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March v. Mills

United States District Court, D. Maine

May 23, 2016

ANDREW MARCH, Plaintiff,
JANET T. MILLS, Attorney General for the State of Maine, CITY OF PORTLAND, WILLIAM PREIS, Police Lieutenant of the City of Portland, JASON NADEAU, Police Officer of the City of Portland, DONALD KRIER, Police Major of the City of Portland, GRAHAM HULTS, Police Officer of the City of Portland, Defendants.



         Before the Court is the Plaintiff’s motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) (ECF No. 4). For the reasons stated below, the motion is GRANTED.


         This 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. I conclude that it does.

         The plaintiff in this case is Andrew March. He is a Christian pastor and co-founder of a church in Lewiston, Maine called Cell 53. Dec. 28, 2015 March Decl. ¶ 4 (“First March Decl.”) (ECF No. 5-1). Part of the mission of Cell 53 “is to plead for the lives of the unborn at the doorsteps of abortion facilities.” First March Decl. ¶ 5. March believes that “abortion is the killing of unborn citizens” and that it “harms women.” First March Decl. ¶¶ 6-7. He voices his opposition to abortion outside the Planned Parenthood Portland Health Center on Congress Street in downtown Portland (the “Health Center”). First March Decl. ¶¶ 8-15. The Defendants in this case are the Maine Attorney General, the City of Portland (the “City”), and Portland law enforcement officers who interacted with March outside of the Health Center in November and December of 2015.

         This is not the first lawsuit sparked by activity outside the Health Center. In 2014, abortion opponents challenged a City ordinance that created a buffer zone around the Health Center. See Fitzgerald v. City of Portland, 2:14-cv-53-NT, 2014 WL 5473026 (D. Me. Oct. 27, 2014). The City repealed the ordinance after the United States Supreme Court struck down a similar Massachusetts regulation in McCullen v. Coakley, 134 S.Ct. 2518 (2014). Following the repeal of the buffer zone, the City looked to alternative ways to address protests outside of the Health Center. Sept. 2, 2014 Memo. re: Reproductive Health Facility Protests-Buffer Zone Alternatives (“Sept. 2, 2014 Memo”) (ECF No. 43-2). Counsel for the City advised against passing any new regulations, and instead recommended-consistent with McCullen-that law enforcement focus on enforcing existing laws. Sept. 2, 2014 Memo. 6 (“[T]he city should not pursue passage of any new regulations at this time. This is particularly true given the potential of another lengthy legal battle, and considering our current legal expenses and pending budget challenges.”); cf. McCullen, 134 S.Ct. at 2538 (pointing out that the state had less-intrusive, targeted laws it could enforce to address problems around clinics that would burden less speech than a generally-applicable buffer zone). One of the existing laws counsel for the City identified to address issues around the Health Center was the Maine Civil Rights Act, 5 M.R.S.A. § 4684-B.

         The Maine Civil Rights Act (“MCRA”) was enacted in 1989. In broad strokes, it creates a cause of action against any person who, “whether or not acting under color of law, intentionally interferes or attempts to intentionally interfere . . . with the exercise or enjoyment by any other person” of rights secured by the United States or Maine Constitutions or federal or state laws. 5 M.R.S.A. §§ 4681, 4682. The MCRA authorizes suit by the Attorney General or any aggrieved person. Id.

         In 1995, the Office of the Attorney General submitted a bill to amend the MCRA by adding a section that prohibited certain conduct in and around reproductive health facilities. L.D. 1216 (117th Legis. 1995) (ECF No. 36-1). Through the legislative process, the scope of protection was expanded to cover conduct outside all buildings, rather than just reproductive health facilities. One observer noted that this change made the bill “generic or neutral . . . [t]he new bill protects all buildings and business establishments . . . including crisis pregnancy centers, pro-life groups’ headquarters and offices, etc.” L.D. 1216 at 29 (117th Legis. 1995). A summary of the proposed bill included a section on why it had been offered:

The history of civil rights enforcement in this country over the past several years has demonstrated that the most extreme violence tends to occur in situations where less serious civil rights violations are permitted to escalate. When the rhetoric of intolerance and the disregard for civil rights do, in fact, escalate, then some people at the fringes of society will take that atmosphere as a license to commit unspeakable violence. The amended version of L.D. 1216 represents a commitment on the part of both sides of the abortion debate to reduce tensions in order to lessen the chances of tragic violence.

L.D. 1216 at 14 (117th Legis. 1995). As enacted, the amendment made it a violation of the MCRA to interfere or attempt to interfere with a person’s civil rights by: (1) physically obstructing the entrance or exit of a building; (2) making repeated telephone calls to disrupt activities in a building; (3) setting off any device that releases “noxious and offensive odors” within a building; or (4) making noise that can be heard within a building, after having been ordered by law enforcement to stop, with the intent to jeopardize or interfere with the delivery of health services inside. 5 M.R.S.A. § 4684-B(2).

