Wednesday, November 20, 2013

Balancing Rights: Council protects clinic patients, invites lawsuit

Published in the Portland Phoenix

On Monday evening, the Portland City Council voted unanimously to create the state’s first limited-speech buffer zone around a reproductive health-care facility, for the purpose of protecting patients at the Planned Parenthood of Northern New England clinic at 443 Congress Street from intimidation by anti-abortion protesters. The ordinance includes a last-minute amendment allowing it to take effect immediately.
The decision invites a legal challenge, such as those that have been brought against other states’ and towns’ buffer zones; a case before the US Supreme Court’s current session will test a very similar Massachusetts law.
Abortion opponents began demonstrating outside the PPNNE clinic last fall, after its move downtown from a Forest Avenue location that was never a site of significant or sustained protests. The new space’s improved access for patients also brought expanded publicity for people who oppose abortion rights, despite the fact that most of the clinic’s patients are not seeking abortions but other services such as birth-control medication, cervical-cancer screenings, and blood tests.
According to written testimony submitted to the council, patients have frequently felt intimidated when attempting to enter the clinic, but they also understand the underlying conflict, between the rights of the protesters to express themselves freely on public sidewalks, and the rights of the patients to have unfettered (and private) access to health-care services.
A woman identified as Jo described her experience entering the clinic on March 22: “I firmly believe in free speech and the free flow of ideas. This crosses the line with vile photos of aborted fetuses and scripture being chanted. The sidewalk is like walking a gauntlet [sic]. This poses an intentionally threatening and intimidating environment, encroaching on my life, liberty, and pursuit of happiness.”
Maine law already prevents protesters from blocking a patient’s path to the door of a clinic, bans threats made toward clinic staff or patients (including by telephone), and outlaws excessive noise aimed at disturbing the occupants of a clinic or health-care facility. PPNNE has hired a Portland police officer to patrol the sidewalk nearby, to help enforce those laws, but problems remain. The buffer zone was proposed as a way to balance the competing rights, keeping protesters away from the entrances to the PPNNE clinic without forcing them so far away that their message would be utterly unable to reach its intended audience.
Decades of strife around Massachusetts reproductive-health clinics led to the 2000 passage of a statewide so-called “floating buffer,” requiring protesters to keep six feet away from patients and staff who are within 18 feet of the clinic entrance. Other states have similar laws; Colorado’s offers broader safety: an eight-foot “floating buffer” within 100 feet of clinic doors.
But a 2007 revision in Massachusetts exchanged the distance-from-people rule for one imposing a “hard” 35-foot buffer around clinic entrances — saying that protesters had to stay that far from clinic doorways and driveways, regardless of their distance from patients and staff.
The Portland ordinance imposes a hard buffer of 39 feet (expanded from an originally proposed 35 feet to prevent small gaps in coverage); effectively, the whole sidewalk around the PPNNE building will be off-limits to protesters, as well as short distances on the sidewalks of Elm and Congress streets beyond the extent of the PPNNE building.
Both supporters and opponents of the hard buffer law say its difference from a floating one is significant. Massachusetts Attorney General Martha Coakley has argued that harassment and intimidation happened despite the previous floating buffer, which was also hard to measure and therefore enforce. (Most people do not want to bring a yardstick to their doctor’s appointments.) Protesters say their desire to simply give information to women approaching the clinics would be made too difficult by the hard buffers.
Another key element of the Massachusetts law, which is also included in Portland’s ordinance, is a specific provision protecting employees or volunteers at the clinic who seek to escort patients to or from the facility.
As described by Stephen Wermeil of SCOTUSblog, buffer-zone opponents claim this “allows viewpoint discrimination: advocates for abortion services may speak within the buffer zone, but anti-abortion protesters may not.” Massachusetts’s response, Wermeil writes, is that the provision “is part of the public safety rationale for the law, so that clinic workers may help women approaching clinics navigate their way past the protesters.”
Protesters suing Massachusetts also argue that the law is too narrow because it does not impact other health-care facilities, and that at three specific clinics in Massachusetts the specific locations have problems that prevent them from presenting their information to patients.
The 1st US Circuit Court of Appeals upheld the Massachusetts law in January; its ruling also applies in Maine. And while the US Supreme Court upheld Colorado’s “floating” buffer-zone law in 2000, the Court is now considering the challenge to Massachusetts’s different restriction; some briefs were filed last week, oral arguments are slated for early 2014, and a decision is expected by the early summer.
Abortion-rights supporters are worried that the addition of Chief Justice John Roberts and Associate Justice Samuel Alito to the Court in the intervening years will tip the balance toward the protesters. If that is the case, Portland councilors were warned by city staff while considering the proposal, the local ordinance would likely be challenged and struck down as well.