Anti-abortion activists have the right to hand leaflets to women in the driveway of a Clearwater abortion clinic, a federal appeals court ruled Thursday.
In a 2-to-1 decision, the U.S. Court of Appeals for the Eleventh Circuit tossed a trial judge’s decision preventing the Florida Preborn Rescue organization from entering within five feet of the Bread and Roses Women’s Health Center’s driveway.
Instead, the lower court must pause the Clearwater ordinance preventing the group — and any other pedestrians — from entering the center’s “buffer zone” — a 38-foot stretch of public sidewalk, 28 feet of which cross the clinic’s driveway.
“The Ordinance seriously burdens Florida Preborn’s speech … by restricting the sidewalk counselors’ ability to distribute leaflets to patients as they arrive at the clinic,” the majority opinion reads.
“The controlling question is whether the challenged buffer zone — be it five, 10, or 35 feet—burdens substantially more speech than necessary to achieve the government’s asserted interests,” it continues.
“We think it likely that Clearwater’s buffer zone does so.”
Although abortion-related topics have divided the nation for decades, the conversation reached a fever-pitch in 2022 when the U.S. Supreme Court overturned Roe v. Wade.
This turned abortion regulation over to the states, sparking dramatically different pro-choice or anti-abortion laws from state to state. Since then, states like New Jersey, Colorado, and Kentucky have all seen their “buffer zone” ordinances contested.
What happened?
The case centers on a 2023 city ordinance passed to prevent anti-abortion protesters impeding vehicles’ and patients’ access to the clinic.
According to the Clearwater Police Department — which backed the ordinance — it received 73 calls in one year from the clinic to handle “continuing and recently escalating confrontation.”
The ordinance banned all pedestrians from crossing within five feet of the clinic’s driveway, exempting emergency services and clinic staff escorting women into the building, as part of a buffer zone.
Florida Preborn Rescue soon after asked a federal district judge for a preliminary injunction, alleging a free-speech violation and noting that its ability to hand out leaflets and have “close, personal conversations” had been dramatically chilled.
U.S. District Judge Mary Scriven denied their request that October.
Now, as ordered by the appellate court, Scriven will have to dissolve the buffer zone while litigation continues on the underlying merits of the case.
‘Herculean efforts’
The appellate decision was not unanimous. Judge Nancy Abudu, a joe Biden appointee, disagreed with judges Kevin Newsom and Britt Grant, both appointed by Trump.
“The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political [messages],” she wrote, citing federal precedent. “The right to be let alone is one of the most comprehensive of rights and the right most valued by civilized men.”
Abudu argued that FPR can still speak with patients driving into the clinic because their counselors are just five feet away from the driveway.
“It is difficult to even visualize how a distance of five feet seriously burdens FPR’s ability to leaflet and otherwise communicate with those entering the clinic,” she added, arguing patients interested in speaking with FPR could always walk over and accept a leaflet.
This conflicts with Newsom and Grant’s reading of the ordinance.
Because the measure bans all pedestrians except for clinic staff and emergency management, they said, this technically means patients intrigued by FPR’s message wouldn’t be allowed to walk through the buffer zone to accept a leaflet.
Moreover, they argued, that the ordinance is unnecessary and over-burdensome because Florida already has a statute preventing the obstruction of traffic ways.
–Liv Caputo, Florida Phoenix
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