11th Circuit nixes protest buffer zone at Florida abortion clinic

ATLANTA (CN) — A divided panel of the 11th Circuit on Thursday sided with anti-abortion activists who say a Florida city’s vehicle safety ordinance created a protest-free zone at a women’s health clinic that violated their First Amendment rights.

In a 2-1 decision, the Atlanta-based appeals panel ordered a lower court to enter a preliminary injunction in favor of the pro-life nonprofit Florida Preborn Rescue and four of its “sidewalk counselors.” The order will block officials in the city of Clearwater, Florida, from enforcing an ordinance which created a five-foot “vehicular safety zone” around the driveway into the city’s only abortion clinic.

Writing on behalf of the majority, U.S. Circuit Judge Kevin Newsom ruled the ordinance “seriously burdens” Florida Preborn Rescue’s speech “by restricting the sidewalk counselors’ ability to distribute leaflets to patients as they arrive at the clinic.” The Donald Trump appointee wrote that the nonprofit is likely to succeed on the merits of its First Amendment challenge.

The Clearwater City Council passed the ordinance in 2023 in response to increasingly tense protests at the Bread and Roses Women’s Health Center after the U.S. Supreme Court overturned Roe v. Wade. The ordinance prohibits protesters from crossing the clinic’s driveway or the portion of sidewalk within five feet of the driveway.

The group had argued that the ordinance deprived them of opportunities to give women entering and exiting the clinic information discouraging them from seeking abortions. Florida law bans most abortions after six weeks of gestation.

U.S. District Judge Mary Scriven rejected the plaintiffs’ motion for a preliminary injunction to block the ordinance in 2023, ruling that it served the city’s interest in promoting vehicular safety and did not prevent the plaintiffs from engaging in free speech activities.

According to Scriven, protesters often rushed up to cars before the passage of the ordinance, holding signs up against the passengers’ and drivers’ windows as they exited or entered the driveway. Protesters also stood in the driveway, blocking traffic.

But Newsom found the ordinance “prohibits all ‘pedestrian[s]’ from ‘enter[ing]’ the buffer zone for any reason” and is not “narrowly tailored” to advance the government’s interest in the safety of pedestrians and drivers. Anyone violating the ordinance could have received a civil citation and a fine and could have been arrested for obstruction.

“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,” Newsom wrote.

The appeals court ruled that the city did not adequately consider alternative measures to address the safety risk, including enforcing Florida’s existing anti-obstruction law.

Newsom was joined in the majority by fellow Trump-appointed U.S. Circuit Judge Britt Grant.

U.S. Circuit Judge Nancy Abudu dissented from the majority in a nine-page opinion. The Joe Biden appointee expressed doubt that the ordinance seriously burdened the group’s rights.

“The buffer zone is only five feet and the adjacent sidewalk area and the remaining portions of the driveway remain available.  FPR counselors testified that their voices could carry the additional five feet to communicate with an individual inside the buffer zone,” Abudu wrote.

Abudu pointed out that city police officers testified to improvements in safety after the ordinance’s passage. Florida Preborn Rescue, meanwhile, has not proven it suffered “irreparable harm” due to the ordinance, the judge wrote.

“The record shows that counselors wait in brightly colored vests at the edge of the driveway, offering materials to patients driving into the clinic,” Abudu wrote. “If the patients desire, they can stop, roll down their window, and engage with the leafleteers. However, many choose not to do so.”

Scott Mahurin, president of Florida Preborn Rescue, applauded the decision Thursday, telling Courthouse News it will “help women and save lives.”

“We are very grateful that the 11th [Circuit] Court of Appeals saw through the city of Clearwater’s blatant, unconstitutional buffer zone law. The First Amendment clearly protects our rights to peaceful, pro-life speech and this includes being able to be seen and heard by people entering the abortion facility,” Mahurin said. “All we want to do is help women who are facing this life and death decision and give them life-affirming options.”

Attorney Tyler Brooks of Thomas More Society, who represents Florida Preborn Rescue, said, “Defending free speech is essential, including the speech of peaceful pro-life sidewalk counselors who reach out with kindness and compassion outside abortion facilities. Expectant mothers deserve the chance to hear about support, options, and hope at such a critical moment.”

An attorney for the city did not immediately respond to a request for comment Thursday afternoon.

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