On June 26, federal District Court Judge Charles Breyer heard arguments on the constitutionality of a “Mother May I” law enacted by the city of Oakland, California, in response to the peaceful sidewalk counseling activity of Rev. Walter Hoye. The city ordinance prohibits approaching without consent within 8 feet of any person seeking to enter an abortion clinic, for the purpose of leafleting or engaging in “protest, education, or counseling” of that person.
On first hearing the law described, many people think that getting it declared unconstitutional would be simple. That’s undoubtedly what the attorneys who challenged Colorado’s “Mother May I” law thought when they brought their challenge to a similar law over ten years ago.
In 1993, Colorado passed a law prohibiting unconsented approaches within 8 feet of any person within 100 feet of the entrance to any medical facility in the state, where such approaches were made for the purpose of “protest, education, counseling, handing a leaflet or displaying a sign.” The law was challenged by sidewalk counselors and eventually ended up before the United States Supreme Court, as Hill v. Colorado, 530 U.S. 703 (2000).
In Hill, the Supreme Court ruled 6–3 that Colorado’s law was a valid, content-neutral, narrowly-tailored restriction on speech. The Court ran roughshod over the plaintiffs’ arguments that the law was content-based and unfairly prevented them from reaching their intended audience. Indeed, the Court went so far as to hypothesize that the law might actually enhance the ability of sidewalk counselors to communicate with women considering abortion. (See “Another Casualty of Our ‘Whatever-It-Takes Proabortion Jurisprudence’,” Lifeline, Vol. X, No. 2 (Fall 2000).)
Thus, in challenging Oakland’s Ordinance, Rev. Hoye and his attorneys (LLDF Legal Director Katie Short and LLDF-affiliated attorney Michael Millen) began not at the 50-yard line, but all the way back in their own end zone, fighting to make up the ground lost in the Hill decision and move the ball the entire length of the field. Fortunately, they got some help from an unexpected quarter: the City itself. Not content with simply putting in place the same statute that was upheld in Hill, the pro-abortion ideologues at City Hall overreached time and time again to ensure that only pro-life speech would be muzzled. Rev. Hoye’s motion for summary judgment, raising both facial and as-applied challenges, pointed to several factors illustrating the content- and viewpoint-based nature of the Ordinance. First, unlike the Colorado statute at issue in Hill, which applied to all medical facilities, the Ordinance applies only to speech outside abortion clinics. Under the Ordinance, only those facilities that provide or counsel on abortion are covered.
Second, under the City’s enforcement policy, as revealed in the deposition of a captain in the Oakland Police Department, proabortion activist-escorts are immune from the Ordinance whenever they are “facilitating” access to the clinic. In the course of “facilitating access,” they can tell women not to listen to Mr. Hoye, not to take his literature because it is misleading and only intended to harm them, and that the women have a right to have an abortion.
The motion also argued that, combined with the physical interference of the escorts— whose activities are explicitly sanctioned by the City—the Ordinance completely precludes Rev. Hoye from communicating his message to his target audience. The Ordinance prohibits him from approaching without consent, yet the pro-abortion activists’ noise and blocking preclude him from either getting consent to approach or being able to communicate from eight or more feet away. Thus, as applied to the conditions present at the clinic, the Ordinance operates to preclude effective communication. The City also interprets the Ordinance to prohibit more speech than was banned in Hill, and indeed, more speech than is banned on the face of the Ordinance itself. For example, under the City’s enforcement policy, the Ordinance prohibits taking up a stationary position near the path of oncoming pedestrians and extending a hand to proffer literature. It also prohibits approaching proabortion activists who are escorting patients without the activists’ consent, even if the intent is solely to communicate with the patient. Thus, the activists can create a bigger “bubble” around patients, and even veto the approach of a consenting patient.
For these and other reasons, Rev. Hoye’s attorneys argued, the Ordinance is unconstitutional and the City should be enjoined from enforcing it.
