City buffer zone, separating abortion patients from protesters, faces lawsuit in federal court

Imagine: You’re a woman who has decided to have an abortion. You’re about to get out of your car and walk the fifteen feet of sidewalk separating you from the glass doors of the Family Planning Specialists Medical Group near Jack London Square in West Oakland. Statistically speaking, you’re in the majority if you are black or Latina, low-income, in your twenties, unmarried, affiliated with a religion, and already the mother of least one child.

Inside the clinic is Jackie Barbic, executive director of the only abortion facility in the West Oakland/downtown area.  Barbic opened the clinic with two physicians in 1984. At one point during the clinic’s first five years, she said, a protestor named James Kopp broke in, chained himself to a table in an exam room adjacent to the operating room where a doctor was seeing a patient, and screamed Hail Marys until the police took him away. About a decade later, Kopp would go on to shoot and kill Dr. Barnett Slepian, an abortion provider in Amherst, New York.  Kopp is now serving a life sentence in upstate New York, but to this day, Barbic says, she still watches protesters outside with some concern. As recently as May, another abortion doctor, George Tiller, was shot in a Kansas church. Tiller’s clinic had been a target for abortion opponents for years beforehand.

From the car window you see a man, middle-aged, African-American, standing ten feet away.  He’s  in a black hooded sweatshirt.  His ball cap sports the phrase, “Got Jesus?” He’s holding a stack of papers that look like flyers or pamphlets.

This is Walter Hoye, a Union City-based preacher in the southern Baptist tradition who says he’s convinced that abortion is tantamount to genocide in the African-American community, and that having an abortion for any reason is “killing a human life.” Every woman who has an abortion, Hoye frequently says, “knows what she’s doing, deep down,” and regrets it.

Now Hoye is smiling at you, his dark eyes peering above his wire-rimmed shades. You open the door of your car.

What happens next has been the subject of contentious legal debate since December 2007. That’s when Oakland’s City Council passed a law called the Bubble Ordinance to protect “access to reproductive health care facilities,” according to the City Council’s resolution. The ordinance prohibits protesters from approaching within eight feet of women within a 100-foot range of reproductive health clinics if they are “obstructing access” and do not have consent.  It prohibits “the use of force, threat of force, or physical obstruction to intentionally injure, harass, or interfere with any person providing or obtaining constitutionally-protected reproductive health care services.”  Barbic says it took 15 years to persuade council members adopt the law, which was written by Councilmember Nancy Nadel and modeled after a similar 1993 ordinance adopted in Colorado. Since Colorado’s ordinance passed, similar legislation creating “bubbles” or “buffer zones” around health care facilities and abortion clinics have been debated, passed, and contested in towns and cities throughout the US.

New York and Florida have passed state laws in 1994 and 1997, respectively, to keep protesters away from clinic entrances and exits. Massachusetts’s legislators passed a state law in November 2007 that created a 35-foot buffer zone around clinics.  Last month the Chicago City Council passed a bubble ordinance that bans passing out materials, displaying signs, protesting, or counseling without consent within 50 feet of medical clinics and hospitals. Pro-life lawyers have told the press they plan to sue if the mayor does not veto the ordinance before it takes effect November 17. Last week, the 3rd U.S. Court of Appeals struck down Pittsburgh, Pennsylvania’s 2005 ordinance that kept clinic protesters 15 feet away from entrances as well as eight feet away from patients within a 100-foot radius of the clinic. The court ruled that either zone by itself would have been constitutional, but that when applied together, the ordinance violated protesters’ free speech rights.

Bubble ordinances and similar laws, Barbic says, are “absolutely needed to offer patients privacy and protection.” She says that before Oakland’s ordinance was adopted, she regularly saw women crying and shocked by clinic protesters’ overtures, which included trying to get into patients’ cars, or in certain cases into the clinic itself. “They would ask, ‘Why are they allowed to do this? Is this legal?’ They felt very much that this was a violation,” Barbic said.

