PORTLAND, Maine — Portland’s repeal of the 39-foot no-protest zone around the city’s only abortion clinic won’t likely end the legal drama over restriction of anti-abortion demonstrators in the area.
Erin Kuenzig, attorney for the Thomas More Law Center representing a group of anti-abortion demonstrators who sued the city over the buffer zone, said her clients plan to continue pursuing their case in federal court — in part, to send a message that the city shouldn’t try any other buffer zone ideas, either.
But while the Portland city councilors on Monday night went through what was considered a legal formality by repealing their buffer zone — after the U.S. Supreme Court struck down similar zones in Massachusetts last month — they didn’t shrink away from Kuenzig’s challenge, either.
The councilors declared that they would seek alternatives to the now-defunct buffer zone, just hours after the attorney for the protesters declared they could be taken right back in court for doing so.
In the high-profile McCullen v. Coakley case, the U.S. Supreme Court ruled last month that a Massachusetts abortion clinic buffer zone similar to Portland’s infringed on protesters’ rights to free speech and was unconstitutional.
On Monday night, the Portland City Council voted 7-1, with Councilor Jill Duson in dissent and John Coyne absent, to repeal its own buffer zone in what was largely seen as a preemptive measure.
U.S. District Court Judge Nancy Torresen, presiding over the local challenge, told attorneys from both sides she would likely take her cues from the Supreme Court on the matter, and would be expected to similarly find the Portland buffer zone unconstitutional based on the higher court precedent.
However, that’s not where the city council is leaving it. Based on a motion by Duson, the council’s public safety subcommittee has now been charged with coming up with alternatives to the buffer zone and reporting back with new options in September.
“It’s a legal bump in the road,” said Councilor Cheryl Leeman. “We’re not going to let go of this issue. We’re just going to recraft it so that hopefully will pass legal muster.”
But some members of the public urged the council to try to fight for its buffer zone despite the Massachusetts precedent.
“Right now, our buffer zone is protected as long as you guys don’t repeal it,” said Norway-based crisis counselor Lynne Schmidt, who told the council on Monday night she’s had an abortion. “These are harmful people. They’re harmful to the mental health of these women trying to access this building, and they’re harmful to the escorts who have to buffer the patients from them.”
Kuenzig said Monday night’s repeal wouldn’t prevent the city from having to face her in court anyway, at least if her side has any say in the matter.
“Our case will not be nullified if the city repeals the ordinance. We will still pursue an order from the court seeking a judgment declaring that the city violated the First Amendment rights of the plaintiffs,” she told the Bangor Daily News on Monday. “Such an order would hopefully address the city’s actions in light of the Supreme Court’s recent decision in McCullen v. Coakley, and could possibly influence the council to refrain from enacting another ordinance in the future that unnecessarily infringes the fundamental constitutional rights of citizens.”
If such a proposed legal scolding doesn’t prevent the city from pursuing another way to push protesters back from the clinic and its patients, Kuenzig said her Michigan-based firm will be back to fight Portland City Hall again.
“The Thomas More Law Center is a national nonprofit law firm that seeks to protect the First Amendment rights of American citizens,” she said. “Should the city enact another law that similarly violates the constitutional rights that define our country, the Thomas More Law Center will not hesitate to lead the fight against such action.”
Planned Parenthood of Northern New England, which runs the 443 Congress St. clinic previously surrounded by the no-protest zone, has in contrast urged the city council to find another way to keep anti-abortion protesters away from its patients.
Nicole Clegg, vice president of public policy for the organization, said in a Monday news release she “will urge councilors to remain vigilant on the issue and quickly pursue any alternative proposals that will mitigate the harassment and intimidation patients experience walking through the gauntlet of protesters.”
The Supreme Court’s recent ruling did not invalidate a Colorado law that places floating eight-foot buffer zones around patients coming and going from abortion clinics there, but in an interview with the BDN last week, constitutional law expert Dmitry Bam of the University of Maine School of Law warned that it could be in jeopardy soon.
“I don’t think there are five votes [of the nine Supreme Court justices] to uphold [the Colorado law] today,” he said.
Kuenzig has argued in court — and reiterated Monday — that the city can enforce already standing laws preventing street harassment and disorderly conduct to ensure patient safety, but that pushing demonstrators 39 feet away prevents them from having peaceful conversations with patients about alternatives to abortion.
“All that this [buffer zone] ordinance does is ensure that women entering the city’s abortion clinic only hear one voice in a moment of crisis, and that voice comes from Planned Parenthood — the largest abortion provider in America,” Kuenzig said.
But Planned Parenthood representatives and patients have told the city council they didn’t feel the demonstrators were interested in peaceful conversations, and the no-protest zone was necessary to preserve patients’ legally protected rights to access healthcare.
“The reason the buffer zone was necessary in the first place was because of the routine harassment, bullying, and intimidation of patients and staff by protesters,” Clegg said in a Monday statement. “Since the buffer zone took effect, the atmosphere has been far less hostile, and more of a peaceful coexistence.”