Federal appeals court allows lawsuit challenging Pittsburgh 'buffer zone' to go forward

June 3, 2016 — A federal appeals court on Wednesday in a 3-0 decision allowed a lawsuit challenging a Pittsburgh "buffer zone" ordinance to go forward, Reuters reports (Stempel, Reuters, 6/1).


The Pittsburgh buffer zone law is a modified version of a 2005 ordinance that the 3rd U.S. Circuit Court of Appeals struck down in 2009. In that ruling, the appeals court said the ordinance was illegal because it barred protesters from leafleting and other forms of free speech within a 15-foot zone around any "hospital or health care facility" and also barred protesters from coming within an 8-foot "bubble zone" of women who were within 100 feet of a clinic.

After the 2009 ruling, the city decided to drop the bubble zone provision. Further, another federal judge ruled that protesters could distribute leaflets and converse with women on a one-on-one basis as long as they did not "knowingly congregate, patrol, picket or demonstrate" in the buffer zone.

Details of legal challenge

After the ordinance was modified, five abortion-rights opponents filed a legal challenge against the law. The plaintiffs claimed it violates a unanimous Supreme Court ruling that struck down a Massachusetts law barring protesters from entering a 35-foot buffer around abortion clinics. However, Pittsburgh city attorneys have said the city's ordinance does not raise the First Amendment issues the high court noted in the Massachusetts case.

In March 2015, U.S. District Court Judge Cathy Bissoon denied the plaintiffs' request for an injunction to block enforcement of the ordinance, ruling that the buffer zone did not violate the protesters' First Amendment rights. However, Bissoon ruled there was not enough evidence to indicate whether Pittsburgh officials selectively enforced the buffer zone. As a result, she said the underlying suit could continue on the plaintiffs' claim that individuals associated with Planned Parenthood who escort women into clinics are able to gather inside the buffer zones and speak with the women, while abortion-rights opponents are not (Women's Health Policy Report, 3/10/15).

Later in March 2015, the plaintiffs dropped allegations that city officials selectively enforced the ordinance in order to facilitate an appeal of the federal ruling that found the ordinance is constitutional (Women's Health Policy Report, 3/20/15).

Latest developments

According to Reuters, a three-judge panel of the 3rd Circuit unanimously decided to allow the lawsuit to go forward in light of the Supreme Court's ruling in the Massachusetts case (Reuters, 6/1).

The ruling stated that the Supreme Court's decision in the Massachusetts case "teaches that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each individual case -- the same type of buffer zone may be upheld on one record where it might be struck down on another" (AP/CBS Pittsburgh, 6/1).

In the ruling, Circuit Judge Kent Jordan wrote, "The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment," adding, "The city cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the city's legitimate, substantial, and content-neutral interests" (Reuters, 6/1).

According to AP/CBS Pittsburgh, the appeals court's decision does not address the merits of the lawsuit.

In response to the court's decision, Assistant City Solicitor Matthew McHale said, "The Third Circuit's ruling just means the case will proceed for now, and there will be other opportunities for the [c]ity to prove the [o]rdinance should be upheld as constitutional" (AP/CBS Pittsburgh, 6/1).