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The imposition of buffer zones separating pro-life protesters from abortion clinics, as well as reproductive health centers that do not provide abortions, has been upheld by the 2nd U.S. Circuit Court of Appeals. But the court also ruled that the injunction by Judge Richard J. Arcara of the U.S. District Court for the Western District of New York expanding the court-ordered buffer zones at two women’s health care facilities beyond 15 feet was unconstitutional. And it also struck down Arcara’s “blanket ban” on the use of sound amplification at the protests. The decision will be published Friday. In a victory for the clinics, the court also upheld Arcara’s decision to withdraw one exception to the buffer zones he had imposed in 1992. The so-called “sidewalk exception” had allowed two protesters to enter the zones to “counsel” patients entering and leaving the clinics. The ruling Monday came in the appeal of two protesters who challenged injunctions issued by Judge Arcara in New York v. Operation Rescue National, 00-9076. Amid a wave of anti-abortion protests in 1992, Judge Arcara issued his first injunction, which set 15-foot buffer limits around the entrances to clinics, but allowed two protesters to approach patients and “give sidewalk counseling consisting of conversation of a non-threatening nature.” While protests continued on a smaller scale for several years, the anti-abortion movement’s announcement of large-scale demonstrations planned for 1999 prompted Doctors Shalom Press and Morris Wortman and two reproductive health facilities to ask Judge Arcara for an injunction that would regulate activities outside the clinic. The doctors and clinics asserted that the protests were in violation of the Freedom of Access to Clinic Entrances Act. The judge granted a temporary restraining order in 1999, and following a hearing, converted his order to a preliminary injunction in 2000. Arcara found that the protesters obstructed entrances by “crowding” patients, threatened violence, triggered shoving matches and used bullhorns to intimidate patients. His injunction expanded the 1992 order in several respects, including expanding the restrictions beyond clinics that provide abortions to include all reproductive health facilities in Western New York, eliminating the sidewalk exception and banning sound amplification. Mary Melfi and the Rev. Michael Warren were among several defendants charged with trespass, nuisance and violating the Freedom of Access to Clinic Entrances Act (F.A.C.E.), which provides for criminal charges and civil penalties for people who intimidate, injure or interfere with patients who are trying to obtain reproductive health services. Melfi and Warren claimed that their actions did not violate F.A.C.E., and that the injunction violated their First Amendment rights. Monday, as to Warren, the court said the record against him was “considerably weaker” than that against Malfi, and remanded his case for further proceedings. But the 2nd Circuit ruled that the plaintiffs were likely to succeed in showing that Melfi had violated F.A.C.E. because she had blocked patients from entering the clinics and “often confronts patients at close range, shouting at them through a bullhorn … “ While 2nd Circuit Judge Chester J. Straub said the court was “troubled” that Judge Arcara “overstated the protesters’ activities, often by characterizing legitimate First Amendment activity as criminal behavior … ,” he said Judge Arcara was justified in issuing a preliminary injunction against Melfi. Melfi had better luck in convincing the court that the terms of the injunction were overly expansive. First, the court dealt with the expanded buffer zones at Planned Parenthood Rochester and Buffalo GYN Womenservices. “Although we agree that picketing activity at the sites has interfered with clinic access, thus meriting the continuation and modification of buffer zones, the enlargements by the District Court are more extensive than necessary to effectuate the articulated state interests and this violates the First Amendment,” Judge Straub said. In the case of the Buffalo clinic, for example, Straub said the expanded zone, which stretched more than 200 feet, “effectively” prevents “protesters from picketing and communicating from a normal conversational distance” along a public sidewalk near the clinic. The court upheld Judge Arcara’s decision to withdraw the sidewalk counseling exception, noting that the Supreme Court ruled that the exception was not necessary to making the 1992 buffer zones constitutional. Moreover, Judge Straub said, “the exception was logistically unsupportable.” As for the “blanket” ban on sound amplification, the appeals court said, “the injunction burdens more speech than necessary to achieve its goals.” “The provision is not narrowly tailored to achieve its goal, and is thus vacated and remanded for additional findings and refinement so that any ban only applies to those sites requiring such additional noise control,” Straub said. Judge Straub’s opinion was joined in by Judge Fred I. Parker and Senior Judge Joseph M. McLaughlin. Vincent P. McCarthy of New Milford, Conn., represented Michael Warren. Christopher A. Ferrara of Ramsey, N.J., represented Melfi. Assistant Attorney General Jennifer K. Brown represented New York State. Lucinda M. Finley of the State University of New York at Buffalo represented Press and Wortman, as well as the Buffalo GYN Womenservices Inc. and Planned Parenthood of the Rochester/Syracuse Region.

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