September 24, 2017
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Judge rules in favor of Maine abortion protester

By Judy Harrison, BDN Staff
Updated:
BDN File | BDN
BDN File | BDN
A man, who refused to give his name, preaches loudly against abortion outside Planned Parenthood on Congress Street in Portland, Nov. 13, 2015.

PORTLAND, Maine — A federal judge Monday ordered police to stop enforcing a state law intended to protect women receiving reproductive services from the shouts of abortion protesters outside.

U.S. District Judge Nancy Torresen granted a motion for a preliminary injunction sought by Andrew March of Lewiston.

March is the pastor and co-founder of a Lewiston church called Cell 53, Torresen wrote in her 35-page decision. March often voices his opposition to abortion outside the Planned Parenthood Portland Health Center on Congress Street in downtown Portland.

“This case presents the difficult question of whether a state law, [passed in 1995 as an amendment to the Maine Human Rights Act], providing protection to women seeking access to constitutionally protected health care violates the First Amendment rights of an individual who wishes to voice his opposition to abortion on a public sidewalk,” Torresen wrote. “I conclude that it does.”

Torresen stopped short of declaring the so-called noise provision of the Maine Human Rights Act unconstitutional but wrote that it is “likely unconstitutional.” The next step in the lawsuit most likely would be for the judge to decide the constitutionality of that section of the law.

March sued Maine Attorney General Janet Mills, the city of Portland and several Portland police officers in December 2015, after local police told him he could not shout his protests from the street at the clinic.

“YES. Another victory for the people,” March’s attorney, Stephen Whiting of Portland, said Monday in an email.

Jessica Grondin, spokeswoman for the city of Portland, referred questions about the case to the Maine attorney general’s office.

Timothy Feeley, spokesman for the Maine attorney general’s office, said that Mills will consider appealing Torresen’s decision to the 1st U.S. Circuit Court of Appeals in Boston.

“It is the attorney general’s responsibility to defend the constitutionality of state statutes whenever reasonably appropriate,” he said Monday in an email. “The office continues to believe that this statute, carefully drafted and supported by diverse interest groups, is a reasonable accommodation of free speech.”

Torresen said lawmakers and law enforcement officials “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.

“And the defendants are free to pass content-neutral legislation that can achieve the goal of a peaceful environment for people receiving health care,” she wrote. “While I understand the defendants’ frustration with the shifting sands of First Amendment jurisprudence, avenues are still open to protect the interests on both sides of this debate.”

Torresen’s decision is the latest chapter in the legal battle over Portland’s failed attempt in 2013 to impose a 39-foot buffer zone around the Planned Parenthood clinic. That ordinance was challenged in U.S. District Court on the grounds that it violated protesters’ constitutional rights.

The city rescinded the buffer zone ordinance in June 2014 after the U.S. Supreme Court ruled unconstitutional a similar buffer zone that had been implemented in Massachusetts.

Whiting also said Monday that Torresen’s ruling most likely would put an end to a lawsuit pending in Cumberland County over a Lisbon man’s protests outside the Congress Street clinic. The attorney general’s office sued Brian Ingalls of Lisbon, who is listed as an elder at March’s church, in November 2015.

In March, Superior Court Justice Lance Walker refused to dismiss the case but also said that “it is possible that enforcement against a person in a particular situation could be invalid on an as-applied basis.” The judge said he would allow Ingalls’ attorneys the opportunity to show that the act “has been enforced selectively in a viewpoint discriminatory against Mr. Ingalls.”

The suit sought to keep Ingalls from coming within 50 feet of the Portland clinic, to declare that he had violated the Maine Human Rights Act and to impose on Ingalls a $5,000 civil penalty for violating its noise provision.

“I think this is effectively the end of the state’s case against Mr. Ingalls,” Whiting said. “How can he be fined for violating a statute that [in essence] has been declared unconstitutional?”


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