June 16, 2021

Court of Appeals Tosses $1.4M 'Nuisance' Verdict Against Abortion Clinic

By Katheryn Tucker | Daily Report | June 16, 2021

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The Georgia Court of Appeals has thrown out a nearly $1.5 million judgment against a clinic that was the target of a nuisance complaint because it performed abortions.

The court ruled that Dr. Daniel E. McBrayer Sr. is entitled to a new trial because the evidence did not support the verdict against him from a trial before Cobb County Superior Court Judge Lark Ingram. That jury awarded over $1.17 million against the doctor with attorney fees of over $311,000.

The clinic, which has closed, provided abortion care, among other medical services. It attracted anti-abortion protestors who surrounded it and targeted people entering and leaving. The lawsuit did not accuse the protesters of causing a nuisance but of reminding neighboring business owners of their feelings about what went on there, said Judge Ken Hodges. He wrote for a panel that included Presiding Judge Yvette Miller and Judge Trea Pipkin.

“McBrayer’s practice is likely to displease some in the community and attract protestors wherever it is located,” Hodges said. “If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere.”


Sean J. Young, legal director of the ACLU of Georgia, was one of the lawyers on the amicus brief filed by Georgia Abortion Clinics, American College of Obstetricians and Gynecologists, National Abortion Federation, Abortion Care Network and Society of Family Planning.

“The Georgia Court of Appeals agreed with the ACLU of Georgia that commercial landlords cannot file ‘nuisance’ lawsuits against abortion clinics simply because anti-abortion protestors have created a nuisance on the property,” Young said. “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. Rather than being a nuisance, the bustling marketplace of ideas is a feature of our pluralistic democracy.”

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Judge Kenneth Hodges III, Ga. Court of Appeals. (Photo: John Disney/ALM)