Arguing for the constitutionality of the Ordinance, the City claimed that the Ordinance was necessitated by decades of “harassment” and violence by prolife advocates. In a transparent attempt to prejudice the court, the City recounted tales of shootings, threats, and vandalism—none of which had the slightest bearing on the issue of whether an 8-foot no-approach zone is necessary.
Armed with declarations from abortion clinic personnel, the City also claimed that protesters had been taunting, yelling at, intimidating, and blocking patients. However, despite the fact that the clinic personnel stated that they have been carefully documenting this disruptive activity for years, there was not a single photograph to corroborate these accusations. Rather, all the photographs attached as exhibits showed protesters merely standing holding signs, offering literature, even simply kneeling in prayer on the sidewalk.
Although the City tried to conjure up phantom protesters wreaking havoc outside abortion clinics, even some of its own witnesses admitted that the only “protesters” for the past few years have been Rev. Hoye and his octogenarian companions. As to the activity of the pro-abortion “escorts”, the City first claimed that these activists were not violating the Ordinance because they were not “advocating” a position on abortion.
According to the City’s definition, Rev. Hoye saying, “Can I talk to you about alternatives to the clinic?” is a violation because that is advocacy, but pro-abortion escorts saying, “Don’t listen to him; you have a right to an abortion,” is not advocacy.
When Rev. Hoye’s opposition papers pointed out the discrepancy between the City’s claims of a “no advocacy by escorts” rule and the undisputed evidence that such advocacy was a regular occurrence, the City shifted position. It claimed that this speech was permitted because the activists were not approaching “for the purpose of” engaging in such speech. Because the speech was only “incidental” to their function of “facilitating access” and getting patients into the clinic “safely,” such speech did not violate the Ordinance.
However, the Ninth Circuit had clearly stated (ironically, in another case involving restrictions on pro-life speech), that such a distinction between purposeful and incidental speech “turns the First Amendment on its head.” A city can have no legitimate interest in suppressing intentional communication while allowing the same communication to take place if it is merely incidental to another activity.
At the June 26 hearing on the motion, Judge Breyer was initially very dismissive of Rev. Hoye’s facial challenge to the Ordinance and wanted to immediately move to the as-applied challenge. However, Millen and Short argued that the facial challenge was more important than ever in light of the City’s admissions, both in discovery and in its own briefs, that it interpreted the Ordinance to exclude statements—any statements—by the pro-abortion “escorts.” The City had elevated the viewpoint-neutrality issue beyond the question of practical enforcement to the pure interpretation of its own Ordinance, an issue which spelled the demise of the Ordinance on its face under applicable Supreme Court and Ninth Circuit precedent. Judge Breyer conceded that he had not considered the matter in that light, and would have to reconsider the issue.
Judge Breyer then asked what evidence there was that the “escorts” were actually engaging in “advocacy.” (Judge Breyer made clear that he did not consider anything short of “advocacy” by escorts to violate the ordinance. Thus, escorts are free to approach women and say, “May I help you into the clinic?” but Rev. Hoye is prohibited from approaching and saying, “May I help you find alternatives to the clinic?” In Judge Breyer’s view, this was a permissible distinction.) Katie Short pointed to testimony from the escort coordinator Barbara Hoke in which she clearly stated that she instructs escorts to tell women that the literature is “inaccurate,” “invasive of their privacy,” etc. Apparently troubled (and somewhat surprised) by this, Judge Breyer asked the attorney for the City to explain the City’s position. The attorney attempted to justify allowing the escorts greater leeway in what they said in order to make women feel “safe” entering the clinic, but the judge did not appear to agree with the City’s reasoning.
In wrapping up their argument, one attorney for the City warned the judge that striking down the law might lead to people being hurt or killed at the clinic, an overblown assertion that apparently left Judge Breyer unmoved. He took the matter under submission, and as this issue went to the printer, had not yet issued any ruling.
In a transparent attempt to prejudice the court, the City recounted tales of shootings, threats, and vandalism—none of which had the slightest bearing on the issue of whether an 8-foot no-approach zone is necessary.