City Attorney Ariel Calonne
Paul Wellman (file)

Unless the City of Santa Barbara rescinds or significantly amends its “bubble ordinance” restricting free speech rights near the entrance of Planned Parenthood, churches, and medical clinics, Katie Short, legal director for the Life Legal Defense Foundation, said her organization would likely sue.

Short said the city’s ordinance does not pass legal muster in light of the recent Supreme Court ruling that stated a Massachusetts law requiring a 35-foot buffer between anti-abortion activists and clinic entrances is unconstitutional. Although Santa Barbara’s ordinance is much less restrictive — requiring only an eight-foot buffer from the driveway to the entrance of Planned Parenthood, churches, and clinics — Short said it still fails to meet the concerns expressed by the Supreme Court when its justices voted unanimously to strike down the Massachusetts law.

In that ruling, the court drew a sharp distinction between anti-abortion protestors and sidewalk counselors who sought to engage patients entering the clinics to dissuade them from having abortions and counsel them as to the available alternatives. By requiring so large a buffer, the court ruled that counselors would be forced to shout to be heard, thus making themselves indistinguishable from the protestors. Likewise, the Supreme Court objected that so large a buffer effectively prohibited the distribution of literature, a constitutionally protected expression of free speech.

In the aftermath of the court ruling, city attorney Ariel Calonne suggested the city’s ordinance could withstand legal challenge because its buffer is only eight feet. That distance, he noted, had been approved by the 9th Circuit Court of Appeals in 1999 when adjudicating a longstanding first amendment challenge against the city’s measure filed by anti-abortion activists. In that opinion, the appeals court commented of the city’s eight-foot buffer, stating, “Conversation is easily possible at this distance.” Calonne specifically cited that language when indicating his confidence that the bubble ordinance could withstand legal attack.

Short took factual issue with the 9th Circuit opinion, noting that the city’s ordinance requires anyone around the bubble zone to stand eight feet away from the entrance of the driveway. As a practical matter, Short argued that it would be all but impossible for any sidewalk counselor to engage in meaningful conversation with anyone driving into the Planned Parenthood parking lot. “From that distance, it would be hard enough to have a conversation even if there was no background noise,” she said. “But imagine if you’re trying to have that conversation with someone in a car with their engine running with cars possibly behind them? Imagine trying to hand them a leaflet?”

Likewise, she said, the Supreme Court ruling made it clear that government agencies had to have exhausted other remedies less restrictive on free speech rights. That, she claimed, had not happened. Calonne, who became city attorney several months ago, said he has not reviewed the legislative history of the ordinance sufficiently to comment. He has said that if the city council wants to protect itself from litigation while retaining some semblance of the bubble ordinance, they should rewrite the measure to make it a “floating” buffer.

By that, Calonne indicated the buffer should be measured in relation to the location of the patient entering the clinic, not in relationship to the clinic driveway. Short suggested it would be less restrictive still if City Hall sought to enforce rules already on the books barring anyone from blocking a driveway. Calonne declined to elaborate on the advice he’ll give councilmembers when he meets with them in closed session this Tuesday to discuss their options. He will be speaking with Short on Wednesday to relay the council’s thoughts.

The city’s ordinance was passed in 1993 — the first of its kind in the nation, according to Short — in response to intense protests taking place in Santa Barbara at the Planned Parenthood clinic, not to mention at the home and church of a doctor then performing abortions in town. In one incident, police and firefighters were called in response to a bomb threat. About the same time, a clinic in San Luis Obispo had been torched, and a doctor performing abortions in Florida had been shot to death by a pro-life advocate.

In the years immediately following the passage of the city’s bubble ordinance, city police issued many citations. But in recent years, the activity outside Planned Parenthood has been quiet, peaceful, and respectful, according to Planned Parenthood spokesperson Julie Mickelberry. “That shows the ordinance is working,” she said. “Women and men have a right to access medical care without harassment, judgment, and intimidation. We have all these medical privacy laws. We as individuals deserve to have that privacy protected when accessing health care.”

Mickelberry added that violence and the threat of violence remains pervasive at clinics providing abortion services. She cited a recent survey conducted last year by the National Abortion Federation in which 90 percent of doctors performing abortions reported seeing patients who had experienced concern over their personal safety upon entering the clinic and that 80 percent had called law enforcement because of such safety concerns.


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