf­fer. In sid­ing with the state, the high court wrote that the re­stric­tion “on an un­wanted phys­i­cal ap­proach leaves am­ple room to com­mu­ni­cate a mes­sage through speech.”

In light of that rul­ing, “we sim­ply can­not con­clude that the eight-foot buf­fer zones es­tab­lished un­der the or­di­nance posed a se­vere bur­den on speech, and the record is clearly in­ad­e­quate to sup­port such a con­clu­sion as a mat­ter of law,” the ap­peals court wrote Mon­day.

“We think the court’s de­ci­sion is in­cor­rect but would point out that it does not in any way re­solve the con­sti­tu­tion­al­ity of En­gle­wood’s buf­fer zone or­di­nance,” Frank Man­ion, an at­tor­ney rep­re­sent­ing Turco, said in an email. “We look for­ward to go­ing back to the District Court — which has al­ready ruled once in our client’s fa­vor — to have the mat­ter re­solved in Ms. Turco’s fa­vor.”

An at­tor­ney for the town of En­gle­wood didn’t re­turn an email mes­sage seek­ing com­ment Tues­day.

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