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Popping the “Bubble Zone” Jurisprudence Before It Floats Away

Last week, the U.S. Court of Appeals for the Third Circuit found a Pittsburg ordinance restricting access to public areas around abortion clinics unconstitutional.  More specifically, the court held the ordinance to be “insufficiently tailored” because it “burdens substantially more speech than necessary” to achieve the City’s stated interest: to prevent “harassment and obstruction of entrances” to hospitals and medical clinics.

The Pittsburg ordinance combined a “bubble zone” and a “buffer zone.”  The bubble zone extended 100 feet from the entrance of any hospital, medical office or clinic, including public sidewalks, and prohibited anyone from approaching another person within 8 feet without consent to pass a leaflet or handbill, display a sign or engage in oral protest.  The buffer zone essentially cordoned off a 15-foot zone from the entrance of a hospital or health care facility prohibiting anyone to congregate, patrol, picket or demonstrate.

The Court of Appeals found the zones to be constitutional when considered independent of each other, but when the ordinance combined both zones it overburdened protected speech.  It remanded the case for the City to decide which zone it preferred and directed the District Court to enjoin enforcement of the other zone.

In making its ruling, the Third Circuit relied on the Supreme Court’s decision involving a similar Colorado Statute, as well as, the First Circuit’s decisions involving bubble zone ordinances around Reproductive Health Care Facilities in Massachusetts.

In 2000, the Supreme Court upheld a similar 100-ft bubble zone in Colorado finding the statute a permissible content-neutral time, place and manner regulation. making it significantly easier for governments to simply forbid free speech in select public areas.  In doing so, the Court failed to call a spade a spade, or in this case a content-based regulation content-based.

Planned Parenthood and other abortion clinics have lobbied local and state governments to pass these “bubble zone” ordinances under the governments’ public safety interest.  Asserting an interest in safe access to “healthcare” (meaning safe access to abortions), these ordinances attempt to restrict the presence of pro-life advocates and all communicative efforts by them around abortion clinics.

These ordinances criminalize any discussion of abortion outside abortion clinics.  They prohibit peaceful demonstrations and they eliminate any effective means to discuss the harms of abortion at the location these harms occur.  In application, they prevent effective sidewalk counseling and significantly hinder the communication of abortion alternatives to women who need and want the information the most.  These laws permit only one viewpoint to reach women entering abortion clinics – the pro-abortion position and those enacting them know it.

Abortion advocates simply cannot win on the merits of their arguments, so they employ tactics to prohibit or restrict the expression of views opposing abortion.  And unfortunately, they are finding some success in pursuing these  “bubble zone” ordinances across the country and in the courts.

The courts have refused to see these ordinances for what they are – an attempt to silence opposing viewpoints and prohibit the expression of dissent to abortion. Until the courts are willing to recognize the content and viewpoint discrimination occurring through bubble zone ordinances, abortion advocates will continue to employ this new weapon of choice to unconstitutionally silence opposition to abortion.

Once again the law surrounding abortion seems to require special exceptions to protect the abortion industry from thoughtful and full debate of the harms it causes to women and their unborn children.