Evangelical Shapleigh couple, children sue Portland over abortion clinic buffer zone

Abortion rights protesters gather near Planned Parenthood on Congress Street in Portland on Friday, Jan. 4, 2013.
Noah Hurowitz
Abortion rights protesters gather near Planned Parenthood on Congress Street in Portland on Friday, Jan. 4, 2013.
Posted Feb. 13, 2014, at 5:45 a.m.
Last modified Feb. 13, 2014, at 2:51 p.m.

PORTLAND, Maine — An Evangelical Shapleigh couple and two of their seven children are challenging a Portland city ordinance preventing protests within 39 feet of an abortion clinic, arguing in a lawsuit filed Wednesday the buffer zone is an infringement on their constitutional right to free speech.

The lawsuit was filed in U.S. District court the same day as the city was dealt a defeat in another federal First Amendment case. U.S. District Court Justice George Z. Singal ruled on Wednesday that the city overstepped its bounds and unnecessarily curbed the free-speech rights of panhandlers and political activists when it passed an ordinance prohibiting people from standing in median strips.

Demonstrators upset about the Portland buffer zone hope they’ll get a similar ruling in their case — which comes about a month after the U.S. Supreme Court heard arguments in a comparable legal dispute over 35-foot bubbles around Massachusetts abortion clinics.

Leaders of Planned Parenthood of Northern New England, which operates the 443 Congress St. clinic at the heart of the Portland ordinance, had been watching the Supreme Court case closely, expecting that the high court’s ruling would either cement a precedent in favor of such buffer zones or cast them as vulnerable to legal challenge.

But Shapleigh couple Daniel and Marguerite Fitzgerald, in their own right and on behalf of two of their seven children, sued the city on Wednesday without waiting for a Supreme Court precedent to cast a shadow one way or the other over the Portland case.

The Fitzgeralds described themselves in their lawsuit as Evangelicals who are raising their children in the faith. They name the city of Portland, Mayor Michael Brennan and each of the other eight city councilors by name as defendants.

In November, the City Council unanimously approved the 39-foot buffer to push back demonstrators who had been gathering weekly outside the Planned Parenthood for about a year to protest against abortion. The bubble effectively forces the demonstrators to gather across Congress Street from the clinic.

Planned Parenthood representatives argued before the council that patients, many of whom were not going to the clinic to seek abortions, felt harassed and intimidated by the protesters, and the buffer zone was necessary to preserve those patents’ legally protected rights to access health care.

Protesters, some of whom represented the group Pro-Life Missionaries of Maine, countered that their behavior was being blown out of proportion, that the lack of any arrests from the regular demonstrations showed that they’d been peaceful and law-abiding, and that the activity is protected speech as defined by the First Amendment.

In their lawsuit, the Fitzgeralds reiterate many of those same arguments.

“[The Fitzgeralds] are faithful Evangelicals motivated to oppose the practice of abortion because of their religious beliefs that abortion is the deliberate destruction of innocent human life,” their attorney, Stephen Whiting, wrote in his complaint. “[They] peacefully pass out literature and Bible tracts in accordance with their faith and in efforts to counsel women seeking abortions. Prior to the ordinance, [they] regularly provided information to women about abortion alternatives, assistance and support to persons entering and/or exiting the facility.”

The Fitzgeralds go on to argue that individuals stop within the buffer zone to socialize, smoke cigarettes or — on at least one occasion — demonstrate in support of the clinic, and that those activities could be difficult to legally differentiate from what they wanted to do in that same space.

“Because a police officer cannot know with certainty whether a person is using a public sidewalk or street ‘solely’ for the purpose of reaching a destination other than a reproductive health care facility, the ordinance authorizes and encourages arbitrary and discriminatory enforcement,” the lawsuit reads, in part.

Backing the lawsuit is the Michigan-based Thomas More Law Center, which describes itself as a defender of “America’s Judeo-Christian heritage and moral values, including the religious freedom of Christians, time-honored family values and the sanctity of human life.”

“The Fitzgerald family peacefully informs women entering the clinic of their options, including their choice not to abort their child. This ordinance makes it impossible for women considering abortion to hear what other options and support they have and forces people, like the Fitzgerald family, to stand on the opposite side of the street from these women, beyond earshot,” law center attorney Erin Mersino said in a Thursday morning statement.

“The ordinance not only prohibits the Fitzgeralds’ peaceful sidewalk counseling, but it also has the un-American effect of banning those with the same viewpoint as the Fitzgeralds from a large stretch of the public sidewalk,” she continued.

Portland city attorney Danielle West-Chuhta told the Bangor Daily News on Thursday morning she had not been officially served with the lawsuit yet and had no comment on it.

Planned Parenthood of Northern New England spokeswoman Nicole Clegg said Thursday in a statement that the organization hopes the federal court will rule in favor of “protecting women’s right to access to abortion services and other health care without intimidation, harassment or obstruction.”

She also reiterated that similar buffer zones exist around polling places to prevent voter harassment and around the U.S. Supreme Court itself.

“We still experience regular protesters at our health center, and they are still able to get their message out,” Clegg said. “What is different today is that we no longer see the sort of harassment and intimidation we saw prior to the ordinance.”

One Planned Parenthood patient told the council in November a demonstrator told her he would “bound me at the knees and lower me into a lake of fire,” and on another occasion, that he would “wipe that smile off my face.”

The nonprofit Planned Parenthood has been a target of anti-abortion activists nationwide because of the organization’s advocacy for reproductive rights.

“Ultimately, decisions about whether to choose adoption, end a pregnancy, or raise a child must be left to a woman with the counsel of her family, her faith, her doctor or health care provider, and anyone else whose advice she seeks in making the best decision for her health and well-being. No one should be forced to endure intimidation or harassment from strangers on the way to a doctor’s visit,” said Clegg. “I hope the court will agree that this ordinance strikes the right balance between the rights of women to access health care, the city’s interest in protecting public safety, and the free speech rights of all Portland residents.”

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