The Portland City Council tonight is expected to repeal an ordinance that allows for a protest-free buffer zone around a downtown health clinic that provides abortions.
The move comes in response to a recent U.S. Supreme Court ruling that struck down a similar buffer zone law in Massachusetts. Abortion rights advocates are hoping to find an alternative, but that could prove challenging because of a pending legal case against Portland's ordinance.
Two signs mark the 39-foot buffer zone on the busy city sidewalk outside of Planned Parenthood's doors in Portland. It was about two years ago that abortion protesters regularly congregated outside the clinic to convince would-be abortion patients to reconsider.
City Councilor David Marshall says the buffer zone was created by a city ordinance last November, after looking to a neighboring state for guidance. "The approach that we used was modeled after Massachusetts," Marshall says, "and that's what was struck down by the Supreme Court."
And that's why the Portland City Council is considering whether to repeal its buffer zone ordinance. "I think, at this point, it's pretty clear that the repeal of the buffer zone is probably the direction we will most likely move in," says Portland Mayor Michael Brennan.
Brennan says the city will consider alternatives, such as a New York City ordinance that prohibits people from following and harassing others within 15 feet of a reproductive health care facility.
Nicole Clegg, a spokesperson for Planned Parenthood, says it will be a challenge to create something as effective as the buffer zone to balance the needs of both patients and protesters.
"I'm not under any illusion that it will be as peaceful as it was before with the buffer zone," Clegg says. "But certainly, our hope is there are ways to mitgate the harassment our patients' experience."
Many other states and cities are still evaluating what impact the Supreme Court decision will have on local buffer zone laws. But Portland Mayor Michael Brennan says the city is acting quickly because it's facing a legal challenge against the ordinance.
"It's fairly certain that the judge is going to rule against us, and so by taking this action, it would potentially prevent the court from taking direct action making a decision," Brennan says.
"The lawsuit would continue," says Attorney Erin Kuenzig, of the Thomas More Law Center in Michigan. Kuenzig represents Maine activists who are challenging Portland's buffer zone. Their lawsuit seeks an injunction to stop enforcement of the ordinance, as well as a declaration that the ordinance violates the First Amendment.
"I think it would signal to the City Council in considering any future legislation that might attempt to restrict First Amendment rights without considering any other alternatives that are available to it," Kuenzig says.
Kuenzig says the buffer zone is unnecessary in Portland because there hasn't been a single criminal incident involving abortion protesters. She points out Portland can enforce existing laws that protect patients.
"There's already laws that prohibit harassment, and criminal laws that prohibit assault of battery or anything like that where the city would claim that there's a safety issue involved here," Kuenzig says.
There's also the federal FACE law, which makes it a crime to interfere with access to a reproductive health clinic. Planned Parenthood's Nicole Clegg says those laws prohibit criminal behavior, but they do not stop intimidation.
Portland City Councilor Cheryl Leeman says she's not sure how much wiggle room the city has in ensuring patient safety. "And that's still an issue," Leeman says. "So how we deal with that, I'm not quite sure at this point."
Democratic gubernatorial candidate Mike Michaud issued a statement on Monday saying, if elected governor, he will work with the Legislature and attorney general to create common sense measures that "strike the right balance between protecting First Amendment rights and patient safety."
Portland City Councilor David Marshall says he'd rather address the issue locally. An alternative ordinance, he says, could go into effect within three to six months.