         In the instant suit, March challenges the constitutionality of the noise portion of the amendment, which reads:

2. Violation. It is a violation of this section for any person, whether or not acting under color of state law, to intentionally interfere or attempt to intentionally interfere with the exercise or enjoyment by any other person of rights secured by the Constitution of Maine or laws of the State by any of the following conduct:
D. After having been ordered by a law enforcement officer to cease such noise, intentionally making noise that can be heard within a building and with the further intent either:
(1) To jeopardize the health of persons receiving health services within the building; or
(2) To interfere with the safe and effective delivery of those services within the building.

5 M.R.S.A. § 4684-B(2)(D) (the “Noise Provision”).[1]

         March filed suit in December of 2015, along with a motion for a preliminary injunction. Compl. (ECF No. 1); Pl.’s Mot. for Prelim. Inj. (ECF No. 4). He later filed an amended complaint. First Am. Compl. (ECF No. 30). The parties declined to exchange discovery or present evidence through a hearing in connection with the preliminary injunction motion, and instead simply chose to present their positions through oral argument. Report of Hr’g & Order Re: Scheduling (ECF No. 46). The parties also submitted supplemental briefing to address additional questions raised at oral argument. Thus, the evidence at my disposal is limited to the declarations, videos, and additional documents the parties attached as exhibits to their preliminary injunction briefing.


         The Health Center is located on the second floor of a building on Congress Street, a loud and busy thoroughfare. First March Decl. ¶¶ 10, 22; Feb. 22, 2016 March Decl. ¶ 6 (“Second March Decl.”) (ECF No. 43-5). The Health Center relocated to Congress Street in September of 2011. Feb. 8, 2016 Healey Aff. ¶ 4 (“Healey Aff.”) (ECF No. 38). After this relocation, protesters opposed to abortion began to congregate on the sidewalk in front of the entrance to the Health Center. Healey Aff. ¶ 5. Approximately a dozen protesters would gather along the sidewalk carrying signs, handing out literature, and attempting to engage in conversation with individuals entering the building. Healey Aff. ¶ 7. In response to these protests, the Health Center implemented a “greeter program” whereby volunteers would stand outside of the facility to escort patients past the protesters into the Health Center. Healey Aff. ¶ 6. The Health Center also hired City police officers to stand outside to ensure that patients could safely enter and exit the facility. Healey Aff. ¶ 6.

         Although protesters had gathered on the sidewalk outside of the Health Center for years, they generally could not be heard within the facility. Healey Aff. ¶ 26. But after the City repealed the buffer zone ordinance around the Health Center, the protesters became much louder. Healey Aff. ¶¶ 8-9. One protester, Brian Ingalls, began yelling disruptively outside of the Health Center, occasionally yelling directly at patients inside the facility. Healey Aff. ¶ 10. At times, his yelling could be heard inside the Health Center’s waiting room, counseling rooms, and an exam room. Healey Aff. ¶ 11. In the counseling rooms, employees obtain patients’ medical histories, take vital signs, discuss treatment options, potential risks, complications, and side-effects. Healey Aff. ¶ 12. Employees also explain what a patient should expect post-procedure and what at-home care the patient may require, while also answering questions and ensuring that the patient has provided informed consent to the treatment. Healey Aff. ¶ 12. Medical examinations and procedures are performed in the Health Center’s exam rooms. Healey Aff. ¶ 13.

         Loud and sustained yelling that is audible within the Health Center interferes with the Health Center’s staffs ability to provide care to their patients. Healey Aff. ¶ 15. This noise is problematic because:

