Anti-abortion activists might have won their lawsuit against the city of Portland about a 39-foot no-protest zone around a Portland clinic that provides abortions, but several who sued the city are not ready to end their fight.

The activists said they still want the court to award them money, as little as $1 in “damages,” to show that their constitutional rights were infringed upon by the ordinance, which the Portland City Council repealed on July 7. The council voted two weeks after the U.S. Supreme Court issued a unanimous decision in a similar Massachusetts case, ruling that a 35-foot buffer zone around clinics in Massachusetts violated the free-speech rights of anti-abortion demonstrators.

Additional Images

Anti-abortion protesters stand across the street from the Planned Parenthood clinic at 443 Congress St. on July 11. Portland’s 39-foot no-protest buffer zone was lifted July 7. John Patriquin/Staff Photographer

The city’s lawyers filed a motion in U.S. District Court in Portland a day after the council lifted its buffer zone ordinance, asking Judge Nancy Torresen to dismiss the case because without the buffer zone, “there is no longer a controversy here.” The city filed its final legal brief in support of that motion on Tuesday, and the matter is now with the judge.

But attorneys for the activists — Daniel and Marguerite Fitzgerald, of Shapleigh, and their children; and Richmond resident Leslie Sneddon — countered in their legal brief, saying that dismissing the case would ignore that their constitutional right to free speech was denied under threat of fines and police action.

“A basic purpose of an award of damages … is to compensate people for injuries caused by the deprivation of their constitutional rights, and this purpose would be defeated if injuries resulting from the deprivation of constitutional rights went completely uncompensated,” the activists’ attorneys, Erin Mersino and Erin Kuenzig, of the Thomas More Law Center in Michigan, said in their written argument filed on July 29.

For about a year before the Portland ordinance was enacted, 10 to 25 anti-abortion protesters, including children, gathered regularly in front of Planned Parenthood’s entrance at 443 Congress St., some holding large signs with graphic photos of aborted fetuses. Some shouted Bible verses at women entering the clinic and called them murderers.

Soon after the protests started, Planned Parenthood hired police officers to ensure the protests did not get out of control. The clinic also had volunteers in brightly colored vests who helped patients navigate the crowd.

One of the city’s attorneys, Patricia McAllister, said on Wednesday that she doesn’t believe the Fitzgeralds and Sneddon are seeking an award for monetary damages but rather as a way to require the court to make a formal ruling in their favor.

“They want a legal ‘win’ here,” McAllister said. “What the city has argued is we have repealed the ordinance. It’s moot.”

McAllister argued that until the U.S. Supreme Court ruling on June 26, Portland’s buffer zone ordinance was legal under the “law of the land” established under a previous ruling by the 1st Circuit Court of Appeals in Boston. When the nation’s highest court issued its opinion trumping the 1st Circuit decision, the city acted quickly to comply with the new law.

The activists’ attorneys argue that the Portland City Council has indicated that it will try to pass another version of a buffer zone law in the near future and that a ruling specific to the Portland case is necessary to establish that the ordinance did deprive their clients of their constitutionally guaranteed freedoms, even if for a short period of time.

“This case is not about money at all,” Kuenzig said in emails on Wednesday. “A ruling in our favor would set a precedent and would be persuasive authority for a judge to consider if Portland decides to enact a similar buffer zone ordinance. Such an order would also, hopefully, cause the city of Portland to tread more carefully in the future when it comes to unnecessarily restricting the constitutional rights of its citizens.”

Portland spokeswoman Jessica Grondin said on Wednesday that city staffers are working on various alternatives to the repealed buffer zone ordinance. Those options are expected to be presented to the City Council’s Public Safety, Health and Human Services Committee on Sept. 9, though it was not immediately clear when the committee and the full council might vote on the alternate options.

While the U.S. Supreme Court ruling rejects the 35-foot Massachusetts buffer zone and thereby indirectly rejects Portland’s ordinance, it does not call into question a so-called “floating buffer” that Massachusetts has adopted that is meant to prevent protesters from getting any closer than 6 feet from unwilling listeners if they were within 18 feet of a clinic.

The floating zone was modeled after a Colorado law that was upheld by the U.S. Supreme Court.

Portland Press Herald Staff Writer Kevin Miller contributed to this report.

Related Stories