PORTLAND, Maine — Until Thursday, federal case law in the United States had largely reinforced the city of Portland’s argument that it could legally force anti-abortion protesters to stay at least 39 feet away from the city’s Planned Parenthood clinic.
But on Thursday, the U.S. Supreme Court unanimously struck down a similar Massachusetts abortion clinic buffer zone in the case of McCullen v. Coakley.
As recently as last week, U.S. District Court Judge Nancy Torresen, presiding over a lawsuit to throw out Portland’s no-protest zone, admitted that the Massachusetts case was the “elephant in the room” — that a precedent set by the Supreme Court in that case would likely influence the trajectory of the local one.
“I’m hoping we get some clear guidance [from the Supreme Court],” Torresen told attorneys during a June 19 hearing on the Portland buffer zone case.
Soon after the Supreme Court decision was announced, lawyers for the plaintiffs in the Portland case filed a notice citing the high court’s ruling as grounds to remove the 39-foot buffer zone that has kept anti-abortion protesters at a distance from the Planned Parenthood clinic in Maine’s largest city since November 2013.
City officials, in turn, said they will await word from Torresen before deciding on any future action.
“We need to conduct a review of the Supreme Court’s ruling to examine how it will apply to our buffer zone ordinance here in Portland,” said city spokeswoman Jessica Grondin. “In regards to our pending legal case, we will wait to hear from the court to see what the next steps are.”
The arguments forwarded by challengers of the Massachusetts law were similar to those being used by plaintiffs in the Portland case: That the buffer zone pushes anti-abortion demonstrators so far away that they can’t engage in conversations or hand out leaflets to patients, effectively cutting off their access to their intended audience.
Chief Justice John Roberts wrote in the Supreme Court’s majority opinion that the state of Massachusetts had “too readily foregone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage.”
The plaintiffs in the Portland case — evangelical Shapleigh couple Daniel and Marguerite Fitzgerald, two of their seven children and Richmond resident Leslie Sneddon — are claiming the city’s 39-foot buffer similarly infringes on their constitutionally protected freedom of speech.
Erin Keunzig, a lawyer with the Michigan-based Thomas More Law Center, which represents Sneddon and the Fitzgeralds, heralded Thursday’s decision as a signal that Portland’s buffer zone would soon be struck down.
“With today’s Supreme Court decision, I am confident that Ms. Sneddon and the Fitzgeralds will soon be able to continue their loving message with information and counseling about abortion alternatives without fear of arrest to women who may be contemplating abortion,” she said in a news release.
The city of Portland, Mayor Michael Brennan and all eight other city councilors are named as defendants in their lawsuit.
In November, the City Council unanimously approved the buffer to push back demonstrators who had been gathering weekly outside Planned Parenthood for about a year to protest against abortion.
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 patients’ legally protected rights to access health care.
Nicole Clegg, spokeswoman for Planned Parenthood of Northern New England, said the Supreme Court’s decision “shows a disregard for the safety of patients and staff entering reproductive health centers “
She said protesters continue to talk to people going to the Portland clinic for services.
“What is different since the buffer zone has been enacted is that we no longer see the sort of harassment and intimidation we saw previously,” she said in a prepared statement.
Portland attorneys have argued in court that the city’s buffer zone represents an appropriate balance between the protesters’ rights to free speech and the patients’ rights to medical care.
City attorney Trish McAllister in her court filings leaned on the precedent upholding the legality of abortion clinic buffer zones set by the U.S. 1st Circuit Court of Appeals in the McCullen case, writing that “until … 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.”
On Thursday, the U.S. Supreme Court overturned that 1st Circuit decision. But because the high court did not overturn a 2000 precedent, Hill v. Colorado, which upheld a buffer-zone law in Colorado, Thursday’s decision creates uncertainty about whether states and municipalities can enforce less restrictive buffer zones than were allowed in Massachusetts and opens a new set of questions about whether Portland will be able to continue to enforce its buffer zone around the Planned Parenthood clinic.
Kuenzig, the attorney representing anti-abortion protesters who gather in Portland, offered her interpretation of how the Supreme Court would answer those questions.
“This is a clear message to other states and municipalities that they may not take the extreme step of closing a substantial portion of a traditional public forum to all speakers simply because this extreme step would be easier than enforcing other less restrictive laws that already exist,” she said. “The First Amendment deserves greater protection.”