Oakland’s enforcement of a law intended to shield women entering abortion clinics from antiabortion “counselors” must be applied equally to clinic escorts to survive constitutional free speech mandates. The 9th U.S. Circuit Court of Appeals ruled the law has not been enforced evenly.
The unanimous three-judge decision comes from two of the most liberal members of the court, Judges Marsha Berzon and Stephen Reinhardt. The third judge is Louis Pollack, a visiting judge from Philadelphia.
An antiabortion minister, Walter Hoye, described himself as a “sidewalk counselor” who stands outside reproductive health clinics in Oakland in an attempt to dissuade women from seeking abortions. Oakland passed a “bubble ordinance” in 2007 out of concern for disruptive antiabortion protests outside clinics requiring protesters to remain 100-feet from the entrance of clinics. It also bars anyone approaching within eight feet of a person going into a clinic.
Hoye has been convicted twice of violating that prohibition and he sued saying the law was only enforced against protesters and not any proabortion speech outside clinics – meaning the escorts provided by the clinic to make sure women can enter.
Judge Berzon wrote in the 3-0 decision that Oakland “has enforced the ordinance against anti-abortion speakers but not pro-abortion speakers.”
That policy “unconstitutionally suppresses speech based on the content of its message.”
She said for public debate to be robust and free the “Constitution’s protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert.”
Hoye was represented by Michael Millen of Los Gatos. Greg Richardson, of Orrick, Herrington & Sutcliff in San Francisco, argued the appeal on behalf of Oakland.
Both pro and anti-abortion group weighed in with friend of the court briefs, including the conservative American Center for Law and Justice and a host of women’s rights groups from Connecticut, Maryland and the California Women’s Law Center, Black Women’s Health Project, Feminist Majority Foundation, Southwest Women’s Law Center and California National Organization for Women.
Case: Hoye v. City of Oakland, No. 09-16753