Susan Wigenton

An ordinance designed to deter “sidewalk counseling” of women entering an Englewood abortion clinic violates the First Amendment, a New Jersey federal judge has ruled.

Tuesday’s decision by U.S. District Judge Susan Wigenton in Turco v. City of Englewood follows a 2014 ruling by the U.S. Supreme Court in McCullen v. Coakley, striking down a similar law in Massachusetts. Wigenton said Englewood’s law, like the one in Massachusetts, was content-neutral but nonetheless violated the First Amendment because it was not narrowly tailored to serve a significant government interest.

Englewood’s law was enacted in response to protesters who congregate outside Metropolitan Medical Associates, an abortion clinic. Protesters have sought to engage clients of the clinic in discussions about abortion, have handed out flyers and rosaries and have occasionally engaged in shouting, pushing and blocking entrances, according to the court opinion.

The city established a buffer zone on the sidewalk around the clinic’s entrance and driveway and prohibited people from remaining in that area unless they are entering or leaving the facility, or using the sidewalk while passing through the area. The ordinance also exempts first responders, utility workers and other public employees acting in the scope of their employment.

Like the Massachusetts law, Englewood’s version governed conduct outside all health care facilities, not just abortion clinics. But Wigenton said that makes the ordinance overbroad.

“Defendant created a sweeping regulation that burdens the free speech of individuals, not just in front of the clinic, but at health care and transitional facilities citywide. To meet the narrowly-tailored requirement, defendant must create an ordinance that targets the exact wrong it seeks to remedy,” Wigenton said.

Englewood is obligated to show that alternate measures would fail to achieve its goal of protecting the privacy of clinic patients, Wigenton said. The city asserted that it tried dealing with the issue through increased police presence or injunctive relief, but “even drawing all justifiable inferences in favor of defendant, the record does not show support that defendant seriously tried or considered any less restrictive alternatives,” Wigenton said. The city did not prosecute any protesters for activities outside the clinic in the past five years before it adopted the ordinance, and did not seek injunctive relief against protesters whose conduct was the impetus to the ordinance, the judge said.

The suit was filed by Jeryl Turco, an abortion opponent who seeks to engage clinic clients in “quiet, friendly, non-confrontational conversation with a view toward offering them alternatives to abortion,” according to court documents. Her form of counseling requires her to be in close proximity to clients entering the clinic. She sought an injunction against enforcement of the ordinance.

The ordinance establishes a buffer zone that extends eight feet to either side of the clinic’s doorway and its driveway. Turco and others are excluded from 48 feet of the public sidewalk outside the clinic.

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

Turco’s lawyers were Mark Scirocco of the Legal Center for Defense of Life in Budd Lake and Francis Manion of the American Center for Law and Justice in New Hope, Kentucky.

Manion said the city’s argument failed because it didn’t support its claim that it tried a less-restrictive approach to governing the clinic entrance before enacting the ordinance.

“You have to try other things, really try other things, before you go to a buffer zone,” Manion said.

Englewood had no evidence of any arrests of clinic protesters for harassment in the last five years, he said. Manion said his group does not support tactics of blocking entrances or pushing and shoving clinic clients, but the city failed to differentiate between such activities and his client’s method of activism.

“The city just went after everybody who is against abortion. It lumps everybody in the same category,” Manion said.

Manion said other means of regulating the clinic entrance areas are available, including calling the police if a crime is committed by a protester. The Englewood facility has its own guard stationed inside the entrance, he added. The regulation of protesters outside the Englewood clinic is particularly complex because its entrance opens right onto the public sidewalk unlike most other abortion facilities that are set back from the street and have their own parking, Manion said.