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Abortion Clinic Buffer Zone Ruled Unconstitutional

By Jay Rogers
Published November 1, 1993

Federal court decides in favor of pro-lifers

MELBOURNE, Florida (FR) – In a major victory for pro-life activists, a federal appeals court ruled that a court ordered injunction against pro-lifers at a Melbourne abortion clinic infringed on freedom of speech. The court said that the order issued by Circuit Judge Robert McGregor should be lifted. In April, McGregor created a buffer zone around the Aware Woman abortion clinic in Melbourne that kept pro-life demonstrators from getting too close. About 150 pro-lifers were arrested earlier this year for violating the court order. (The Forerunner April/May 1993, “Christians Are Arrested For Praying.”)

The federal court noted that Judge McGregor created a criminal statue prohibiting “pro-life free speech activity in a certain geographical location.” Because the injunction contained “viewpoint specific” discrimination (i.e., it prohibited only pro-life free speech) it was deemed unconstitutional. This decision has monumental importance in the legal war over abortion and will be used as a precedent in arguing similar cases all over the country.

The appeal was won by Matthew D. Staver, attorney and president of the Liberty Counsel. Staver’s case was argued on behalf of Myrna Cheffer, an Orlando area pro-life activist. Cheffer was not among the 150 pro-life individuals who were arrested for entering the buffer zone. Nevertheless, she filed this suit in federal district court seeking to prohibit enforcement of the state court injunction. Cheffer claimed that the injunction acted as a prior restraint on her free speech rights and that the threat of arrest chilled her ability to exercise these rights. The federal appeals court ruled in favor of Cheffer and handed the order back down to the district court recommending that it be repealed.

According to Staver: “It’s a landmark decision. This particular order is one of the strongest of its kind as it relates to abortion picketing and free speech. It specifically indicates that this injunction is viewpoint oriented, content specific and it violates free speech. It is also significant as it relates to the buffer zone legislation that was going to be before the Florida legislature next week placing 50-foot buffer zones around abortion clinics and the Freedom of Access to Clinic Entrances bill on the federal level. This decision will clearly allow suits against those type of buffer zone restrictions. This particular injunction goes way beyond trying to restrict trespass or things of that nature. It restricts picketing that occurs within a traditional sidewalk, highway, residential area.

“We now have a conflict in the 11th Circuit Court of Appeals on the federal level and the Florida Supreme Court in their interpretation. That will be very strong basis on which the United States Supreme Court could accept this case on the appeal. In the meantime, we will ask the federal court to block the continued enforcement of this injunction. I would also caution the city of Melbourne Police Department from making arrests of people while they are within that 36-foot buffer zone because I think they tread a very thine line upon which they could be sued under this federal court ruling for deprivation of individual civil rights.”

The following are excerpts from Chief Judge Gerald Tjoflat’s decision: “Perhaps few Americans are content with the current legal status of abortion in America. Many see a woman’s ability to choose abortion as a part of her fundamental constitutional right to self-determination that is ill-protected by wavering jurisprudence by the Supreme Court. Many others see the 1.4 million abortions each year as an American Holocaust permitted by the moral vacillation of the government. This case arises out of the clash of these opposing beliefs, and governmental attempts to restrict their free expression.

“On April 8, 1993, Judge McGregor issued an Amended Permanent Injunction in which he enjoined certain activities of Operation Rescue and others in a court-drawn ‘buffer zone’ surrounding the abortion clinic…. On its face, the injunction appears to ‘criminalize’ various acts of peaceful protest, including the mere penetration of the buffer zone by anyone acting ‘in concert’ with those named in the injunction … The local police understood the injunction to require them to arrest ‘pro-life’ individuals who violated the buffer zone.

“An injunction is an extraordinary remedy that operates only on the parties before the court. Legislation operates more broadly, extending to all actors within the legislature’s jurisdiction. Nevertheless, when Judge McGregor issued the Amended Permanent Injunction in the state case, he, in effect, created a criminal statute prohibiting ‘pro-life’ free speech in a certain geographical location. But by extending the injunction to nonparties and by attaching criminal penalties otherwise protected by the Constitution, Judge McGregor crafted a law…. We refuse to prefer form over substance; the injunction has all the attributes of a criminal statute and we will treat it accordingly….

“That free speech restrictions at issue here are viewpoint-based cannot be seriously doubted. Such a restriction is no more viewpoint-neutral than one restricting the speech of ‘the Republican Party, the state Republican Party, George Bush, Bob Dole, Jack Kemp and all persons acting in concert with them or on their behalf.’ The practical effect of this section of the injunction was to assure that while ‘pro-life’ speakers would be arrested, ‘pro-choice’ demonstrators would not. A viewpoint-specific restriction in a traditional public forum is unconstitutional….

“The Supreme Court has noted that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ This is apparently precisely what occurred. Several of those arrested testified that they were designated for arrest by clinic workers and police officers because they were perceived to be ‘pro-life.’ Judge McGregor accepted this interpretation of the intent of the injunction and explained (to the arrestees): ‘[T]he injunction did not pertain to those on the other side of the issue, because the word “in concert with” means in concert with those who had taken a certain position in respect to the clinic, adverse to the clinic. If you are saying that is the selective basis that the pro-choice were not arrested when pro-life was arrested, that’s the basis of the selection….’

“It is tempting, of course, to entertain the argument that the speech in this case is disruptive, discourteous, and offensive, but that is irrelevant…. We protect much that offends in the name of free speech – we cannot refuse such protection to those who find abortion morally reprehensible. The district court treated the state court injunction as an ordinary injunction when it had the effect of a criminal statute. Consequently, the order of the district court was founded on a mistake of law. We vacate the order, and remand for further consideration of the issuance of a preliminary injunction in light of this opinion.


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