Portland attorneys ask federal judge to reject Planned Parenthood buffer zone challenge, order plaintiffs to pay city’s legal costs

Posted April 29, 2014, at 1:17 p.m.

PORTLAND, Maine — Attorneys for the city are asking a federal judge to uphold a buffer zone established to control anti-abortion protests at the Congress Street offices of Planned Parenthood of New England.

“The actions of the city in adopting the ordinance was a valid exercise of its authority to regulate the use of public space,” city attorneys Danielle West-Chuhta and Trish McAllister wrote in an April 14 response to a lawsuit filed Feb. 14 in U.S. District Court by Shapleigh residents Daniel and Marguerite Fitzgerald.

The Fitzgeralds, who were joined in the lawsuit by Richmond resident Leslie Sneddon on March 10, want the 39-foot buffer zone at 443 Congress St. struck down as a violation of their First and 14th Amendment rights.

The Fitzgeralds also included two of their children as plaintiffs while naming the city, Mayor Michael Brennan and the entire City Council as defendants.

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City attorneys claim “the city councilors are entitled to individual qualified immunity from liability,” and added “the plaintiffs failed to exhaust their administrative remedies” before filing the federal lawsuit. The city also is seeking to have its legal costs reimbursed.

The plaintiffs protested on Friday mornings in front of the clinic for about 18 months until councilors unanimously enacted the buffer zone as emergency legislation last Nov. 18.

They charged the ordinance is “an unconstitutional regulation designed and intended to ban virtually all citizens from engaging in fundamental rights and liberties on significant portions of public sidewalks and streets adjacent to abortion clinics. It essentially and unlawfully privatizes public ways held in the public trust for use by all citizens.”

In joining the suit, Sneddon, Maine director for the California-based anti-abortion group Center for Bio-Ethical Reform, said she “counsels on the public sidewalk as part of her Christian ministry and out of a calling to treat her neighbors as thyself and always with compassion.”

Complaints about how Sneddon, the Fitzgeralds and other anti-abortion protesters approached women going to Planned Parenthood led the City Council to create the buffer zone. It is modeled on, among others, a 2007 Massachusetts law that set a 35-foot buffer for protests in front of health care facilities performing abortions.

What Sneddon and the Fitzgeralds called “counseling” was considered harassment by Planned Parenthood officials and at least one neighboring businessman. Last August, Planned Parenthood organizer Eric Covey said a survey of 170 patients showed a “vast majority” of responses indicated patients felt intimidated or threatened by the protesters.

Mike Fink, who owned a restaurant near the entrance to Planned Parenthood, blamed protesters and the graphic signs they carried for the loss of business that led him to close.

Sneddon also claimed the buffer zone prevented her from counseling women after they left the building.

“Plaintiffs’ experience has been that counseling is effective when offered to the recipient in a normal conversational tone and in a friendly and gentle manner. This requires plaintiffs to stand near the path of pedestrians,” the suit said.

The plaintiffs also accuse the city of selective enforcement of the buffer zone, either by allowing building employees to gather near the front doors, and claiming an instance where “a woman carrying a sign with a ‘pro-choice’ message” was allowed to enter and stand in the zone without being warned or cited.

 

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