Three years ago, Catholic pro-life activists invited Hoye and his church, the Progressive Baptist Church in Berkeley, to join their weekly protests at the clinic. In particular, Hoye says, the sisters reached out to him because he is black, as are many of the clinic’s patients. Hoye agreed, and since then has made a routine of standing outside the Family Planning Specialists Medical Group on Tuesday mornings, doing what he terms “sidewalk counseling.”

Now, after losing the battle to overturn Oakland’s ordinance in the state courts, Hoye’s attorneys are trying to convince a federal appellate court that the law unconstitutionally violates Hoye’s right to free speech. One of his attorneys, Catherine Short, argues that the law discriminates against pro-life protesters. She says she’ll appeal to the US Supreme Court if she has to.  Like many of her abortion-opponent colleagues around the country, Short argues that the whole concept of a clinic “bubble zone” is unfair. “If you want to encourage women to enter the clinic, that’s fine – if you want to ask them to consider the alternative – that’s not okay?” she says. “We believe that it is so clear that this is wrong.”

On a hot fall afternoon at the College of Alameda, following a late morning outreach session to students, Hoye sat at a picnic table dressed in his characteristic all-black and “Got Jesus?” gear. A half-dozen older men and women, all white, had just packed up several two-foot by five-foot color photographic signs of bloody fetuses and driven away in a nondescript white van. Looking relaxed but alert, his forearms resting on the uncomfortable metal table, Hoye described a typical day outside the clinic in Oakland.

“The first thing they can see is my sign – it simply says ‘God loves you and your baby. Let us help you.’” Hoye said, his dark eyes peering levelly over his sunglasses. “So the first thing I say when I finally get a chance to talk to her is ‘Good morning. May I talk to you about alternatives to the clinic?’”

He continued. “Sometimes they want to talk, sometimes they don’t. But you know what? Seeing an African-American preacher on the sidewalk…you can imagine. Some people do want to talk. Some women are really struggling with that decision as they walk up. And they have said, ‘Wow, I didn’t really understand that there are groups that could help me, or other options that are available.’”

Hoye says that on a good day, “about a fourth” of the clinic patients will stop to listen to him for a while before going on in. He says that he’s only seen a handful of women actually turn around and change their minds on the spot, but it’s more common for “a few” patients to go in for “too short of a time” and then give him what he describes as a “thank you wink” on their way out. He assumes that those women had decided to forego abortion.

“Those are our saves,” he said, looking pleased.

Hoye, a Detroit native who says he grew up influenced by religion and Dr Martin Luther King, Jr., expected to play football professionally until he “got called to preach” in his twenties. He said he began to feel strongly about abortion in 1984, when his son was born nearly three months premature. At one point, Hoye said, his son’s weight dropped from two pounds to one. “I don’t know if you saw those pictures over there,” he said, gesturing to where the white van had been parked. “There’s an aborted fetus about the size of my son.”

He paused. “So I’m holding my son in the palm of my hand.”  He was cradling his cellphone. “The iPhone I’m holding is heavier – it’s more than one pound. At that point, while I’m holding him, I could see his hands and his eyes, his feet… It became very clear to me that this was a human being. He wasn’t just a blot of tissue. It was no longer an academic exercise anymore for me; I was holding what was supposed to be on the inside of a woman. And at that point I knew what abortion was.”

According to the National Abortion Federation, first-trimester abortions – which are performed within the first 13 weeks, or roughly three months, of pregnancy, account for 88 percent of all abortions nationwide. Also according to their website, “fewer than two percent of abortions are provided at twenty-one weeks or after, and they are extremely rare after twenty-six weeks of pregnancy.”

Hoye says that a primary cause of preterm miscarriages is abortion – a contention refuted by “most doctors,” the American College of Obstetricians and Gynecologists says on its website. The American College of Obstetricians and Gynecologists does not consider abortion a cause  of either miscarriage or breast cancer, another assertion advanced by some right-to-life groups.   Hoye also says he believes abortion is a scheme orchestrated by eugenicists and Nazis to enact genocide on the African-American community. “Look at the founder of Planned Parenthood, Margaret Sanger,” he said. “She was a eugenicist.”

