Judge: Pro-life activists can sue Chicago for unequal enforcement of abortion clinic 'bubble zone' rules

By Jonathan Bilyk | Jan 5, 2017

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 clinics.

“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 judgment.

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 its defense.

“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 police.

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 case.

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.

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