Court: Abortion “Bubble Laws” must apply equally to both sides

Walter Hoye, a minister and self-described “sidewalk counselor,” opposes abortion and seeks to convince women to eschew the procedure. After being convicted of two separate violations of the ordinance, he filed a federal complaint alleging violations of his free-speech and due-process rights.

While courts subsequently reversed Hoye’s two convictions on procedural grounds, U.S. District Judge Charles Breyer dismissed the minister’s civil rights complaint, finding that the Oakland’s ordinance is content-neutral and therefore constitutional.

A three-judge appellate panel sitting in San Francisco agreed, but only partly.

While the ordinance, modeled after a Colorado law upheld by the U.S. Supreme Court more than a decade ago in Hill v. Colorado, is constitutional, Oakland failed to enforce it properly, the 9th Circuit found.

The appellate judges cited the testimony of an Oakland police officer who said that the ordinance is generally applied “only to efforts to persuade women approaching reproductive health clinics not to receive abortions or other reproductive health services, and not to communications seeking to encourage entry into the clinic for the purpose of undergoing treatment.”

Hoye also alleged that the “escorts” often tell women not to listen to him or take his literature, and they attempt to block his message by putting up barriers and making noise, the ruling states.

“The city’s policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral,” Judge Marsha Berzon wrote for the unanimous panel. “It is the epitome of a content-based speech restriction.”

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