A federal judge ordered police on Monday to stop using a noise provision in the Maine Civil Rights Act to keep anti-abortion protesters from shouting so loudly that they can be heard inside the Planned Parenthood clinic in downtown Portland.
U.S. District Chief Judge Nancy Torresen issued a preliminary injunction in a lawsuit brought by Andrew March in December. He argued that police who told him to quiet down outside Planned Parenthood’s office in Monument Square last year targeted him because of his anti-abortion message and violated his constitutional rights to free speech.
March, pastor of the Lewiston church Cell 53, filed his lawsuit as a counterclaim after the Maine Attorney General’s Office brought a suit in state court against Brian Ingalls, a member of the Cell 53 congregation.
The attorney general’s suit accuses Ingalls of yelling so loudly about murdering babies, aborted babies’ blood and Jesus on Oct. 23 that his voice could be heard in the second-floor counseling and examination rooms of the health clinic at 443 Congress St. The shouting, according to the lawsuit, violated a provision in the Maine Civil Rights Act that protects people getting medical care from noisy disturbances.
The judge in the state court case, Justice Lance Walker, has yet to rule in Cumberland County Superior Court in Portland on Attorney General Janet Mills’ request for an injunction that seeks to keep Ingalls from coming within 50 feet of Planned Parenthood facilities anywhere in the state. It was unclear Monday how or whether the federal court ruling would affect the state case.
“The case presents the difficult question of whether a state law providing protection to women seeking access to constitutionally protected health care violates the First Amendment rights of an individual who wishes to voice his opposition to abortion on a public sidewalk,” Torresen wrote in the ruling. “I conclude that it does.”
EDGE FOR FREE-SPEECH ARGUMENT
Torresen ruled Monday in the federal suit against Mills and several individual Portland police officers after hearing oral arguments on the issue April 4 and after asking many pointed questions about prior case law to the attorneys on both sides.
March’s attorney, Kate Oliveri, said that although Torresen’s ruling was not a final decision in the case, it indicates that the judge believes March will ultimately be victorious.
“The ruling is important in two immediately significant ways,” said Oliveri, of the Thomas More Law Center in Michigan. “First, it means that Pastor March is likely to succeed on the merits when the case goes to summary judgment or trial. In other words, the court found, based on the evidence and legal arguments presented in the briefing and at oral argument, that the noise portion of the Maine Civil Rights Act is an unconstitutional restriction on free-speech rights. Second, it means that Pastor March and other peaceful pro-life speakers can preach and pray on the public sidewalk without fear of prosecution under the noise portion of the Maine Civil Rights Act.”
Timothy Feeley, a spokesman for Mills, said the Attorney General’s Office defended the noise statute by saying it was carefully crafted and is a reasonable accommodation of free speech.
“We will review the (federal) court’s decision and decide on an appeal. It is the attorney general’s responsibility to defend the constitutionality of state statutes whenever reasonably appropriate,” Feeley said.
In the most recent ruling in the state case, the judge denied Ingalls’ motion to dismiss the case without hearing evidence on grounds that his free-speech rights outweigh the rights of women under state law to safe and effective health care. That ruling cleared the case to proceed.
CONTENT-NEUTRAL LEGISLATION
In the federal case, Oliveri, March’s attorney, argued that police let parades, sirens and other loud noise outside Planned Parenthood go unchecked, but used the statute against anti-abortion protesters solely because of their anti-abortion message.
Torresen said in her 35-page ruling Monday that the preliminary injunction was specific to the circumstances in March’s lawsuit and left the door open for further legislation that could prevent loud protests as long as it doesn’t target specific speech.
“If I were balancing a woman’s right to receive safe and effective medical treatment against (March’s) right to speak at his chosen volume outside the windows of the health center, I would conclude that the former is considerably more important than the latter. However, I must also consider the realities of the situation,” Torresen wrote. “The defendants (Mills and the police) are free to pass content-neutral legislation that can achieve the goal of a peaceful environment for people receiving health care. While I understand the defendants’ frustration with the shifting sands of First Amendment jurisprudence, avenues are still open to protect the interests of both sides of this debate.”
Nicole Clegg, a spokeswoman for Planned Parenthood in Maine, said the judge acknowledged in her ruling how disruptive the yelling protesters are to women trying to speak to health care providers.
“It’s loud. It’s sustained. The impact it has had on our patients is undeniable,” Clegg said. “Our first priority is to the safety of our patients and our staff and to make sure people have access to the health care that they need.”
Send questions/comments to the editors.
