Preborn Rescue President Scott Mahurin
A federal appeals court has sided with a Florida anti-abortion sidewalk counseling group, finding that the city of Clearwater’s ordinance creating a buffer zone around a women’s health clinic driveway likely violates the group’s First Amendment rights.
The 11th Circuit Court of Appeals issued the decision on Dec. 4, overruling a district court’s ruling that denied Florida Preborn Rescue Inc. a preliminary injunction to stop enforcement of the city’s ordinance.
“... We hold that the plaintiffs are likely to succeed on the merits of their First Amendment challenge and that the district court therefore abused its discretion in denying the preliminary injunction on that ground,” the appeals court said. “We further hold that the remaining factors clearly counsel in favor of preliminary injunctive relief.”
Clearwater put the ordinance in place due to concerns that protesters and pedestrians at the Bread and Roses Woman’s Health Center had been getting too close to vehicles entering the clinic, posing safety risks as some individuals attempted to intimidate vehicle occupants. But the appeals court found that the resulting buffer zone, which extended across the 28-foot-wide driveway and five feet along the adjacent sidewalk areas, was excessive.
“We think it clear that the ordinance burdens substantially more speech – namely, the sidewalk counselors’ leafleting activities – than is necessary to achieve the government’s asserted interest in promoting vehicular safety,” the appeals court said.
Scott Mahurin, St. Petersburg-based Preborn Rescue’s president, said Clearwater’s ordinance was unconstitutional and discriminatory on its face.
“We definitely were very encouraged by the ruling," Mahurin told the Florida Record. “We knew if we got a fair hearing, we would end up winning the appeal."
He described Preborn Rescue as a peaceful, prayerful group whose members are, on average, in their 70s. The buffer zone made their efforts to engage in personal counseling with clinic patients and hand out literature much more difficult, according to the Dec. 3 court decision.
“... The controlling question is whether the challenged buffer zone … burdens substantially more speech than necessary to achieve the government’s asserted interests,” the appeals court ruling states. “We think it likely that Clearwater’s buffer zone does so.”
The court concluded Preborn Rescue had provided substantial proof that the city ordinance was not narrowly tailored and sent the case back to the district court with instructions to put the requested injunction in place. It also directed U.S. District Judge Mary Scriven to oversee proceedings to weigh the case based on its merits.
Mahurin said that although the group was grateful for the appeals court’s decision, the plaintiffs, including individual Preborn Rescue members, were still waiting to see what the city does next and whether the ordinance will soon be put on hold pending the resolution of the dispute.
“We’ll abide by the rules until it is taken down,” he said of the ordinance.
Clearwater’s arguments about the public safety issues that developed at the clinic site were based on testimony of police officers, videos of confrontations at the clinic and reports documenting police visits to the clinic.
The city also argued that the problem could not be solved with targeted trespass warnings or targeted misdemeanor arrests.
