While declining to strike down the rules as
unconstitutional, a federal judge will allow a group of pro-life activists to
press ahead with a challenge asserting the city of Chicago has unfairly and improperly
enforced its ordinance creating a “bubble zone” around abortion clinics in
which activists are forbidden from interacting with women entering the clinics.
On Jan. 4, U.S. District Judge Amy J. St. Eve sided, in
part, with the anti-abortion activists, refusing to dismiss the complaint outright,
as requested by Chicago city lawyers.
St. Eve said she believed the plaintiff activists had
established Chicago Police had engaged in, at best, a pattern of “deliberate
indifference” in enforcing the ordinance, favoring pro-choice activists and, in
the process, potentially trampling the rights of the pro-life activists outside
“The complaint sufficiently alleges a pattern of conduct
that indicates a widespread custom or practice of discriminatory enforcement of
the Ordinance, deliberate indifference to the widespread unconstitutional
enforcement of the Ordinance, or a training policy that is ‘so inadequate that
it amounts to a ‘policy’ of ‘deliberate indifference to the rights of persons
with whom the police come into contact,’” St. Eve wrote in her opinion and
The judge, however, said plaintiffs fell short in asking the
court to strike the ordinance down as unconstitutional, saying she believed a
2000 decision from the U.S. Supreme Court in Hill v. Colorado addressing such buffer zones and speech
restrictions still held sway, despite assertions from the pro-life activists
that two other more recent Supreme Court decisions striking down other buffer
zone laws elsewhere had overruled the prior decision relied upon by the city in
“Hill upheld a statute … that was materially identical to
the law at issue here except that the (Chicago) Ordinance has a smaller radius
in which the eight-foot bubble zone applies (and therefore is less restrictive
than the Colorado statute),” the judge wrote. “The City of Chicago passed the
Ordinance in light of Hill and the government relies upon it here. Because Hill
controls this case, Plaintiffs’ facial claim cannot succeed.”
The decision came a
little more than four months since the abortion opponents filed suit in August
in Chicago federal court, seeking to overturn the ordinance or, short of that,
judicial action to require more equal enforcement of the ordinance by city
Plaintiffs in the action include the Pro-Life Action League,
The Live Pro-Life Group, and individuals, including Ann Scheidler, Anna Marie
Scinto Mesia, David Berquist and Veronica Price.
According to the complaint, the activists asserted the
ordinance violated their constitutional rights to free speech, as established
under the Supreme Court’s 2014 decision in McCullen
v. Coakley, and the high court’s findings in Reed v. Town of Gilbert in 2015. In McCullen, the court had struck down an abortion clinic buffer zone
law in Massachusetts, while in Reed,
the high court had invalidated an Arizona community’s attempt to restrict signs
displayed without a permit.
St. Eve said those decisions, while seeming to apply to
Chicago’s ordinance, fall short compared to the more precise comparison and
finding offered by the Supreme Court’s Hill decision, which declared such
buffer zone rules could be constitutional if they were “content neutral,” and
applied only to the actions of protesters or activists. In this case, she said,
the ordinance prohibits activists from encroaching an 8-foot bubble around
anyone within a 50-foot radius surrounding a health care facility’s entrance.
While plaintiffs argued the other Supreme Court decisions “eviscerated”
the “foundations of Hill’s reasoning,”
St. Eve concluded the Hill decision
should still apply as it is “on point” to the Chicago controversy, and the
Supreme Court did not use the other cases to explicitly overturned Hill.
However, the activists found a more receptive audience for
their claims that the Chicago Police had effectively discriminated against them
in enforcing the ordinance. They listed at least 15 separate instances in which
Chicago Police officers either misinterpreted the ordinance against them – for instance,
establishing the buffer zone 50 feet from a clinic’s parking lot gate, rather
than from the door – or had unequally enforced the ordinance, by allowing pro-choice
activists to serve as “escorts” for women entering the abortion clinic, standing
within the 8-foot bubble zone, or even allowing pro-choice activists to allegedly
accost pro-life activists without any intervention by officers on the scene.
St. Eve said the long list and specificity of these
allegations should allow the pro-life activists to pursue this aspect of their
While the ordinance itself may constitutional, the judge
said the application and enforcement of the ordinance by the city and its
police officers may not be.
The pro-life activists are represented in the action by The
Thomas More Society, of Chicago; attorneys Jason R. Craddock and Stephen M.
Crampton, of Chicago; and attorney Michael J. DePrimo, of Hamden, Conn.
The city of Chicago is represented by attorneys with its
Department of Law.