Appeals Court Rules Against Office Park That Sued ‘Nuisance’ Abortion Clinic

By Stanley Dunlap | Georgia Recorder | June 14, 2021 

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This story was updated on Tuesday June 15 at 8:28 a.m. to reflect that the ACLU did not represent the clinic in the appeal case.

The Georgia Court of Appeals ruled Monday that abortion clinics have a right to operate without fear of a commercial business owners filing nuisance lawsuits because they attract protesters.

The ruling said the lower court erred in not granting Dr. Daniel McBrayer a new trial after a 2019 Cobb County jury awarded a $1.5 million settlement to Governors Ridge Office Park Association and several other property owners.

In the 2013 lawsuit, the office park association said it was concerned about the “nuisance” caused by picketers outside McBrayer’s Alpha OB/GYN clinic carrying signs showing terminated fetuses. The commercial park group also said they also worried about the threat of arson after a 2012 attack.

But on Monday, appeals court Judge Kenneth B. Hodges III said that defining the clinic as a nuisance because it drew protesters would threaten other medical practices offering abortion services and potentially other controversial locations that may also draw protestors.

“Both legal protestors and criminals have caused disruption around a multitude of businesses and institutions, such as gun shops, fur retailers, Chick-fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few,” Hodges wrote in the decision Monday.

“Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise,” Hodges said.

The ACLU of Georgia, which filed a brief in McBrayer’s appeal, hailed the judge’s decision as a win for women’s health care.

“Otherwise, any lawful operation ranging from gun stores to Chick-fil-A restaurants could be shut down because of protestors who disagree with their views,” said Sean Young, legal director of the ACLU of Georgia. “Rather than being a nuisance, the bustling marketplace of ideas is a feature of our pluralistic democracy.”

After opening in the early 1990s’, Alpha OB/GYN in Marietta offered an array of medical services before closing in 2015. Over the years, McBrayer’s practice attracted protestors ranging from a handful to numbering in the hundreds — and those picketers sometimes haggled employees and visitors at the office park, according to court documents.

The court’s decision said that Governors Ridge correctly argued that legal businesses can still be considered a nuisance in an inappropriate location. However, that wasn’t the case with Alpha OB/GYN since it was in a commercial park that housed other medical practices.

An attorney representing the office park association declined to comment on the pending litigation.

A state Court of Appeals ruled Monday that an abortion clinic could not be deemed a nuisance just because it attracts protestors. John McCosh/Georgia Recorder