A day before the Dobbs draft opinion leaked, dozens paraded before the Maine State Legislature’s Committee on the Judiciary. Nearly every person was there to testify in favor of L.D. 1899, the state’s new pro-abortion “buffer zone” law. While the law’s peripheral elements include provisions which close some small loopholes, the meat of its text establishes a “medical safety zone,” or “buffer zone” outside of abortion facilities that protestors cannot enter. If a protestor enters this eight-foot zone drawn from the center of the entrance, he or she can be prosecuted.[1] Of all those who took a stand on this bill, only one person testified against it.[2]

 

 

Given the broad public support for the bill, one would expect that it addresses a real problem. Indeed, one headline from a local news station touted it as a solution to the apparently widespread issue of “harassment at abortion clinics.”[3] What kind of harassment? Many who testified before the committee complained about people who shouted in front of clinics.[4] Some mentioned protestors who bumped patients or blocked the path of patients.[5] One State Senator cited with much alarm a statistic from the National Abortion Federation, which reports 115,517 “anti-abortion incidents”[6] (which, according to the report, is simply the number of protests outside NAF-affiliated abortion clinics).[7] In many ways, it was what one would expect to hear from citizens at a legislative hearing, that “people are doing something wrong, and there should be a law to stop them.”

 

 

The problem with this parade, however, is that there already is a law. Every single behavior mentioned by the dozens who testified before that committee, from bumping to simply “standing on either side of the sidewalk” with large signs,[8] is either explicitly illegal in Maine or explicitly protected by the United States Constitution. Furthermore, of all the behaviors listed, not a single one is touched by L.D. 1899. Given the overwhelming attention paid to this bill by the pro-abortion lobby, one would expect at least one single anecdote in which a pro-life protestor came within eight feet of the entrance of a facility. Yet not a single one was presented before the committee.[9]

 

 

It is equally revealing that not a single pro-life protestor showed up to denounce this bill. The only piece of testimony against this bill focused not on the bill itself but on ending abortion in general.[10] If the problem is the existing behavior of pro-life protestors, and this bill will affect that behavior, then why were none of the pro-life protestors at whom this bill is directed available to comment? Thousands will stand for hours outside of abortion clinics in freezing Maine, but not one will go on a Zoom call to defend their right to protest? The easiest explanation for this absence (of both protestors at the hearing and of anecdotes regarding the behavior punished by this law) is that the text of the bill fails to concretely affect the protestors. In other words, standing within eight feet from the entrance of an abortion facility is uncommon among pro-life protestors. If uncommon, then this bill must be about something other than the actual behavior of protestors.

 

 

Cynics might say that this bill is designed to undermine the public perception of pro-life demonstrators. Another explanation has to do with the courts. Nine years ago, in McCullen v. Coakley, the Supreme Court ruled that a 35-foot buffer zone outside a similar abortion clinic in Massachusetts violates the First and Fourteenth Amendments.[11] Perhaps this is an attempt to counterbalance that decision with a less stringent law. After all, the reason for the Court’s decision was not that the buffer zone was content-based (that it targeted pro-life protestors) but that in extending the zone into “traditional public fora” like sidewalks and streets, it was burdening substantially more speech than necessary to further the government’s interests. The question that would need to be raised is whether that analysis would apply just as cleanly to an eight-foot zone. On one hand, a smaller zone burdens significantly less speech. On the other hand, it does much less to further the government’s “legitimate interest,” which in that case was to “[preserve] access to adjacent reproductive healthcare facilities.”[12] After all, it is much easier to block entry into a semicircle that has an eight-foot radius than it is to do the same with a thirty-five-foot radius semicircle.

 

 

Alongside this analysis is the one that the Supreme Court applied over twenty years ago in Hill v. Colorado. There, the Court upheld an eight-foot “restriction on unwanted physical approach.” This zone, similar to laws preventing cars from coming within a few feet of cyclists, is a zone that extends around a moving person instead of a fixed entrance.[13] The salient distinction between that law and this one is that while the former clearly furthers the government’s interest of preserving access to abortion facilities, the latter does not.

