Oakland Discriminates Against Anti-Abortion Activists, Judge Says

​Oakland discriminates against anti-abortion activists by selectively enforcing their "bubble ordinance," which prohibits contact with individuals entering reproductive health clinics, the Ninth Circuit has ruled.

The ordinance, which was passed in February 2008, makes it unlawful for anyone to "willfully and knowingly approach within eight feet of any person seeking to enter such a facility... for the purpose of counseling, harassing, or interfering" within 100 feet of the entrance to any reproductive health clinic.

Walter Hoye, a minister who regularly stands outside such health clinics to engage women in what he calls "friendly conversation" to dissuade them from having an abortion, was convicted twice of violating the ordinance. Hoye argued that Oakland does not enforce the ordinance evenhandedly, thus discriminating against anti-abortion activists.

Oakland's ordinance has a precedent -- the Supreme Court upheld a very similar Colorado statue in 2000. However, Oakland differs in that there are often volunteer "escorts" who meet women on their way into the clinics, supposedly to create a clear pathway to the clinic.

The court found, however, that Oakland police are trained not to the enforce the ordinance with escorts who say things like "May I help you into the clinic?" or "Don't take those leaflets they're going to try and hand you."

The police only enforce the ordinance with speech that does not facilitate access to the clinics, like "May I talk to you about alternatives to the clinic?"

Hence while the ordinance itself is constitutional, the court ruled that the implementation and enforcement of the ordinance was not content-neutral, and thus inconsistent with the First Amendment. Judge Marsha Berzon wrote that "Oakland has taken sides in a public debate in a manner that ... the Constitution does not permit."

The court ordered Oakland to remedy their policy to ensure that the ordinance is enforced in "an evenhanded, constitutional manner."

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