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3rd Circuit Rules On Constitutional Claims By 3 Abortion Protesters

By Howard M. Friedman

On Monday, the U.S. 3rd Circuit Court of Appeals issued decisions in three related lawsuits brought by abortion protesters who regularly confront women outside a York, Pennsylvania Planned Parenthood Clinic to dissuade them from entering the clinic and having an abortion. Three separate plaintiffs sued the city and various police officials claiming violation of their free exercise and free speech rights when police officers restricted their access to a street adjacent to the Clinic. Two of the plaintiffs also asserted that their arrests outside the Clinic violated their 14th Amendment rights. Each of the cases arose in somewhat different factual contexts.

In McTernan v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court concluded that the burden placed on McTernan delivering his religiously motivated message was not pursuant to a neutral and generally applicable regulation since Clinic personnel, clients and escorts were permitted access to the street. Thus the restriction was subject to a strict scrutiny analysis. The court remanded the case for trial for a jury to determine whether the restriction served a "compelling" governmental interest and was narrowly tailored. The court also remanded McTernan's speech claim for trial. It held that police directives as to speech create potentials for arbitrary enforcement and are subject to heightened scrutiny. It held that factual questions remain as to whether the police restrictions were "narrowly tailored" to further the government's "significant" interest in traffic safety. The court however dismissed certain of McTernan's claims asserting municipal liability.

In Snell v. City of York, Pennsylvania, (3d Cir, April 27, 2009), the court found that no reasonable jury could find that the free exercise restrictions placed on plaintiff were "generally applicable", but remanded for trial on whether there was a "compelling" governmental interest in the restrictions. It remanded his free speech claim for trial on whether police restrictions were "narrowly tailored." The court also remanded Snell's 4th Amendment claim for a jury to decide whether there was probable cause for his disorderly conduct arrest, but rejected his excessive force claim. The court dismissed certain of Snell's claims asserting municipal liability.

In Holman v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court found that plaintiff failed to demonstrate that any restriction had been placed on his free speech or free exercise rights. The court also found no 4th Amendment violations in Holman's arrest for trespass and affirmed the trial court's grant of summary judgment for defendants.

Alliance Defense Fund issued a release discussing two of the cases. (See prior related posting.)

Full post as published by Religion Clause on April 30, 2009 (boomark / email).