Judge denies request to block buffer zone around Louisville abortion facility

LOUISVILLE, Ky. (WDRB) -- A federal judge denied a pro-life group's request to block a city ordinance establishing a buffer zone around a Louisville abortion facility, while also handing that group a second chance to make its case to a federal judge.

The ordinance in question creates a buffer zone that pushes protesters and sidewalk counselors away from the EMW Women's Clinic on West Market Street in downtown Louisville. Specifically, it says demonstrators must stay at least 10 feet from the door to allow patients to enter and exit the building safely.

Louisville Metro Council passed the ordinance in May after some said the demonstrations outside the abortion clinic became too dangerous.

"Medically-speaking, and first and foremost, our patients are psychologically damaged by the blocking, harassment, taunts and stalking for over a block when they are trying to enter our office," Dr. Ernest Marshall, founder of the EMW Women's Surgical Center, said this summer. "This is extremely stressful, and they express they are afraid on a public sidewalk."

But Sisters for Life filed the lawsuit in June, arguing that the buffer zone is unconstitutional. The group provides sidewalk counseling to women considering abortions. The lawsuit argues that, "sidewalk ministry is not loud, obnoxious, or confrontational," but that it "can no longer happen" due to the buffer zone, which "made this interaction and sidewalk ministry illegal."

U.S. District Judge Rebecca Grady Jennings denied to issue an injunction against the buffer zone in a Friday ruling, saying Sisters for Life Inc. misinterpreted the ordinance — and the scope of the buffer zone — in their request.

"Plaintiffs' assertion that the buffer zones would 'practically envelope the entire city block' is incorrect," Jennings writes. "Based on the Department of Public Works's [sic] anticipated placement of the demarcation lines, Plaintiffs would still be able to engage in sidewalk counseling outside of EMW due to the large stretches of sidewalk out front of EMW that will remain outside the buffer zone's boundaries. The buffer zone will effectively require Plaintiffs to stand no more than ten feet away from any patients entering the facility."

The judge went on to argue that the buffer zone would not interfere with the pro-life group's ability to provide sidewalk counseling to women entering and leaving the facility.

"As a practical matter, if a person were to enter EMW by walking through the middle of the buffer zone, Plaintiffs could counsel them from merely five feet away on either side," the judge wrote. "Thus, Plaintiffs will be able to continue their sidewalk counseling, at a normal conversational distance, even after the buffer zone is demarcated. The only thing Plaintiff’s would be prevented from doing as a result of the buffer zone is physically obstructing a patient from entering the healthcare facility."

At the same time, the judge did not request the group's lawsuit on the grounds that, due to Sisters for Life Inc.'s "misinterpretation" of the Ordinance, they have yet to respond to with arguments "tailored to the actual effect of the Ordinance."

The move effectively gives Sisters for Life Inc. a second chance to make its case before a federal judge. However, Jennings added that, "given Plaintiffs' flawed underlying factual conclusions, the size of the Ordinance's proposed buffer zone, and the detailed Supreme Court and Circuit Court precedent upholding buffer zones more narrowly tailored than the one in McCullen, Plaintiffs' likelihood of success on the merits is not strong at this stage of the litigation," she wrote.

The city is not yet enforcing the law.

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