Florida pro-life ministry fights for speech rights

In Clearwater, Fla., women enter the city’s only abortion facility through a driveway and are escorted inside by a staff member. Pro-life counselors who want to talk with the women must approach entering vehicles, make eye contact with the drivers, and attempt to engage in quiet, heartfelt conversations.

But a local ordinance passed in March 2023 prevented anyone, outside of law enforcement and facility escorts, from being within five feet of the driveway. Last week, a three-judge panel of the 11th U.S. Circuit Court of Appeals heard arguments from Florida Preborn Rescue, a pro-life group, about why the ordinance violates the First Amendment rights of its members.

The ministry, which is headquartered in Pinellas Park, Fla., conducts “sidewalk counseling” with women outside of abortion facilities across the state. Counselors typically provide the women with prayer, pamphlets, and information on other life-affirming alternatives. In Clearwater, counselors served women outside of Bread and Roses Women’s Health Center, until the city created the buffer zone around the driveway.

The city claimed the efforts were a safety measure because protesters had obstructed the driveway, forcing police to spend extra time at the facility to the detriment of other law enforcement needs in the area.

In June 2023, Preborn Rescue filed a lawsuit against the city, stating that sidewalk counseling is constitutionally protected speech and that its counselors had only peacefully engaged with the vehicles.

Additionally, the suit asserts the ordinance has been applied unevenly against pro-life views. The rescue group provided photographic evidence of police allowing pro-abortion activists alongside cars in the driveway.

“The ordinance is at odds with the purported justifications for its enactment, and its provisions in fact undermine its claimed purposes,” the lawsuit stated. “The ordinance was enacted by the city with constitutionally invidious motives.”

In October 2023, a district court rejected Preborn Rescue’s request that it temporarily block enforcement of the ordinance. U.S. District Judge Mary Scriven found that the city’s ordinance was narrowly tailored for public safety and did not impose on free speech rights.

Preborn Rescue appealed this decision to the 11th Circuit that same month.

In Tuesday’s oral arguments, Tyler Brooks, an attorney with Thomas More Society, which represents Preborn Rescue, told the judges that the pro-life ministry had operated peacefully at the abortion facility.

Brooks pointed out that counselors only ministered at the location on Tuesdays and Thursdays and that any potential safety concerns stemmed from crowds of protesters not affiliated with Preborn Rescue who typically gather at the facility on Saturday.

“All we want to do is be able to approach people in a calm and caring manner and let them see our expression, let them see our nonverbal cues, let them know we’re here to help them,” Brooks said.

“Every single woman who chooses to go to this clinic, we have a very special message for her, which is that she is special, she is cared about, we have resources for her, and we would like to help her not make her feel judged, put upon or anything of the like,” he told the judges.

Representing the city of Clearwater, attorney Luke Lirot claimed that the city’s ordinance “leaves ample alternative avenues of communication” for the ministry.

He also said the ordinance was created to promote public safety because people were impeding cars.

Judge Britt Grant asked Lirot why pro-abortion activists had been allowed close to the cars after the ordinance was passed.

Judge Nancy Abudu added that the city’s arguments seemed “prophylactic as opposed to reactive” because Preborn Rescue was not responsible for impeding any cars.

“It almost seems that they are getting punished for other bad apples,” she said. “There’s no evidence that these plaintiffs have engaged in inappropriate or unlawful behavior, [so] there are no other alternatives that the city could have constructed to account for that?”

Lirot replied that a “long history of tragedy and accidents” supported the ordinance.

In Brooks’ brief rebuttal remarks, he told judges the driveway buffer zone significantly alters the messages of Preborn Rescue’s counselors.

“There’s no ability to make eye contact,” Brooks said. “If we’re going to communicate we have to turn into the yellers, we have to turn into people that have signs and that makes us look like protesters, and that fundamentally transforms our message.”

Reflecting on the oral arguments, Brooks told WORLD that the 11th Circuit judges could rule in multiple ways. They could change the scope of the ordinance to affect only certain days or they could remove it entirely.

Even if the 11th Circuit rules against the ministry, it can still work to establish additional facts to gain a favorable ruling later on from the district court. “We are in for a long battle one way or another,” Brooks said.

Sidewalk counseling at abortion facilities across the country has faced challenges since 2000 when the Supreme Court upheld a buffer zone law as constitutional in Hill v. Colorado.

In Hill, the high court ruled that abortion center buffer zones are legal because they engage in neutral speech restriction. Some First Amendment experts contend this is not the case—typically only pro-life activities are outside of abortion centers.

Additionally, in the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, judges identified Hill as the primary example of how the court’s abortion precedents have “distorted First Amendment doctrines.”

While Preborn Rescue isn’t arguing against Hill at this preliminary stage of the case, it might do so later. Clearwater’s clear preferences for pro-abortion activities “illustrates a lot of the absurdities of Hill,” Brooks said.

Thomas More Society is asking the Supreme Court to overrule Hill in another case involving a Carbondale, Ill., buffer zone. In June, the sidewalk counseling organization Coalition Life appealed to the Supreme Court to overturn a “bubble zone” law that restricts speech within a 100-foot area around abortion centers.

Additionally, a sidewalk counselor in Englewood, N.J., also asked the Supreme Court in April to overturn its decision in Hill.

The court has yet to announce whether it will take up either of these cases.

Governments don’t understand the difference between sidewalk counseling and protesting, Brooks said. They don’t appreciate that sidewalk counseling is a protected right.

“It’s a real challenge we are up against,” Brooks said. “[Sidewalk counseling]

is not obstruction, is not harassment … [it is] First Amendment protected activity.”