Asked for a response in a later interview, Barbic was speechless for a moment. “I don’t know what I can say to that,” she finally said, then took a breath. “Women of color have higher unplanned pregnancy rates. I’d like to see a focus on working toward helping lower the unplanned pregnancy rate and making contraceptives more available. I think we have to look at bigger picture. I think he’s twisted things around.”

These days, Hoye still goes out to Family Planning Specialists Medical Group on some Tuesday mornings.  But it’s more complicated now, he says. He has to bring a team with him, including someone who can operate a video camera – for legal reasons, he said. He also has to stand at least eight feet away from the people entering or leaving the clinic – “an awkward distance to have a conversation,” he complained. Hoye’s relationship to the clinic’s volunteer escorts – which until his trial was “civil,” he says, characterized by small talk and even remembered birthdays – has deteriorated. The escorts carry blank pieces of cardboard to obscure his sign’s message, and they scuttle the patients quickly past Hoye, taking advantage of the ordinance’s restrictions on how closely he may approach.

Hoye’s lawyer, Short, characterizes Hoye’s manner as “extremely gentle” and says he has been unfairly targeted by the law. “This is pretty much a Pastor Hoye ordinance – it’s pretty much just him and the little old ladies he comes with,” she says.  “They are determined to prevent women from talking to him. Their ideology is such that it is de facto harassment for anyone to be standing outside the clinic with a sign that says “Can I help you?” What is so bad about someone saying ‘Can I talk to you about alternatives to abortion?’”

Barbic tells a different story. She contends that Hoye is “one of the more aggressive protesters” who pickets the clinic – but that he’s just one of many the clinic has seen over the years. Groups and individual protesters come and go, Barbic says, but the protests continue. “The right of patients to access medical care is more important that Mr. Hoye,” she said. Currently, she says, every fourth Saturday of the month a group of Catholics pray in the parking lot opposite the clinic, carrying signs, singing and chanting. “Some in their group get a little aggressive. One woman stands in middle of street, trying to stop the cars and hand out literature,” Barbic says.

Barbic notes that while the “clinic invasions” more common in the 1980s have tapered off, some protesters have become more aggressive toward patients and medical staff entering or leaving clinics. “What you worry about is what happened with Dr Tiller,” she said, meaning George Tiller, the Kansas abortion provider who was shot to death in May. “It’s frightening. Especially when you have doctors murdered. I think it’s scary for them,” she says, referring to the staff at her clinic.

“Right now because of the Bubble Ordinance, Walter Hoye is not as aggressive as he was,” Barbic says. “He always came with four or five other people. He would go up – if a patient drove up – actually stick his head in the window. He would try to hand brochures to them inside the car. He would walk across the street, down the sidewalk, and follow then until they got the front door. He was very close to them physically; they felt very uncomfortable. It was very upsetting to the majority of patients.”

Barbic says the video camera Hoye brought “frightened and intimidated” clients to the point where they would drive away and reschedule their appointments for a day when Hoye was not expected to be there. “I’m not aware of any patients that they’ve helped,” she says.

In May 2008, five months after the ordinance passed, Hoye was arrested for violating the ordinance and given a 30-day jail sentence, which he served in March this year (he got out early after 18 days). Since then, Barbic says, Hoye’s change in behavior has been apparent. She says that before he was arrested, Hoye didn’t seem to respect the ordinance. “It didn’t seem to make a difference to him initially, until he was arrested, went to trial and found guilty.” Now, she said, he seems to follow the law.

Clinic escort coordinator Barbara Hoke agreed. “A lot of the stuff Walter did before the ordinance he can’t do anymore,” she said. “He can’t surround patients, block them from coming out of their cars, force literature on them.” But, she says, what’s at stake is much larger than Hoye’s activities. She said the pro-life movement (she terms them “the anti’s”) is trying to make Hoye  into a “poster child” for their cause.

“This is about all the anti’s in the country,” Hoke said “They try to impose their value system on other people. They necessarily violate a woman’s privacy when she’s entering her doctor’s office.”

