Ninth Circuit Hears San Diego Abortion Clinic Speech Challenge

• An anti-abortion protester is challenging San Diego's ordinance restricting speech near abortion clinics in the Ninth Circuit.
• The plaintiff, Roger Lopez, argues the ordinance is unconstitutionally vague, overbroad, and violates his First and Fourteenth Amendment rights.
• A lower court dismissed the lawsuit in March 2025, citing the Supreme Court's *Hill v. Colorado* precedent.
• The San Diego ordinance creates 100-foot buffer zones around healthcare facilities, prohibiting unconsented approaches within 8 feet for speech or literature distribution.
• The Ninth Circuit panel questioned attorneys on whether the ordinance's harassment and noise provisions are too vaguely defined.

This Ninth Circuit review holds significant implications for the permissible scope and drafting requirements of local ordinances that regulate speech near healthcare facilities.

An anti-abortion protester, Roger Lopez, is currently seeking to revive his dismissed lawsuit against the City of San Diego concerning an ordinance that restricts speech outside abortion clinics. Lopez contends that this municipal regulation unconstitutionally infringes upon his First and Fourteenth Amendment rights by limiting what he describes as peaceful sidewalk counseling.

His attorney, Michael McHale of the Thomas More Society, presented arguments before a Ninth Circuit panel, aiming to overturn a lower court's decision to dismiss the case and its denial of a preliminary injunction. Such an injunction would have prevented the ordinance's enforcement while the federal case proceeded. Lopez characterizes his activities as offering caring, face-to-face conversations to women entering clinics, providing information about resources available should they choose to carry their pregnancies to term. McHale asserted that San Diego's ordinance effectively stifles this message, describing it as a "multi-pronged" regulation that "unnecessarily sweeps in and criminalizes peaceful pro-life sidewalk counseling."

The San Diego ordinance under scrutiny expands an existing law, establishing buffer zones that extend 100 feet from the entrances and exits of schools, healthcare clinics, and places of worship. Within these designated zones, the regulation prohibits individuals from approaching others within an 8-foot radius to engage in conversation or distribute literature without their explicit consent.

Lopez specifically contests several aspects of this regulation, including the 8-foot rule itself, as well as provisions related to harassment and noise. He asserts that the ordinance is unconstitutionally vague and overbroad, and that it unfairly targets anti-abortion protesters. The district court had previously dismissed Lopez's lawsuit in March 2025, citing the precedent set by the Supreme Court's 2000 decision in *Hill v. Colorado*. The city had argued in its September 2024 motion to dismiss that its ordinance was modeled after the Colorado law upheld in that landmark case.

During the Ninth Circuit hearing, the panel immediately questioned McHale's arguments, particularly regarding the applicability of *Hill v. Colorado*. Senior Circuit Judge Richard Paez, a Bill Clinton appointee, inquired why the Supreme Court decision, which affirmed a state law restricting protests near healthcare facilities, did not fully resolve the current lawsuit.

McHale countered that *Hill v. Colorado* did not address prohibitions on vaguely defined harassment or noise. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, challenged McHale on the ordinance's harassment definition, which describes "knowing and willful targeting of a specific person in a way that would seriously alarm or aggravate, cause substantial distress to intimidate, terrorize, threaten or torment a reasonable person." Sanchez questioned why this "conduct-based definition" was not sufficiently specific for individuals to understand what constitutes harassment. McHale argued that, as written, the ordinance could potentially interpret approaching someone with a pamphlet as harassment, and suggested that playing offensive or sexually explicit music while driving past a protected area might also be perceived as a violation. San Diego Deputy City Attorney Matthew Zollman, however, disputed these interpretations, clarifying that harassment requires knowing and willful direction toward a specific person entering or exiting a protected facility, and the conduct must be objectively alarming to a reasonable person. Zollman emphasized that the ordinance provides concrete examples of what constitutes harassment.

This Ninth Circuit review holds significant implications for the permissible scope and drafting requirements of local ordinances that regulate speech near healthcare facilities. The court's decision could establish new benchmarks for how municipalities must craft such regulations to withstand challenges based on vagueness and overbreadth under the First and Fourteenth Amendments.

The outcome will be particularly relevant for legal professionals advising cities on drafting similar ordinances, as well as for advocacy groups either challenging or defending these types of regulations. It will also offer crucial guidance on the interpretation and application of the *Hill v. Colorado* precedent in contemporary free speech cases involving buffer zones, ultimately shaping the balance between protecting free speech rights and ensuring safe access to medical facilities.

This Ninth Circuit review could redefine the permissible scope and drafting requirements for local ordinances restricting speech near healthcare facilities, particularly regarding vagueness and overbreadth challenges under the First and Fourteenth Amendments. Lawyers advising municipalities on drafting such ordinances, or representing advocacy groups challenging/defending them, should monitor the Ninth Circuit's decision for potential impacts on existing or proposed regulations and the interpretation of *Hill v. Colorado*.

Source: Reporting via Courthouse News