PORTLAND, Maine — U.S. District Judge Nancy Torresen heard arguments Thursday that Portland’s abortion clinic buffer zone was either discriminatory against an unpopular viewpoint or necessary to stop hurtful taunts.

Legal arguments from both sides centered on rights. Attorneys for anti-abortion protesters made the case that the buffer zone imposes “viewpoint discrimination” on their clients and infringes on their First Amendment rights to express their opinions. Lawyers defending the city’s buffer zone argued that people going to the Planned Parenthood clinic for medical services have a right to do so without being intimidated.

In the end however, the judge said, the case would likely hinge on what precedent the U.S. Supreme Court sets with its ruling on a challenge to a similar buffer zone in Massachusetts, not what was said in the Portland courtroom.

The country’s highest court did not issue a ruling in the controversial case of McCullen v. Coakley on Thursday as many anticipated, leaving stakeholders in the similar Portland case somewhat in the lurch about how to proceed locally.

The Portland no-protest zone stretches 39 feet from the 443 Congress St. Planned Parenthood clinic, effectively pushing anti-abortion demonstrators across Congress Street from the facility’s primary entrance.

At issue on Thursday was a motion by the plaintiffs for a preliminary injunction, urging Torresen to invalidate the buffer zone at least until the court case runs its course.

The plaintiffs — 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 infringes on their constitutionally protected freedom of speech.

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.

But in court on Thursday, the demonstrators’ attorney, Erin Kuenzig, argued the city could have ensured the safe passage of the clinic’s patients by just enforcing existing laws against disorderly conduct or blocking public ways.

“The city has to show that they have not burdened more speech than is necessary to accomplish their goals,” Kuenzig told reporters outside the court after the hearing.

A similar legal argument was effective in another free speech case against the city earlier this year, when attorneys for a trio of demonstrators and panhandlers argued a Portland ordinance blocking people from standing in median strips was unconstitutional. In that case, U.S. District Court Judge George Z. Singal ruled, in part, that the city could address its concerns about the plaintiffs’ safety without infringing on their free speech rights, by enforcing laws prohibiting them from blocking traffic or acting in an unruly way.

But in the buffer zone case, Torresen suggested it might be less clear that laws previously on the books could solve the problem.

The judge acknowledged that there’s no police record of the anti-abortion protesters doing anything that could be defined as criminal. But she questioned Kuenzig about whether their behavior has been abrasive enough that clinic patients should be afforded insulation from them.

“Where do you draw the line?” Torresen asked Kuenzig. “Is it all the way up to ‘criminal’ that you would define as ‘peaceful’? Where would you put name calling? It’s not really criminal to call somebody a killer or a murderer. Would you call that peaceful?”

Kuenzig told the judge comments such as those “certainly could be conveyed in a peaceful way,” and she argued that the 39-foot distance prevents her clients from “conversing with their fellow citizens” about alternatives to abortion and “conveying a message of hope.”

City attorney Trish McAllister disagreed.

“The plaintiffs’ self-description as ‘peaceful conversationalists’ should in no way overshadow the fact that the environment outside the clinic was intimidating and frightening to many of the patients going to the clinic,” she told Torresen.

But Kuenzig took issue with the testimony of Planned Parenthood patients, which the City Council took into consideration when it passed the ordinance, calling it “hearsay.”

“If the reason they’re feeling harassed or intimidated is that they’re hearing ideas they disagree with, it’s not OK [to restrict the expression of those ideas],” she told Torresen. “That’s viewpoint discrimination.”

Torresen reminded the attorneys that “without a Supreme Court decision on McCullen, the law of the land is the 1st Circuit.

“I don’t think it’s particularly productive to try and predict what the Supreme Court will say about McCullen,” she continued. “If you think you can read the tea leaves on McCullen, I won’t stop you, but I will be using the 1st Circuit [ruling] in my consideration.”

The U.S. 1st Circuit Court of Appeals ruled in the case that a Massachusetts law establishing 35-foot buffer zones around abortion clinics is legally defensible. That decision was appealed to the Supreme Court, which is expected to issue its own precedent-setting ruling on the case within the next few weeks.

“I’m hoping that we get some clear guidance,” Torresen said of the pending Supreme Court decision.


Seth Koenig

Seth has nearly a decade of professional journalism experience and writes about the greater Portland region.