California speech law ensnares pro-lifers

John Gerardi, the director of Fresno-based Right to Life of Central California, knows the value of loving conversations with women considering an abortion. He and a team of volunteers at the ministry’s Outreach Center offer alternatives and healthcare support to women entering Planned Parenthood’s main Fresno abortion center right next door.

But a new California law aimed at an entirely different issue is now threatening that work.

California Gov. Gavin Newsom signed Senate Bill 742 into law on Oct. 8. The legislation ostensibly aims to protect people seeking COVID-19 vaccines from harassment by barring certain free-speech activities when a speaker is within 30 feet of someone “in a public way or on a sidewalk area” and “within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site.”

But it has the unintended consequence of barring Gerardi and volunteer sidewalk counselors, even on the ministry’s own property, from speaking to women entering the neighboring abortion facility. Planned Parenthood Fresno administers a vaccine for human papillomavirus (HPV), though not for COVID-19. The law carries a $1,000 fine for each violation and up to six months’ imprisonment.

Alliance Defending Freedom attorneys representing Right to Life filed a complaint in federal court on Wednesday arguing the broad ban violates the First Amendment guarantees of free speech and religious freedom. Attorneys argue that since Right to Life’s Outreach Center is immediately adjacent to Planned Parenthood, the speech ban will preclude counselors from having conversations with women passing the entrance to the ministry while on the public sidewalk.

Three pro-life activists affiliated with the California-based Life Legal Defense Foundation also filed a federal suit against the law on Oct. 10. The court is set to hear a motion to temporarily block the measure on Oct. 27.  Life Legal’s Katie Short called the law “an unheard-of restriction on core First Amendment activities.”

So-called “bubble zone” laws have a checkered history in court. In 2000, the Supreme Court upheld a Colorado law that imposed an 8-foot buffer around abortion facilities, noting that it “allows the speaker to communicate at a ‘normal conversational distance.’” But in 2014, the justices struck down a 35-foot buffer around abortion centers in Massachusetts, concluding that “if all that women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

Lower courts continue to wrestle with zones banning speech outside abortion centers. In separate rulings in October 2019, a federal appeals court upheld a 15-foot buffer in Pittsburgh and 20-foot buffer in Harrisburg, Pa. But they reasoned the zones did not apply to sidewalk counselors who engage in “peaceful one-on-one conversations on any topic or conducted for any purpose at a normal conversational volume or distance.”

Denise Harle with Alliance Defending Freedom said that even though the law tries to address anti-vaccination protesters, it takes far too broad an approach: “What we have here is the government using a public health crisis to suppress speech it doesn’t like.”