• City’s Reproductive Health Clinics Ordinance Is Facially Constitutional But Is Unconstitutionally Enforced
  • September 1, 2011 | Author: Jeffrey L. Massey
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Hoye v. City of Oakland, (--- F.3d ----, C.A.9 (Cal.), July 28, 2011) the United States Court of Appeals for the Ninth Circuit considered the constitutionality of a city ordinance which makes it an offense to knowingly and willfully approach an individual seeking entry into a reproductive health clinic if the approach is for purposes of engaging in conversation, counseling, or protest. The court of appeals held the trial court properly found the ordinance to be facially constitutional but improperly found it to be constitutionally enforced.

    Walter Hoye (“Hoye”) often stands outside one of the City of Oakland’s (“City”) reproductive health clinics (“Clinic”) attempting to discourage women entering the Clinic from having an abortion. Because of the City’s concerns over disruptive anti-abortion protests outside such clinics, the City passed an ordinance creating a 100 foot “bubble” around its entrances. Within this bubble, the Ordinance makes it an offense to “willfully and knowingly approach within eight (8) feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of counseling, harassing, or interfering with such person or vehicle occupant.”

    Hoye was convicted of two violations of the Ordinance but those convictions were later dismissed. Hoye brought an action pursuant to 42 U.S.C. § 1983 against the City challenging the constitutionality of the Ordinance asserting it violates his First Amendment right to free speech under the United States Constitution. Hoye also argued it violated the Due Process Clause of the federal constitution and “the state and federal guarantees of equal protection of the laws.”

    Specifically, Hoye contends the City does not enforce the Ordinance equally “as it has a policy of not enforcing the Ordinance against volunteers who engage in pro-abortion speech outside” clinics. Escorts, who are volunteers, help patients entering clinics to “navigate their way into the building when anti-abortion protestors are present.” Hoye calls them “pro-abortion activists” because they tell the women to ignore him because he is only there to harass them and that his literature is inaccurate. He also states they block his sign with blank pieces of cardboard, prevent him from approaching women, and drown out his message by making noise. The district court granted the City’s motion for summary judgment on all claims.

    Because the City’s Ordinance was modeled on a similar Colorado statute that was constitutionally upheld by the United States Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000), that opinion controls most of the appellate court’s analysis. The Hill case led the court of appeals to conclude the Ordinance was a “facially valid restriction on the time, place, and manner of speech.” In other words, the court of appeals found that even though the Ordinance departed from the Colorado statute in some details, they were not significant enough to overcome the Ordinance’s facial constitutionality. The court of appeals thus affirmed the district court’s decision on this issue.

    However, because the Hill court did not concern the activities of escorts, there was no argument in that case regarding the enforcement of the ordinance only against anti-abortion speakers. In this case, the court of appeals found evidence establishing that the City “appears to have read into its Ordinance an exception for speech that facilitates access to reproductive health services and so has enforced the Ordinance against anti-abortion speakers but not pro-abortion speakers.” Because of this, the court of appeals held that the City’s enforcement policy of the Ordinance is a content-based regulation of speech and unconstitutional and reversed this portion of the district court’s ruling.

    The appellate court next addressed the question of “how to ensure that the rule enforced by the [City] is a content-neutral one, i.e. the rule that we believe the Ordinance actually pronounces, and not a content-discriminatory rule, i.e., the rule that the [City] erroneously enforces.” The court of appeals found that the district court is better equipped to address this question and thus directed the district court on remand to create a remedy ensuring the City will apply a policy that enforces the Ordinance as written and in a constitutional manner.

    Finally, the court of appeals found that it could not address Hoye’s third challenge as to whether the City can apply the Ordinance to situations “in which doing so would prevent him from communicating his message” because it would depend on the City’s future enforcement policy. The appellate court did, however, state it would not preclude Hoye from asserting such a challenge in the future.