AUGUSTA, Maine — A bill in the Maine Legislature aims to prevent anti-abortion protesters from demonstrating directly outside of clinics, while avoiding legal challenges that threatened a similar effort in Portland nearly a decade ago.
The bill, sponsored by Rep. Jay McCreight, D-Harpswell, would allow any health care provider to establish a “medical safety zone” within 8 feet of its doors and make it a misdemeanor for people to linger with some exceptions. It would make Maine the fourth state with a law on the books to limit protests within a certain distance of a clinic’s doors, according to the pro-abortion rights Guttmacher Institute.
While it would apply to any hospital or clinic, a legislative hearing this week focused almost entirely on abortion providers. Most notable among them is the Planned Parenthood clinic on Congress Street in downtown Portland that is often the subject of anti-abortion protests.
The city briefly enacted a larger buffer around its entrance in 2013, but repealed it less than a year later after a similar law in Massachusetts was overturned. The bill is another attempt by Maine Democrats to ease abortion access while many courts and state legislatures are restricting it. But they must balance free-speech issues that have plagued buffers in the past.
“For 10 years, protesters have harassed and intimidated [Planned Parenthood] patients and staff in ways that have impacted patient care and threatened the health and safety of patients and staff,” said Nicole Clegg, senior vice president of public affairs at Planned Parenthood of Northern New England. “A medical safety zone will make it safer for staff to go to work and patients to receive care.”
The 8-foot threshold is significant. In 2014, the U.S. Supreme Court unanimously struck down a Massachusetts law requiring protesters to stay at least 35 feet away from abortion clinics, saying it violated free speech protections in the First Amendment. That led Portland to repeal a 39-foot buffer it had enacted the previous year that was facing legal challenges.
The bill’s proponents suggest this distance might not face the same problems. The Supreme Court’s ruling was relatively narrow and did not overturn a 2000 decision upholding a Colorado law that made it a misdemeanor to come within 8 feet of someone entering or leaving a health clinic, ruling the distance left “ample room to communicate through speech.”
“An 8-foot buffer zone is an appropriate response that balances the rights of protesters with the rights of people seeking health care,” Meagan Sway, policy director of the ACLU of Maine, said in testimony this week. She spoke in favor of several provisions of the bill but called for lawmakers to consider making a violation a civil penalty rather than a criminal one.
There are recent examples of similar municipal ordinances that have been upheld. The Supreme Court declined to take a case last year on a Pittsburgh ordinance establishing a 15-foot buffer zone in front of abortion clinics in the city, Courthouse News reported.
Louisville, Kentucky, enacted an ordinance last year establishing a 10-foot buffer zone in front of the state’s only licensed abortion clinic. A federal judge refused to block the ordinance in September, and a district court upheld that ruling earlier this week, Bloomberg Law reported.
The bill is opposed by the evangelical Christian Civic League of Maine. In testimony submitted to the Legislature, the anti-abortion group’s policy director, Mike McClellan, characterized it as “one more attempt to entice women into an abortion clinic by eliminating the last line of defense” that prevents women from getting abortions.
McClellan said in an interview he was not optimistic that the Democratic-led Legislature would reject the bill, which has a work session scheduled for next week. But he suggested it could still face legal challenges if it ultimately passes.
“I think it certainly would be a constitutional issue, telling people what they could and couldn’t do,” he said.