• To effectively deliver health services, staff need a calm and quiet environment for their interactions with patients. Healey Aff. ¶ 14. Effective communication between Health Center staff and patients is essential because of the importance of obtaining accurate information regarding patients’ “medical histor[ies], allergies, and other issues that may impact . . . medical care.” Feb. 8, 2016 Dowling Aff. ¶ 8 (“ Dowling Aff.”) (ECF No. 35).
• It is essential that patients fully understand and retain the information provided to them by the Health Center regarding their medical procedure. Health Center staff need to explain to patients “the various symptoms they may experience after they leave [the] facility, including which symptoms are to be expected and which symptoms are abnormal.” Dowling Aff. ¶ 10. If a patient does not understand or retain this information, the medical repercussions can be significant. Dowling Aff. ¶ 10.
• It becomes very difficult to communicate with patients when protesters are loud enough that they can be heard inside the building. The loud noise distracts patients and renders them unable to concentrate on their discussions with staff. This in turn causes staff to spend more time repeating instructions to patients, which causes additional delays for the entire facility. Dowling Aff. ¶¶ 11-12 • “When abortion procedures are delayed, the medical risks associated with such procedures increase.” Dowling Aff. ¶ 13; see also Healey Aff. ¶ 20. At least one patient requested that her appointment be postponed to a later date “because of the disruptive effect of noise.” Dowling Aff. ¶ 13.
• “[D]elays have an escalating effect throughout the facility” because they impact all patients waiting for care. Dowling Aff. ¶ 15. “The longer patients wait, the longer they are subjected to the loud shouting of protesters, with a corresponding increase in their agitation and emotional distress.” Dowling Aff. ¶ 15.
• Loud noise from outside the building has a physiological effect on patients, causing “additional stress and elevated blood pressure, pulse, and respiratory rates.” Healey Aff. ¶ 16. Such physical effects interfere with medical care because patients require “additional evaluation and treatment.” This also can lead to treatment being delayed. Healey Aff. ¶ 16.
• The Health Center provides “many patients with anti-anxiety medications prior to abortion procedures.” Healey Aff. ¶ 18. When patients are subjected to noise from protesters on the sidewalk, staff often have to “give patients multiple doses of medication until the[ir] anxiety is under control.” Healey Aff. ¶ 18. Providing these additional doses can result in further delay of care. Healey Aff. ¶ 18.
• Transitory noise produced by parades, sirens, and car horns have the potential to disrupt medical care. However, those noises are normally brief in duration and any disruption dissipates quickly. “[U]nabated constant noise” that is specifically directed at patients “is uniquely disruptive” to the Health Center’s ability to provide medical care. Healey Aff. ¶¶ 29-30.

         Furthermore, such noise often causes patients to complain to staff and ask to move to other areas of the Health Center where the noise is less audible. Healey Aff. ¶ 22. The Health Center has tried to mitigate the impact of noise on their patients by relocating exam rooms and moving patients into recovery areas where the noise is less audible. This can be problematic, however, because patients are then separated from people who are there to support them, as recovery areas are restricted to patients and staff. Healey Aff. ¶ 28.

         The Health Center contacts the police when at least two staff members determine that the noise level outside has reached a point where it is having an impact on patients and interfering with the staffs ability to provide medical care. Healey Aff. ¶ 23. Typically, the responding police officer will enter the Health Center to verify the noise level before taking any action.[2] Healey Aff. ¶ 24. The Health Center called the police on multiple occasions after Ingalls repeatedly yelled and screamed directly at patients inside the Health Center. Healey Aff. ¶ 10.

         In October of 2015, the Attorney General’s Office brought an action against Ingalls under the MCRA. Feb. 8, 2016 Robbin Aff. ¶ 4 (“Robbin Aff.”) (ECF No. 37). Since the MCRA was enacted in 1995, the Attorney General’s Office has filed 12 other actions relating to incidents around clinics that provide abortion and family planning services. Robbin Aff. ¶ 5. Ten actions have been filed to protect abortion protesters’ First Amendment rights and two actions have been brought against abortion protesters. Robbin Aff. ¶ 5. The Ingalls case is the first instance in which the Attorney General’s Office has brought a case under the Noise Provision of the MCRA. See Robbin Aff. ¶ 6.

         After the State sued Ingalls under the MCRA, March began preaching on the public sidewalk in front of the Health Center. First March Decl. ¶ 11. He preaches from the sidewalk so he can effectively reach his intended audience of women and employees before they enter the Health Center. First March Decl. ¶¶ 20-21. The parties’ affidavits conflict on whether March ever shouted, but he was loud enough to be heard within the Health Center on three occasions.[3] He does not engage in group chanting or use an amplification device while preaching outside of the Health Center. First March Decl. ¶¶ 12-15.

         On November 6, 2015, March was approached by Defendant Nadeau and another police officer while he was preaching on the sidewalk outside of the Health Center. First March Decl. ¶¶ 27-28. Officer Nadeau informed March that he had received a complaint from a Health Center employee who said that March could be heard within the building. First March Decl. ¶ 29. The parties dispute whether the police officers verified whether March could be heard inside the building.[4] When March asked Officer Nadeau for an objective volume at which he could speak, Officer Nadeau informed him that there was no objective volume and that the law was based on whether Health Center employees could hear him inside. First March Decl. ¶ 32. After March again asked Officer Nadeau for an objective standard, he requested that March keep his voice down so they cannot hear him inside. Pl.’s Ex. B (ECF No. 9).

         An officer approached March later that day and handed him a copy of the MCRA. First March Decl. ¶¶ 41-42. The officer informed March that he was officially being warned under the MCRA. First March Decl. ¶ 45. After March was officially warned, he spoke at a quieter volume, but this made it more difficult for him to convey his pro-life message over the noise on Congress Street. First March Decl. ...

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