A pro-life activist is challenging the city of San Diego’s standard on free speech by appealing a federal judge’s dismissal of his lawsuit against a “no speech zone” law outside abortion clinics.
With the help from the Thomas More Society, a not-for-profit pro-life law firm, Roger Lopez is appealing U.S. District Court Judge Linda Lopez’s decision to dismiss his lawsuit and deny his motion for a preliminary injunction.
On behalf of the plaintiff, TMS attorneys are arguing against San Diego’s ordinance in the U.S. Circuit Court of Appeals for the 9th Circuit on grounds that it violates Roger Lopez’s First and 14th Amendments by restricting his right to speak freely on public sidewalks and to pregnant women in need.
“It is an ordinance that is breathtaking in its sweep,” Peter Breen, executive vice president and head of litigation at Thomas More Society, told The Center Square Wednesday. “Essentially you can’t talk to anybody on sidewalks in a vast swath of the city of San Diego — all because they are trying to stop folks like Roger who offer assistance at the abortion clinics in the city.”
This past year, City Attorney Mara Elliott presented a proposed ordinance that updates buffer zones at health care facilities, places of worship and school grounds at the San Diego City Council meeting on May 21. Council members approved the ordinance without any amendments, according to the opening brief filed in the 9th Circuit case of Roger Lopez v. City of San Diego.
The new ordinance changes the city’s fixed “15-foot buffer zone around entrances and exits from covered facilities,” to a 100-foot buffer zone and an 8-foot floating zone around people within that zone. Besides buffer zones, the ordinance also includes noise restrictions and prohibits any act of “harassment” within the 100-foot buffer zone.
The ordinance was inspired by Hill v. Colorado, a 25-year-old U.S. Supreme Court decision allowing Colorado to pass a law preventing pro-life activists from approaching within 8 feet of another person or within a 100-foot zone surrounding a health care facility, while engaging in protests or handing out pamphlets without the consent from the person.
Lopez and the Thomas More Society claim the ordinance is a hindrance to Lopez’s right to exercise free speech, but more specifically, his right to pro-life speech.
“Roger was doing nothing wrong and has done nothing wrong for decades,” Breen said.
Before the ordinance, Lopez had been praying and offering sidewalk counseling outside the downtown Planned Parenthood for 15 years, according to the opening brief.
“Over a 100 babies are here who would have been aborted because of Roger’s diligence and faithful efforts,” Breen said, referring to Lopez’s success in persuading women to decide against abortions. “So, he shouldn’t have to work under a free speech violation ordinance when he is exercising his rights, the same rights that all of us enjoy for free speech.”
Lopez and TMS said the ordinance restricts not only the rights of pro-life activists, but the rights of women to hear pro-life counseling.
“In the time the ordinance has been in effect, Roger has seen his ministry diminish in effectiveness,” Breen said. “He has been able to reach out to less people and not been able to help as many women with resources necessary to have their child.”
Breen noted that during a First Amendment case, the defendant must show adequate evidence of how the plaintiff was a threat and why restricting their rights is the necessary solution.
“When you are restricting people’s speech, the courts say you have to show there was some reason for what you did,” Breen said. “Usually that means there were fights, that there were all sorts of bad things happening, and the city couldn’t control the various problems so they had to have more restrictions than otherwise they would like to.”
Breen said no incidents outside abortion clinics involving sidewalk counseling had occurred in San Diego.
Breen also said Lopez has never had an incident with a clinical worker or volunteer, or had a bad encounter with a patient in his 15 years of sidewalk counseling. Therefore, Breen said, the city lacks the evidence to show how Lopez and other pro-life activists were a threat to pregnancy center patients and the community.
“There are no law violations by sidewalk counselors that we can see in a very long time in San Diego,” Breen said. “So really the city council, and the city attorney and the various officials had nothing to hang their hat on in order to sustain this ordinance. They used generic platitudes and made generic allegations.”
Given the lack of evidence of a threat, the reason the city adopted the ordinance was to attack pro-life speech, according to Lopez and the Thomas More Society.
San Diego’s ordinance was a joint effort between the city attorney’s office and pro-abortion advocates such as Planned Parenthood, TMS said in a press release.
Breen also said after the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood v. Casey, which gave back the power to regulate or ban abortion to the states, San Diego took the side of Planned Parenthood and the abortion industry.
“After the Dobbs decision came down reversing Roe v. Wade, the city of San Diego embraced the abortion industry and said they were going to do everything they could to try to promote it,” Breen said. “In this case they went to their book of ordinances and tried to design an ordinance that was clearly aimed at shutting down as much pro-life speech as possible.”
City attorney Elliot, who condemned the Dobbs ruling that upheld a Mississippi law banning most abortions after 15 weeks, praised San Diego’s ordinance for creating a “proper balance between free speech and public safety,” according to the Thomas More Society press release.
The Center Square couldn’t reach the city of San Diego for comment.
Breen said Roger Lopez v. City of San Diego is one of many cases TMS is working on in California.
Thomas More Society attorneys are also appealing a U.S. district court judge’s decision to decline a preliminary injunction for pro-life center Culture of Life Family Services and seeking to block what the not-for-profit law firm calls California Attorney General Rob Bonta’s attacks on pro-life pregnancy center’s speech about Abortion Pill Reversal.
The Thomas More Society usually wins its cases and hopes it can prevail in the controversy over San Diego’s buffer zones, Breen said.
“When you look at it, there is no other area of society where you would accept a restriction on core free speech on the public sidewalks except in this abortion context and so that needs to be reversed,” he said. “We are confident that we are right in this, and the Supreme Court has already cast doubt on the constitutionality of the buffer zones.”
