Challenge to buffer zones around Pittsburgh's abortion clinics may proceed, holds Third Circuit

Bruni v. City of Pittsburgh, No. 15-1755 (3d Cir. June 1, 2015).

Protester stands directly in front of door to Planned Parenthood clinic in Washington, D.C. (Credit: flickr / American Life League.)

Protester stands directly in front of door to Planned Parenthood clinic in Washington, D.C. (Credit: flickr / American Life League.)

Pittsburgh forbids people from “congregating, patrolling, picketing, or demonstrating” within 15 feet of health care facilities. This law is meant to create a 15-foot buffer zone around abortion clinics. The Pittsburgh City Council enacted the law to ensure that patients have “unimpeded access to medical services” and to prevent the kind of confrontations that had required the Pittsburgh Police to intervene more than once in the past. 

A First Amendment challenge to that law—dismissed by the district court under Rule 12(b)(6)—has now reached the Third Circuit. The Third Circuit must decide this case in the shadow of McCullen v. Coakley, which two years ago invalidated a similar but more restrictive Massachusetts law. 

The Massachusetts law created a 35-foot buffer, but the majority opinion here thinks that Pittsburgh’s 15-foot buffer still significantly burdens the plaintiffs’ anti-abortion speech. The question then becomes whether a less restrictive buffer zone would still keep the peace and give patients safe passage. It is the City’s burden to prove that a less restrictive zone would not further these ends. The majority remands the case for factual development, after which the City will have an opportunity to try to carry its burden. In reaching this conclusion, the majority overrules Brown v. City of Pittsburgh, an earlier Third Circuit opinion. There, the Third Circuit had struck down Pittsburgh’s combination of a 15-foot buffer and an 8-foot “bubble” around everyone that approached a clinic, but it had upheld the 15-foot buffer on its own. 

Judge Fuentes concurs in the judgment only, believing that the majority’s reasoning puts too onerous a burden of proof on the City of Pittsburgh.