By Patrick B. Craine

SAN FRANCISCO, California, August 4, 2009 ( – A federal judge ruled yesterday that the City of Oakland's 2008 'bubble' ordinance, which prohibits pro-life protesters outside abortion facilities from standing within 8 feet of women seeking abortions, is constitutional.

The law was enacted in response to the efforts of Baptist Rev. Walter Hoye, 52, who has protested for several years outside the Oakland abortion mill, Family Planning Specialists Medical Group. Hoye would approach women to offer alternatives to abortion. He was fined and jailed for 18 days this March and April for breaching the law.

In a federal lawsuit, Hoye argued that the law violated his free-speech rights and the Constitution's equal protection clause.

U.S. District Judge Charles R. Breyer, however, found that the law's content was neutral and that it had been appropriately applied by the police who arrested Hoye.  He said the law protects access to healthcare, while also allowing protesters to express their opinion.

While Hoye “appears to take a relatively mild-mannered approach to demonstrating,” the judge said, not all protesters would necessarily follow his example.

“I am horribly disappointed,” commented Hoye, who has vowed to continue his pro-life witness.

One of his lawyers, Michael Millen of the Life Legal Defense Foundation (LLDF), has announced their intention to appeal the ruling.  “My reaction is, 'We'll see you in the Ninth Circuit,' ” Millen said, referring to the federal appellate court.  “It is now illegal to stand still on the sidewalk and extend your arm to hand out a piece of literature,” he said.  “I don't think the Ninth Circuit is going to buy it.”

“Mark this day down,” he commented in a press release today.  “On this day, a federal court judge ruled that it is constitutional to put someone in jail for a year for holding out a hand with a leaflet.”

“While disappointing, this ruling is not entirely unexpected,” he continued.  “The good news is that while San Francisco federal judges may be loathe to strike down clearly unconstitutional city ordinances, the Ninth Circuit has an admirable record of supporting free speech rights. We are optimistic that this wrong will be righted.”

Meanwhile, the district attorney has announced that he will be seeking to permanently ban Hoye from coming within 100 feet of the abortion facility. Hoye is currently appealing a three-year probation that requires him to stay 100 feet away.

“The District Attorney is now arguing the standard pro-abort line,” said Catherine Short of LLDF. “They are arguing that Rev. Hoye should be banned from ever going to the clinic because his mere presence could upset some women. They have abandoned any pretense of 'seeking justice,' which is the prosecutor's duty. This is now blatantly ideological.”

“The District Attorney's office has spent and is spending an unprecedented amount of time and effort on this,” she continued. “Nobody over there is sitting around with time on his hands, wondering what to do today. So the question is: who decided that keeping Rev. Hoye from offering help to women was more important than prosecuting other cases? And why?”

See related coverage:

Jailed Pastor Hoye Thanks Supporters Following Release and Vows Continued Pro-Life Witness

African American Pastor Sent to Jail for Offering Abortion Alternatives on Public Sidewalk