Updated: Could Portland repeal its abortion clinic buffer zone in the aftermath of the Supreme Court ruling?

Most people following national or regional news by now know that, last week, the U.S. Supreme Court unanimously ruled that a Massachusetts law establishing a 35-foot no-protest zone around abortion clinics in the state was unconstitutional.

Massachusetts Gov. Deval Patrick (Reuters photo)

Massachusetts Gov. Deval Patrick (Reuters photo)

That decision sets a precedent that’s widely expected to have an impact on a federal lawsuit challenging Portland’s abortion clinic buffer zone, which is 39 feet and otherwise quite similar to the Massachusetts law, which had previously been upheld by the U.S. First Circuit Court of Appeals and seemed for a long time to be a legally defensible model for such no-protest zones.

Now, the state of Massachusetts is going back to the drawing board, with Democratic Gov. Deval Patrick and Attorney General Martha Coakley promising to introduce new legislation there geared toward pushing anti-abortion protesters way from abortion clinic patients, but perhaps in a way the courts might find less intrusive on those protesters’ constitutional rights to free speech.

The Boston Globe reports that Patrick and Coakley are considering myriad proposal options to get around the high court ruling, including: Updating a law that allows police to disperse crowds; reinforcing the protection of driveway access to clinics; and copycatting federal legislation that allows for injunctions against demonstrators who impede access to clinics.

(BDN file photo by Troy R. Bennett)

(BDN file photo by Troy R. Bennett)

Coming back to the local lawsuit, could the Portland city councilors see the writing on the wall from the Supreme Court decision and repeal the city’s buffer zone before the federal court system does it for them?

City spokeswoman Jessica Grondin confirmed to me that that’s indeed one possibility on the table, although she stopped well short of saying it’s the council’s top option. The City Council next meets on Monday, and that meeting agenda — which may provide some hints about what that panel is thinking — will be released tomorrow.

I called Associate Prof. Dmitry Bam of the University of Maine School of Law, an expert on constitutional law, this afternoon to get an idea what the city’s next move could be given what the Supreme Court ruled in the Massachusetts case.

Bam suggested that the nation’s highest court didn’t leave Portland much wiggle room in terms of defending its current buffer zone — that the Massachusetts precedent is all but a death sentence for Portland’s buffer zone and any other similar no-protest zones that might come through the court system afterward.

“The court didn’t say, ‘You can’t do 35 [feet], you’ve got to do less than 20,’” Bam said. “I read it as a broad rejection of buffer zones generally.”

But Bam noted that, if the city is insistent on trying to push anti-abortion demonstrators back, the court did leave open some possibilities. Portland could voluntarily repeal its own 39-foot buffer zone and replace it with an ordinance creating eight-foot mini buffer zones around each individual passing through the area of the clinic, mimicking a Colorado law that survived a legal challenge in 2000.

“The court doesn’t, at least not directly, say they’re overruling Hill [v. Colorado],” Bam said. “So maybe something like a floating buffer zone is still on the table.”

Although, he added, the Colorado buffer zones may be on thin ice thanks to last week’s decision, and warned against simply adopting a similar ordinance.

Attorney Erin Kuenzig (BDN file photo)

Attorney Erin Kuenzig (BDN file photo)

“What the court says in McCullen [v. Coakley in the Massachusetts buffer zone case] seems to apply as much to Hill,” he said. “You could say the exact same thing about a floating buffer zone, so I’m not sure how convincing that is. I don’t think there are five votes [of the nine Supreme Court justices] to uphold Hill today.”

So if not the buffer zone they have or the buffer zones Colorado has, what option could the city of Portland pursue? In essence, Bam said the city could do what Erin Kuenzig, the attorney representing the anti-abortion demonstrators in this case, argued it should have been doing all along: Enforcing the laws already on the books.

Kuenzig has argued in court that laws prohibiting disorderly conduct, street harassment and blocking public ways, for instance, could be used to prevent any demonstrators from creating a public safety hazard without unduly infringing on their rights to spread their messages against abortion.

“The court in this case says you’ve got other options that are much less restrictive on speech,” Bam said.

I asked Bam if the city’s next step might be an aggressive police crackdown on protesters under its disorderly conduct ordinance, which includes the following language:

No person shall, in a private or public place, knowingly accost, insult, taunt or challenge any person with offensive, derisive or annoying words, or by gestures or other physical conduct, which would in fact have a direct tendency to cause a violent response by an ordinary person in the situation of the person so accosted, insulted, taunted or challenged.

No person shall in, on, or adjacent to any of the streets, ways or public places, make, continue, or cause to be made or continued any loud, unnecessary or unusual noises which shall either annoy, disturb, injure or endanger the comfort, repose, health, peace or safety of others.

Patients of Planned Parenthood of Northern New England, whose Congress Street clinic is the one currently surrounded by the 39-foot buffer zone, have claimed that anti-abortion protesters have called them “murderers,” among other insults. If those stories are true, could that name-calling be considered by police, who have never before charged any of the demonstrators with any kind of criminal violation, to now be in violation of the disorderly conduct ordinance?

“I’m not sure you’d have to go quite that far,” said Bam of a possible city reinterpretation of its disorderly conduct ordinance, among other codes. “I think you could identify any bad actors — the person who really is threatening patients or blocking entrances, and then seek injunctions against that person.”

How far the city will go remains to be seen. But until something changes, Portland is still involved in a court case over its buffer zone that, thanks to last week’s Supreme Court ruling, seems like a long shot for the city to win.

Update: July 3, 2014, 3:31 p.m.

The following item and explanation is included on the Portland City Council’s July 7 meeting agenda:

agenda item

Seth Koenig

About Seth Koenig

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