Appeals court overturns Florida city's buffer zone ordinance

A federal appeals court ruled Thursday that a lower court must place an injunction on an abortion facility buffer zone law in Clearwater, Florida. The ruling reinstates the ability of pro-life activists and sidewalk counselors to minister to and distribute pamphlets to clients entering the facility.

Key Takeaways:

• The 11th Circuit Court of Appeals determined this week that a buffer zone ordinance in Clearwater, Florida, violates the First Amendment rights of pro-lifers who minister outside a city abortion facility.

• Per the court's ruling, a lower court must place an injunction on the ordinance.

• The ruling allows pro-life sidewalk counselors to resume their practice of offering alternatives and help to abortion-minded women outside of the facility.

The Backstory:

In 2023, the Clearwater City Council passed an ordinance creating a "vehicular safety zone," by banning all pedestrians — exempting emergency services personnel and facility staff escorting women — from crossing within five feet of the driveway of the Bread and Roses Women's Health Center, which is the only abortion facility in the city.

Following the ordinance's passage, the pro-life group Florida Preborn Rescue and four individuals challenged the ordinance. The plaintiffs were represented by the Thomas More Society (TMS).

“This buffer zone is clearly discriminatory and meant to stifle pro-life speech,” Tyler Brooks, TMS Senior Counsel, explained in 2023. “It was instituted by the Clearwater city council for the express purpose of limiting the speech and activities of life advocates taking place outside of the deceptively genteel looking Bread and Roses abortion facility.”

In October 2023, U.S. District Judge Mary Scriven rejected a request from the plaintiffs to place a preliminary injunction on the ordinance, ruling that it was in the city's interest to protect vehicular safety. TMS then appealed that ruling.

The Details:

In a 2-1 decision, the 11th Circuit Court of Appeals disagreed with Scriven's ruling, stating that the ordinance violates the plaintiffs' First Amendment right to free speech. The appeals court ruling returns the case to the lower court, which must place an injunction on the ordinance.

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“The Ordinance seriously burdens Florida Preborn’s speech … by restricting the sidewalk counselors’ ability to distribute leaflets to patients as they arrive at the clinic,” the majority opinion, issued by Judges Kevin Newsom and Britt Grant, read. 

“The controlling question is whether the challenged buffer zone — be it five, 10, or 35 feet — burdens substantially more speech than necessary to achieve the government’s asserted interests,” it continued. “We think it likely that Clearwater’s buffer zone does so.”

Scott Mahurin, president of Florida Preborn Rescue, welcomed the court's ruling.

“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,” he told Courthouse News. “All we want to do is help women who are facing this life and death decision and give them life-affirming options.”

The Bottom Line:

TMS Senior Counsel Tyler Brooks said the ruling is a victory for free speech rights.

"This ruling is a resounding win for free speech and the voiceless preborn," Brooks stated in a press release. "Our clients simply seek to exercise their constitutional right to share resources and abortion alternatives peacefully with abortion-vulnerable women. The court rightly affirmed that a city cannot use dubious, manufactured pretexts to silence speech it doesn’t like.”