Liberty Counsel filed a petition for cert asking the U.S. Supreme Court to review Reilly v. City of Harrisburg considering the Third Circuit Court of Appeals’ recent decision regarding the city’s ordinance that was enforced to prohibit pro-life volunteers from one-on-one counseling near a Planned Parenthood abortion facility.
In 2012, the Harrisburg City Council passed an ordinance to curtail any interference with abortion facilities called “Interference with Access to Health Care Facilities.” The Third Circuit stated that the ordinance makes it illegal to enter the buffer zone and have a one-on-one conversation about abortion with a person entering the abortion facility.
Liberty Counsel represents Colleen Reilly and Becky Biter, who engage in peaceful sidewalk counseling to encourage women to protect the life of their unborn children. The City of Harrisburg enforced the ordinance silencing Reilly and Biter on more than 70 feet of public sidewalk in front of the Harrisburg Planned Parenthood preventing them from quiet one-on-one conversations, peaceful sidewalk counseling, prayer, and distributing life-affirming literature.
Reilly and Biter did not begin counseling at the abortion facility until 2014, so they were not among the handful of “protestors” that led to the ordinance’s enactment. However, Harrisburg police enforced the ordinance and ordered Reilly to move her sidewalk counseling beyond the buffer zone. While Reilly was “handing out literature and talking to clients coming into the office,” the police told her that her counseling was violating the ordinance, and “gave her a warning that she would be cited if she violates the ordinance in the future.” Since Reilly’s encounter with the police, she and Biter have refrained from sidewalk counseling for fear of criminal prosecution under the ordinance.
During the litigation, the city presented two people to speak on its behalf regarding the interpretation, application, and enforcement of the ordinance – referred to as Rule 30(b)(6) witnesses. Both of the city’s 30(b)(6) witnesses testified that the ordinance prohibits pro-life speech regarding abortion inside the buffer zone, but other speech not about abortion is permitted. In addition, during a prior oral argument before the Third Circuit, the city’s attorney stated that passing out literature inside the buffer zone about the abortion clinic is prohibited but passing out literature about a law firm is permitted. There is no contradictory testimony in nearly 10 years of litigation about the interpretation, application, and enforcement of the ordinance being a content-based restriction on pro-life speech. Yet, the court wrote in its opinion that these enforcers who speak on behalf of the city “misinterpreted” their own ordinance.
The Third Circuit acknowledged that “other Courts of Appeals take a contrary approach” under the constitutional avoidance doctrine when providing a narrow interpretation of a state law. The Third Circuit exacerbated a circuit split regarding the power of federal courts to rewrite a state statute or local ordinance since the Fifth, Sixth, and Eighth Circuits hold that federal courts lack authority to do so in the absence of a narrowing state court interpretation.
Liberty Counsel is also asking the High Court to overrule Hill v. Colorado, a decision released by the Supreme Court in 2000. This case held that a statute prohibiting “oral protest, education, or counseling” with individuals attempting to enter a health care facility was content-neutral, despite the fact that police officers had to review the content of the speech to determine if it was covered by the law. The Third Circuit’s practice of relying on Hill to categorize buffer-zone laws as content-neutral speech restrictions distorts the First Amendment. The High Court’s subsequent decisions in McCullen v. Coakley and Reed v. Town of Gilbert found that laws restricting speech based on its function or purpose are content restrictions, “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”
The Third Circuit’s reliance on Hill is erroneous and the Supreme Court should officially overturn Hill.
Liberty Counsel Founder and Chairman Mat Staver said, “The City of Harrisburg clearly violated the First Amendment by enforcing a policy that prohibits pro-life speech but allows other speech within the buffer zone. There is no contradictory testimony in nearly 10 years of litigation about the interpretation, application, and enforcement of the ordinance being a content-based restriction on pro-life speech. However, the Third Circuit’s decision brushes off the undisputed testimony by saying these enforcers who speak on behalf of the city ‘misinterpreted’ their own ordinance. Now the Third Circuit has created a split in the courts that the High Court must resolve. Until the Supreme Court overrules Hill v. Colorado, lower courts will continue to distort the First Amendment.”
