This dispute required the Third Circuit to determine whether or not a “speech buffer” surrounding abortion clinics was constitutional. The ordinance creating this buffer (the Ordinance) was passed in 2005 and prohibits congregating, patrolling, picketing, or demonstrating within fifteen feet “from any entrance to [a] hospital and or health care facility.” The court vacated the lower court’s dismissal of the plaintiffs’ First Amendment claims, reasoning that the City of Pittsburgh failed its burden to show that the Ordinance was the least restrictive method of achieving its goal.

The Ordinance facially applies at all hospitals and health care facilities, but Pittsburgh demarcated only two actual buffer zones. Both of these zones exist outside of facilities that provide abortion services. One of these zones—at a Planned Parenthood facility—was at dispute in this case. The plaintiffs were a group that regularly, and peacefully, prayed, leafleted, counseled, and advocated a pro-life stance outside of the Planned Parenthood. Pittsburgh read the Ordinance to ban such activities, and, as a result, the plaintiffs alleged that the prohibition makes it difficult for them to engage in their speech and expressive conduct.

The plaintiffs filed suit in the Western District of Pennsylvania, alleging violations of the First and Fourteenth Amendments. The district court dismissed their facial challenges to the Ordinance under both amendments and denied plaintiffs’ request for a preliminary injunction, which would have temporarily prohibited Pittsburgh from enforcing the Ordinance. The plaintiffs appealed. They sought review solely of their First and Fourteenth Amendment claims, not the denial of the preliminary injunction.

The Third Circuit determined to hold the Ordinance to “intermediate scrutiny.” Intermediate scrutiny requires (1) a significant government interest (2) that is narrowly tailored to serve that significant interest. Here, the Third Circuit found a significant government interest in ensuring that patients have “unimpeded access to medical services” and allowing Pittsburgh to “provide a more efficient and wider deployment” of law enforcement services. However, the court was unable to find that Pittsburgh had considered alternative measures that would have been less restrictive of the plaintiffs’ speech than the Ordinance. This was due to the fact that the plaintiffs’ claims were dismissed at the pleading stage, which did not afford Pittsburgh an opportunity to put on evidence showing that it did, in fact, search for alternatives. As a result, the judgment of the district court was vacated, and the plaintiffs’ claims were ordered to be re-assessed at the district court level.

Click here to read: Bruni v. City of Pittsburgh, No. 15-1755 (3d Cir. June 1, 2016).

Edited By:

Bob Turchick,  Law Clerk