The City of Harrisburg, Pennsylvania enacted a “buffer zone” ordinance that disallows an individual to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.” A group of plaintiffs, protesters and sidewalk counselors near abortion clinics, challenged the law on First Amendment grounds. Two weeks ago, a federal district court in Pennsylvania granted the city’s motion to dismiss several of the plaintiffs’ claims and denied a preliminary injunction to the plaintiffs.
Citing the 2014 Supreme Court case of McCullen v. Coakley, the court found that the city’s 20-foot buffer zone restriction was content neutral and therefore subject to intermediate scrutiny review. The court determined, however, that the city should be required to present evidence that the regulation in question was narrowly tailored to a significant governmental interest as required by the First Amendment. Accordingly, the court allowed the plaintiffs’ narrow tailoring claim to proceed. The court dismissed the plaintiff’s claims regarding vagueness, prior restraint, selective enforcement, and Free Exercise Clause claims. With respect to the plaintiff’s request for a preliminary injunction, the court found that the plaintiffs did not show how they might succeed on the merits of the case:
Although Defendants have not made a clear showing, at the preliminary injunction stage, it is Plaintiffs who have the burden of clearly establishing a probability of success on the merits. Based on the record before the court, Plaintiffs have failed to carry that burden.
We have reported on several buffer zone cases in recent months, as more plaintiffs challenge these common methods of protecting patients and employees at reproductive health care clinics. Given the higher evidentiary burdens placed on local governments following McCullen, it remains to be seen how many of these buffer zone laws will survive judicial scrutiny.