Court renews battle over buffer zone around an abortion clinic

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.