Twelve years ago, Hoke said, she decided she would go to abortion clinics in Oakland and offer to walk with women from their cars to the clinics in order to help them pass safely by pro-life protesters. Shortly afterward, she began organizing others to help her, and she has been coordinating clinic escort shifts since. The escorts,  clad in identifiable orange vests,  go to every  Oakland clinic that has demonstrators. “Ordinarily we schedule two people to escort at a clinic,” Hoke said. When protests are large and numerous–like last year, Hoke recalled–there might be twenty to thirty clinic escorts on-call. “Our function is simply to make sure women have access and can go into that clinic in a safe way,” she said.

The impunity of escorts under the Bubble Ordinance has incited the ire of Short, who argued that the law is clearly biased because it allows volunteer clinic escorts to approach patients and speak to them, while Hoye can’t. Short also argued that by covering Hoye’s signs, the escorts are inhibiting Hoye’s right to free speech.

“If that’s not unconstitutional, I don’t think we have any meaning for that anymore,” Short said heatedly. “Escorts are not employees, they get to wear orange vests, the city says they can go up to women and say whatever they like, including ‘Don’t listen to him, he’s only here to harass you.’ They say the women in the orange vests are ‘facilitating access.’ But obviously, they’re counter-protesters.”

City of Oakland attorney Vicki Laden, who has been defending the ordinance in court, refuted Short. “Escorts approach patients not in order to counsel or engage them in conversation but rather to help them get into clinics,” she wrote in legal briefs filed in May. “Escorts do not engage in abortion-related speech or advocate a pro-choice viewpoint to patients. Escorts do not wear writing of any kind. They do not hoist slogans or political viewpoints. The only signs they use are blank. They do not chant or shout pro-choice messages,” Laden wrote, citing Hoke. And, she added during an interview, escorts are also bound by the same rules that apply to Hoye – they also have to ask the women near clinics for permission to approach them.

In August, US District Court Judge Charles R. Breyer upheld Oakland’s Bubble Ordinance as “content neutral,” and ruled that police have been appropriately applying the law. In October, he denied Hoye’s application for a halt on enforcement of the law while Hoye’s lawyers continue to appeal. “The public interest lies in balancing the right to free speech and expression with the right to access reproductive health care; granting an injunction would skew that balance,” Breyer wrote.

Short says she is still hopeful. She and Hoye’s other attorney, Michael Millen, still plan on filing an appeal soon. “We believe that it is so clear that this is wrong – everybody agrees,” she said confidently. The 9th Circuit Court of Appeals, her case’s next stop, has not been particularly friendly to abortion protesters, she said.  “But they take content neutrality very seriously,” Short said. “If you want to encourage women to enter the clinic, that’s fine – if you want to ask them to consider the alternative – that’s not okay.”

But Laden says she doesn’t expect the appellate judges to rule differently than Breyer did. “The First Amendment does not guarantee Plaintiff the right to always communicate at a ‘polite’ distance,” she wrote in the legal brief filed in May. Laden argued in the same brief that the ordinance “was passed not to stifle speech but to secure access to reproductive health care in the face of a long history of threatening and sometimes violent protests.” She said that the ordinance “doesn’t prohibit free speech – it only prohibits intimidation and harassment.”

“The chance of the 9^th Circuit overturning this ruling I’d say is zero,” Laden said later. “An ordinance virtually identical to this was upheld in Hill v. Colorado.” In Hill v. Colorado, the Supreme Court upheld the Colorado law after which Oakland’s ordinance was modeled.

So why would Hoye and his lawyers pursue what Laden calls a zero-percent chance of winning? Laden paused to consider. “If people are kind of ideologues, they can be oblivious to the law on their issue. Even though they’re challenging a law virtually identical to a law the Supreme Court has upheld, that doesn’t seem to have any effect on their thinking.”

Outside the Family Planning Specialists Medical Group, the protests continue, and patients walk past. “They’re still here, they’re still protesting,” said Barbic. “But with the bubble ordinance in effect, they’re not blocking patients. It’s given the patients just a little bit of protection.”