PORTLAND, Maine — A City Council subcommittee delayed its decision on whether to seek alternatives to an abortion clinic buffer zone after attorneys advised that there’s little the city could do that would survive a legal challenge.
But while the city’s hands may be tied from a legal perspective, city attorney Trish McAllister said the city’s only abortion clinic operators may have a legal pathway to push away protesters that Portland didn’t have.
The council’s Public Safety, Health and Human Services Committee opted at its Tuesday night meeting to take another month to meet with Planned Parenthood officials and the state attorney general’s office, and analyze laws in New York and Massachusetts that seek to give abortion clinic patients space from protesters.
That came after McAllister told the panel other alternatives, such as a smaller no-protest zone or floating buffer zones, likely would be thrown out by courts or difficult to enforce.
“I’m not confident any of the options in front of us would survive a legal challenge,” said Ed Suslovic, committee chairman and a city councilor.
McAllister told members of the committee that they should steer clear of any new restrictions on anti-abortion protesters after a U.S. Supreme Court ruling threatened such measures nationwide.
“Any type of regulation, beyond what’s already in place, could affect speech somehow,” McAllister said. “Right now fixed buffer zones, if they’re established by the government, are highly suspect.”
But while any city effort to restrict protesters would be vulnerable to legal challenges, McAllister said, abortion clinic operators or patients might have more luck convincing a judge that demonstrators are infringing on civil health care rights.
In that way, she said, Planned Parenthood could seek a court order pushing the protesters back using a legal argument the city couldn’t as effectively invoke.
The demonstrators have been gathering outside the 443 Congress St. Planned Parenthood clinic for more than a year.
Clinic representatives and patients have repeatedly described the protesters as harassing and intimidating, and pushed for the no-protest zone that city councilors ultimately approved last November.
The demonstrators have countered all along that claims of misbehavior have been overblown, that they are peacefully suggesting to patients that there are alternatives to getting abortions and that the police record — which shows no arrests resulting from their activities — proves their conduct is appropriate.
The U.S. Supreme Court ruled in June that a 35-foot no-protest zone around abortion clinics in Massachusetts was an unconstitutional infringement on demonstrators’ free speech rights.
Seeing the writing on the wall, the Portland City Council then repealed its similar 39-foot buffer zone at its next regular meeting in early July before the court could do it. But the council also charged its subcommittee with finding an alternative way to keep the protesters and patients separated that could pass muster in the courts.
Erin Kuenzig is an attorney with the Michigan-based Thomas More Law Center who represented a group of anti-abortion demonstrators in a lawsuit that challenged Portland’s buffer zone.
She made clear at the time of the city’s repeal that her firm would be watching closely if an alternative measure was passed, and would be quick to sue Portland again if necessary.
“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,” Kuenzig said.
In a memo to the public safety committee members before their Tuesday night meeting, McAllister wrote that the city has a number of alternatives to the 39-foot buffer zone effectively nullified by the Supreme Court.
McAllister told the committee members they could pursue a smaller buffer zone — approximately 6 to 8 feet from the side of the building — that could eliminate one side of what has become a two-sided gauntlet of demonstrators along the sidewalk leading to Planned Parenthood’s front door. Another option could be floating buffer zones, requiring protesters to stay at least 8 feet from any pedestrian passing through the area, as the state of Colorado has done.
But McAllister said those options would be vulnerable to another legal challenge or — in the case of the floating buffer zones — “create as many problems [in terms of enforcement] as it addresses.”
The attorney said she reviewed the slate of possible new restrictions with interim City Manager Sheila Hill-Christian, Police Chief Michael Sauschuck and corporation counsel Danielle West-Chuhta.
“All agree that given the [Supreme Court ruling], as well as the current status of protests at this single facility, the city should not pursue passage of any new regulations at this time,” McAllister wrote. “This is particularly true given the potential of another lengthy legal battle, and considering our current legal expenses and pending budget challenges.”
She said the city could get away with lobbying the Maine Legislature to expand state civil rights laws to more aggressively protect patients’ access to health care and allow municipal police to enforce those rules. The committee informally decided to pass that recommendation along to the council’s Legislative Committee, which shares two members — Suslovic and Jill Duson — with the public safety committee.
“I think there are some compelling arguments that any government regulation curtailing free speech is going to get us a lawsuit,” said committee member and City Councilor Cheryl Leeman. “For me right now, the best thing to do would be to continue to monitor the situation and case law.”
