June 23, 2018
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Protesters want court to strike down Portland’s abortion clinic buffer zone until case is resolved

Troy R. Bennett | BDN
Troy R. Bennett | BDN
File photo of Planned Parenthood's controversial buffer zone sign in Portland.
By Seth Koenig, BDN Staff

PORTLAND, Maine — A group of anti-abortion demonstrators who filed a legal challenge to Portland’s no-protest zone around the city’s Planned Parenthood clinic is urging a federal judge to nullify the buffer rule until the lawsuit runs its course.

The two parties will offer oral arguments on the protesters’ motion for a preliminary injunction on Thursday afternoon before U.S. District Judge Nancy Torresen.

The Portland case is playing out as the country awaits a ruling from the U.S. Supreme Court on the legality of a similar buffer zone around Massachusetts abortion clinics.

The country’s highest court is expected to issue its decision on the high-profile case within the next three weeks, and that higher court ruling could have significant ramifications for the Portland lawsuit.

In her response to the protesters’ motion for an injunction, city attorney Trish McAllister based much of her argument on the precedent set by the Massachusetts buffer zone — which was deemed legally enforceable by the U.S. 1st Circuit Court of Appeals but could be thrown out or weakened by the Supreme Court any day now.

If the country’s top court overturns the lower court decision, it would likely undermine the city of Portland’s defense of its own buffer zone.

“The 1st Circuit upheld the district court decision … rejecting the claim that the Massachusetts law was unconstitutional as applied,” McAllister said in the city’s response to the motion. “Until and unless the U.S. Supreme Court overturns this decision by the First Circuit, this conclusion is the law that should be applied to the current dispute over Portland’s nearly identical ordinance and factual situation.”

The Massachusetts case McCullen v. Coakley is over a state law establishing a 35-foot no-protest zone around abortion clinics in the Bay State.

As in that case, the Portland demonstrators — evangelical Shapleigh couple Daniel and Marguerite Fitzgerald, two of their seven children and Richmond resident Leslie Sneddon are the plaintiffs in the lawsuit — are claiming the city’s 39-foot buffer around Planned Parenthood’s 443 Congress St. location infringes on their constitutionally protected freedom of speech.

The plaintiffs name the city of Portland, Mayor Michael Brennan and all eight other city councilors as defendants in their lawsuit.

In November, the Portland City Council unanimously approved the 39-foot buffer to push back demonstrators who had been gathering weekly outside 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.

One Planned Parenthood patient told the council in November that 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.

But 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 the activity is protected speech as defined by the First Amendment.

In addition to Massachusetts, Colorado and Montana have statewide abortion clinic buffer zone laws. Many municipalities across the country, including Portland and Burlington, Vermont, have local ordinances that established such buffer zones.

Activists on both sides of the abortion issue also are awaiting the U.S. Supreme Court’s ruling on the case of a retail craft store chain, Hobby Lobby, which is arguing its corporate religious beliefs should exempt it from contraceptive health insurance coverage for female employees.

If the court rules in favor of Hobby Lobby, it would create a precedent by which corporations could refuse to offer insurance that covers abortion procedures.

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