 

 

The real challenge is that it is difficult to predict how enforcement will change once L.D. 1899 is put into effect. While it will be much easier to prosecute someone who is loitering within the buffer zone, it may be more difficult to do the same with one violating existing laws outside the buffer zone. Before this law, the police were primarily on the lookout for those who would physically obstruct someone’s path to the abortion facility. After this law, it might be more difficult to convict that same person, who can now insist that he or she was respecting the law by being outside of the buffer zone. This analysis may seem like a reach, but so does any attempt at a real answer to what this law explicitly changes. Until an attempt can successfully show that this bill greatly impacts existing behavior, it is difficult to see how this law advances a legitimate governmental interest. And without that interest, it is difficult to see how the law—which at least theoretically affects the speech of protestors—will pass constitutional muster.

 

 

Those who would like to focus on buffer zone laws might do better to focus on the recent controversy over a 25-foot zone in New Hampshire,[14] or the 3rd Circuit Court of Appeals’ verdict in favor of a 15-foot zone in Pennsylvania.[15] Here in Maine, the pro-life movement plans to focus on the lives of unborn children before it attends to the location of protesting adults.

 

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[1] L.D. 1899 (130th Legislature, 2022).

[2] “An Act To Ensure Safe Entry and Access for People Seeking Health Care and Other Constitutional Rights: Status in Committee.” Maine State Legislature, May 2022. https://legislature.maine.gov/legis/bills/display_ps.asp?LD=1899&snum=130#.

[3] Whittle, Patrick. “New Law Designed to Stop Harassment at Abortion Clinics in Maine.” News Center Maine, April 26, 2022. https://www.newscentermaine.com/article/news/health/new-maine-law-aims-to-stop-harassment-at-abortion-clinics-health-care/97-06f4b0eb-4057-4d9e-9fee-823b6d6a31f2.

[4] An Act To Ensure Safe Entry and Access for People Seeking Health Care and Other Constitutional Rights: Hearing on L.D. 1899 Before the J. Standing Comm. on Jud., 130th Legis. 3 (2022)

(Testimony of Ann Brandt). https://legislature.maine.gov/legis/bills/getTestimonyDoc.asp?id=10007377.

[5] An Act To Ensure Safe Entry and Access for People Seeking Health Care and Other Constitutional Rights: Hearing on L.D. 1899 Before the J. Standing Comm. on Jud., 130th Legis. 3 (2022)

(Testimony of Meredith Healey). https://legislature.maine.gov/legis/bills/getTestimonyDoc.asp?id=10007293.

[6] “2020 Violence and Disruption Statistics.” National Abortion Federation, 2021. https://5aa1b2xfmfh2e2mk03kk8rsx-wpengine.netdna-ssl.com/wp-content/uploads/2020_NAF_VD_Stats.pdf.

[7] Id.

[8] Hearing on L.D. 1899. Testimony of Ann Brandt.

[9] “An Act To Ensure Safe Entry and Access for People Seeking Health Care and Other Constitutional Rights: Status in Committee.” Maine State Legislature, May 2022. https://legislature.maine.gov/legis/bills/display_ps.asp?LD=1899&snum=130#.

[10] An Act To Ensure Safe Entry and Access for People Seeking Health Care and Other Constitutional Rights: Hearing on L.D. 1899 Before the J. Standing Comm. on Jud., 130th Legis. 3 (2022)

(Testimony of Michael McClellan).

[11] McCullen v. Coakley, 134 S. Ct. 2518 (2014), in Legal Information Institute https://www.law.cornell.edu/supremecourt/text/12-1168 (accessed June 13, 2022).

[12] Id.

[13] Hill v. Colorado, 530 U.S. 703 (2000), in Justia, https://supreme.justia.com/cases/federal/us/530/703/ (accessed June 13, 2022).

[14] Timmins, Annmarie. “Sununu Signs Fatal Fetal Anomaly Bill, Rejects Repeal of Abortion Clinic Buffer Zones.” New Hampshire Bulletin, May 31, 2022. https://newhampshirebulletin.com/briefs/sununu-signs-fatal-fetal-anomaly-bill-rejects-repeal-of-abortion-clinic-buffer-zones/.

[15] Brown v. City of Pittsburgh, 586 F.3d 263 (3rd Cir. 2009).

 

________________________

Thomas Keith

Policy Analyst

Christian Civic League of Maine

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