A divided federal appeals court ruled Thursday that Clearwater’s buffer zone outside an abortion clinic violates the First Amendment, siding with abortion opponents who said the ordinance stifled their ability to distribute leaflets.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, ordered a district judge to issue a preliminary injunction to block the ordinance, which was approved in 2023 for an area outside Bread and Roses Woman’s Health Center.
Court rules 5-foot buffer zone unconstitutional
The ordinance barred pedestrians in a driveway entrance to the clinic and on five feet of sidewalk on each side of the driveway. Thursday’s 28-page majority opinion said that it prevented abortion opponents from giving leaflets to people entering the clinic in violation of the First Amendment.
The group Florida Preborn Rescue and four individual plaintiffs described as “sidewalk counselors” challenged the ordinance. The majority opinion, written by Judge Kevin Newsom and joined by Judge Britt Grant, said “Florida Preborn has provided uncontradicted testimony that the buffer zone has effectively stifled sidewalk counselors’ ability to distribute literature to patients entering and exiting the clinic.”
Activists say ordinance stifled free speech
“We think it clear that the ordinance burdens substantially more speech — namely, the sidewalk counselors’ leafletting activities — than is necessary to achieve the government’s asserted interest in promoting vehicular safety,” the opinion said.
Dissent highlights safety concerns for clinic visitors
But in a dissenting opinion, Judge Nancy Abudu wrote that it was undisputed that the city has an interest in providing safe and unobstructed access in the driveway for vehicles and that the ordinance “created a mere five-foot buffer zone (on each side of the driveway) between leafleteers and patients seeking reproductive care in response to law enforcement’s repeated requests for more effective policing in the area.”
“As for the size of the buffer zone, it is difficult to even visualize how a distance of five feet seriously burdens FPR’s (Florida Preborn Rescue’s) ability to leaflet and otherwise communicate with those entering the clinic,” Abudu wrote. “Importantly, there is sufficient breathing room to try to win a driver’s attention, even if cars continue their route without engaging FPR volunteers. The record shows that counselors wait in brightly colored vests at the edge of the driveway, offering materials to patients driving into the clinic. If the patients desire, they can stop, roll down their window, and engage with the leafleteers. However, many choose not to do so. Thus, when balancing FPR’s right to communicate its message against the rights of patients and others not to engage, it is clear that there is no substantial burden on FPR’s ability to leaflet.”
The majority opinion, which relied heavily on a 2014 U.S. Supreme Court precedent in a Massachusetts buffer-zone case, overturned a decision by a district judge who rejected a preliminary injunction. The opinion sent the case back to the lower court and directed that it enter an injunction.
