First Circuit Sides With Clinics and State of Maine, Protecting Women’s Access To Reproductive Healthcare
by Vanessa Adriance
This summer, the United States Court of Appeals for the First Circuit decided a critical abortion rights case, reaching a decision that will impact the way states seek to protect clinics in the years to come.
In March v. City of Portland, the court addressed the question of whether a Maine law that prohibited a person from intentionally making noise “that can be heard within a building” when the offender has been ordered to cease making the noise by law enforcement, and continues to make the noise in question with the “intent either: (1) [t]o jeopardize the health of persons receiving health services within the building; or (2) [t]o interfere with the safe and effective delivery of those services within the building.” In reviewing the district court’s grant of a preliminary injunction prohibiting the enforcement of this provision, the First Circuit held that the law was content neutral, and a permissible time, place, and manner restriction on speech.
An anti-abortion activist challenged this provision and sought to enjoin its enforcement, arguing that it violated his free-speech rights under the First Amendment. The activist, Andrew March, argued that the provision’s intent requirement prevented it from being content neutral. In disagreeing with this argument, the court noted that the law was content neutral on its face, and also that there is a “limitless array of noises that may be made in a disruptive manner” and with disruptive intent. Such disruptive speech thus is not particular to a given viewpoint or agenda.
The court also held that the law was “justified without reference to content” and was not adopted with an intent by the state to curb the Plaintiff’s specific message. Rather than being adopted to curb anti-choice protest, the law was adopted to “protect patients from ‘[t]he type of noise most likely to cause harm’ to their ‘right to receive safe and effective medical care.’” The court thus held that “Maine is regulating a type of loud noise that is likely to be uniquely disruptive for reasons that have to do with the manner in which the noise in made rather than with the content of any message that such noise may convey.”
The court then went on to address whether the ordinance survived constitutional scrutiny as a time, place, and manner restriction. Time, place, and manner restrictions are constitutional so long as they are narrowly tailored to serve a significant government interest. The First Circuit held that Maine’s noise law did indeed pass this level of scrutiny. It found first that the interest of allowing Maine’s citizens to receive safe and effective health care was “quite clearly a significant one.” Likewise, the court found the law to be appropriately narrowly tailored, as it “targets the subset of noise that Maine has identified as being especially problematic.” . In so holding, the court noted that “[t]he narrow tailoring requirement does not demand perfect tailoring.”
The court thus held that the law was content-neutral, targeting noise for reasons independent of its content, and served a significant state interest without burdening substantially more speech than necessary and leaving open ample alternative means of communication.
This decision is critical to abortion rights in this country. Content neutral noise ordinances are often invoked to protect clinics and their patients from excessive noise, and protesters often seek to disturb clinics and obstruct medical care with bullhorns and other amplified sounds. The effects of loud noise on patients following surgery can be detrimental to their health (as the Maine legislature found when it passed the law in question). Research has shown that disruptive noises not only upset patients, but are also detrimental to their health and can cause worse outcomes.
The March case affirms decades of constitutional law jurisprudence allowing for reasonable time, place, and manner restrictions on speech in public fora so long as those restrictions serve important government interests and are narrowly tailored. It allows the State of Maine to protect the health of patients, including women seeking reproductive healthcare, and confirms that clinics and patients need not be subject to an auditory assault that amounts to an attack on their business and health in the name of free speech.
More broadly, March confirms that states and municipalities may regulate noise levels and other disruptive conduct without running afoul of the First Amendment if they do so properly, and should serve to both beat back baseless constitutional attacks on noise regulations and give state and local governments confidence in their ability to pass such laws, and law enforcement’s ability to prosecute violations without fear of being subject to frivolous lawsuits.
In other positive news for women, Oregon’s governor recently signed a bill requiring health insurers to provide both birth control and abortion coverage without co-pay.
Vanessa Adriance is the WLALA Pro-Choice and Reproductive Rights Committee Co-Chair. Ms. Adriance is an Associate Attorney at Gibson Dunn.
 --F.3d. ---, No. 16-1771 (1st Cir. August 8, 2017), citing Me. Rev. Stat. Ann. Tit. 5, §4684-B(2)(D).