Demonstrators for and against abortion rights demonstrate outside the U.S. Supreme Court on the day of arguments in “Whole Woman’s Health v. Hellerstedt” on March 2, 2016. Photo: Diego M. Radzinschi/ALM

A federal appeals court has thrown out a ruling that found an Englewood ordinance designed to deter “sidewalk counseling” of women entering an abortion clinic is unconstitutional.

The U.S. district court failed to adequately consider whether Englewood’s restrictions on access to a zone around the clinic entrance imposed a burden on speech rights of people seeking to counsel clinic patients as they entered the building, the appeals court said Monday. The district court also erroneously concluded in 2017 that Englewood’s law was overbroad and that it failed to consider less-restrictive means of regulating speech before it enacted the buffer zone law, the appeals court said.

Judges Theodore McKee and Thomas Vanaskie of the U.S. Court of Appeals for the Third Circuit heard the case along with Eugene Siler Jr., of the Sixth Circuit, who sat by designation.

The appeals court reversed an order granting summary judgment to the plaintiff, and sent the case back to the district court for further proceedings.

The Englewood ordinance had the practical effect of creating a series of overlapping buffer zones around the entrance of the Metropolitan Medical Associates facility, which provides abortions and other reproductive health services to women. The law was enacted after some protesters congregating outside the facility engaged in aggressive, loud, intimidating and harassing behavior toward patients, people accompanying patients, and other protesters. Many of the protesters were from a group called Bread of Life that allegedly had ties to groups supporting violent reprisals against abortion providers.

The ordinance was challenged by Jeryl Turco, who calls herself a “sidewalk counselor” and who disavows the aggressive approach of groups such as Bread of Life in favor of a nonconfrontational approach that includes handing out rosaries and literature to patients entering the clinic. Turco claimed the ordinance violated her First Amendment rights to freedom of speech, assembly and association.

The ordinance said public sidewalks and streets in the buffer zone were off-limits to everyone except for people entering and leaving the facility; employees or agents of the facility acting within the scope of their employment; law enforcement, firefighters, utility workers and other such people acting within the scope of their employment; and anyone using the sidewalk or street to reach a destination other than the health care facility.

U.S. District Judge Susan Wigenton, who issued the summary judgment ruling, said the ordinance’s application to all health care facilities, instead of just abortion clinics, made it overbroad. Wigenton also rejected the city’s assertion that it attempted  to protect the privacy of clinic patients through less restrictive means by arranging an increased police presence. She cited the city’s failure to prosecute any protesters for activities outside the clinic in the past five years before it adopted the ordinance, and the failure to seek injunctive relief against protesters whose conduct was the impetus to the ordinance.

The appeals court said the ordinance would withstand constitutional scrutiny if it is found to be narrowly tailored to serve a significant government interest. For a content-neutral speech restriction such as the ordinance to be narrowly tailored, it must not burden substantially more speech than is necessary to burden the government’s legitimate interests, McKee wrote for the court.

Wigenton relied on the U.S. Supreme Court’s 2014 decision in McCullen v. Coakley, which held that a state law creating buffer zones around abortion facilities was unconstitutional. But the record in the present case is different from McCullen in two ways, McKee wrote Monday. First, Turco admitted that she continued to speak with patients entering the facility even after the buffer zone law was enacted, although evidence about how much the law prevented her from communicating her message was contradictory. Second, the record showed the city considered and attempted to implement other means for regulating speech outside the abortion clinic before creating a buffer zone, and the city did attempt to enforce existing laws before creating the buffer zones, but those measures failed, McKee wrote. As a result, Turco was not entitled to judgment as a matter of law.

Turco testified that she continued to talk to clinic patients on a regular basis after the buffer zone was applied, although she said complying with the law was akin to traversing an obstacle course. And another self-described “sidewalk counselor,” Rosemary Garrett, stated in a deposition that she was not bothered by the buffer zone law. Therefore, McKee said the court could not conclude that the buffer zone imposed an improper burden on speech as a matter of law.

Donald Klein of Weiner Law Group in Parsippany, who represented Englewood, did not return a call about the appeals court ruling.

Frank Manion, an attorney for the American Center for Law and Justice in New Hope, Kentucky, represents Turco. He said the Third Circuit decision was “not really a definitive ruling,” but merely directs the court to conduct additional fact-finding. ”Obviously we disagree with the panel’s decision, but the case is still very much alive,” Manion said.

He said fact-finding in the case to date has been extensive, and added that it’s “hard for me to think of what more facts we can adduce.”