Speech by Sidewalk Counselors and Clinic “Escorts” Must be Treated the Same
Walter Hoye, a California pastor and sidewalk counselor, filed a federal constitutional challenge to the City of Oakland’s “Mother May I” ordinance restricting speech outside abortion clinics after having been arrested twice for approaching women seeking to enter abortion clinics. The case is Hoye v. Oakland. Evidence in the case established the Pastor Hoye attempted to approach the women “to have a personal, one-on-one conversation with each woman concerning her individual situation and what is causing her to consider abortion.” He often held a sign proclaiming, “Jesus loves you and your baby. Let us help.” The court accepted as true the pastor’s testimony that he “never called a woman a baby killer or murderer or told her she would rot in hell, or expressed any judgment like that.”
Notwithstanding his peaceful approaches, Pastor Hoyt was convicted twice for violating the “Mother May I” or “bubble zone” ordinance that prohibited “knowingly and willfully approaching within eight feet of an individual seeking entry to an abortion clinic if one’s purpose in approaching that person is to engage in conversation, protest, counseling, or various other forms of speech.” Both criminal convictions were eventually overturned on procedural points, but Pastor Hoye continued to challenge the law he had been arrested under. He lost in the federal trial court. You can read that opinion here. Pastor Hoye appealed to the Court of Appeals for the Ninth Circuit.
A unanimous Ninth Circuit panel (including liberal judges Marsha S. Berzon and Stephen Reinhardt) ruled that the language of the Oakland ordinance was content-neutral applying equally to anyone approaching a woman seeking to enter an abortion clinic, and therefore constitutional on its face. However, the court went on to say that the statute, as it was being applied by city officials and law enforcement, was unconstitutional since evidence established that the City of Oakland and its police enforced the ordinance only to efforts by sidewalk counselors seeking to persuade women not to receive abortions, and not to clinic escorts or others seeking to encourage entry into the clinic for the purpose of obtaining an abortion. The Ninth Circuit Opinion can be found here.