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Robin Huebner, Published March 01 2014

Fargo clinic far away from buffer-zone legal fray

FARGO – The U.S. Supreme Court is weighing for the first time in 14 years the legality of protest buffer zones around abortion clinics, with a decision expected on a pending case by this June.

A handful of cities and states have laws spelling out how close protesters can get to abortion clinics, their patients and staff. The pending decision could affect other, similar buffer-zone laws.

But in Fargo, home to the state’s only abortion clinic, city ordinances that regulate protests outside the clinic don’t involve a specific distance or buffer.

Most calls to police from the clinic involve anti-abortion protesters or clinic escorts believing the other side has run afoul of city ordinances that prohibit people from blocking the sidewalk or gathering in the street.

“They’re specific to our public right of ways and how you can’t block them,” Fargo police Lt. Joel Vettel said of city laws.

Though there was turmoil near the clinic in the 1980s and early 1990s, calls to the Red River Women’s Clinic at 512 1st Ave. N. are few and far between, despite the ongoing protest presence.

“We may go months without responding there,” Vettel said.

Police have been called to the clinic an average of 15 times a year over the past five years. Of those 75 calls, police reports were written up six times.

The sidewalk scrimmage plays out in front of the clinic nearly every Wednesday, the day abortions are performed there.

Human buffers

While there’s no law requiring a buffer zone outside the Red River Women’s Clinic, escorts are buffers of sorts. The volunteers accompany women in and out of the building.

“I’m here to ensure a peaceful environment for patients coming into the clinic and to make sure they feel safe and comfortable,” said Shanna Krogh, a local college senior who’s been a volunteer escort since her freshman year.

Krogh stood outside last Wednesday, bundled up against the cold and wearing a bright green “Clinic Escort” vest.

A few feet away stood abortion protesters Ken Koehler and Dave Foerster, both of West Fargo. The self-proclaimed sidewalk counselors held signs encouraging women to reconsider having an abortion.

The men said they counted four women who were escorted inside before 10 a.m.

While the protesters’ and escorts’ views on abortion couldn’t be more different, they say they respect each other’s rights.

“We co-exist by obeying the laws that are there,” Koehler said, “even though we completely disagree with the killing of innocent human life.”

Krogh thinks the protesters’ tactics are all about shaming women.

“I support their right to be out here,” said Krogh, “but do I think it’s nice? No, even if they have good intentions.”

The director of the Red River Women’s Clinic said she would support a buffer zone.

“I would love for it to happen,” said Tammi Kromenaker.

But unless there are some violent incidents, she doesn’t see it happening anytime soon.

“Our main focus right now is keeping safe, legal abortion available to the women of our region,” Kromenaker said, referring to attempts in the Legislature to further restrict abortion.

A North Dakota state law passed last year that would ban abortions when a fetal heartbeat can be detected – which can be as early as six weeks into a pregnancy – is on hold pending a legal challenge. It is among the most stringent limitations on abortion any U.S. state has approved.

Still, Kromenaker would like her patients to be able to come and go unimpeded, and says her business is the only one in Fargo that has to put up with people harassing and trying to intimidate its clients.

“It’s led to a culture of stigma,” Kromenaker said.

While Fargo hasn’t set a buffer zone around the clinic, it enacted residential picketing regulations in the mid-1980s and saw temporary court injunctions in the early 1990’s limiting picketing outside a previous abortion clinic, known as the Women’s Health Organization.

Longtime Fargo city attorney Gary Stewart was witness to many of the proceedings, and said he isn’t sure why permanent buffers were never enacted.

“Maybe it was the time, or maybe it’s North Dakota nice,” he said.

What’s at stake

In 2000, the U.S. Supreme Court upheld a Colorado law requiring 8-foot “floating” buffer zones around patients and clinic employees.

In the coming months, a more conservative group of Supreme Court justices will decide if a law passed in Massachusetts in 2007 requiring a 35-foot buffer zone around abortion clinics is constitutional, a case known as McCullen vs. Coakley.

Lead plaintiff and 77-year-old grandmother Eleanor McCullen says the Massachusetts law violates her First Amendment rights because it keeps her from standing on the sidewalk and speaking with patients.

A University of North Dakota assistant law professor and visiting professor in Boston said he walks through an abortion clinic buffer zone there every day.

“It’s such a small area,” said Steven R. Morrison, who teaches constitutional law classes.

Morrison predicted the conservative-leaning court will strike down the Massachusetts law on a 5 to 4 vote – which he believes is wrong on both the constitutional and policy levels.

Morrison said such a decision would maximize protesters’ rights, while sacrificing the rights of women seeking abortions.

Also, because buffer zones came about due to acts of violence against abortion clinic staff, Morrison thinks striking them down would create policy that’s “incredibly deferential” to one side.

Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference, said he believes the buffer zones are unconstitutional because they only apply to anti-abortion speech.

He said those who support abortion rights and those who fight against abortion have shown they can function peacefully without buffer zones.

“From our perspective, the bishops feel a prayerful presence is important,” Dodson said.

Huebner is also a 5 p.m. news anchor on WDAY-TV. Readers can reach Robin Huebner at rhuebner@forumcomm.com.