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By Meg McEvoy
The New York attorney general failed to persuade a federal court to issue an order stopping anti-abortion protesters from demonstrating outside a women’s health clinic in Queens, N.Y.
The U.S. District Court for the Eastern District of New York denied July 20 the state Office of the Attorney General’s petition for an injunction blocking the demonstrators, finding that the OAG hadn’t adequately alleged intent to injure, intimidate, or interfere under state and federal laws that protect access to clinics. The OAG also failed to allege harassment under a New York City ordinance with similar prohibitions, the court found.
Merle Hoffman, president and CEO of Choices, the clinic where the protests occurred, told Bloomberg Law, “it’s an egregious decision.”
"[Judge Carol Bagley Amon] basically twisted herself around in a pretzel to not find any of the patients, the staff, or any of the women at all credible,” Hoffman said.
Martin A. Cannon, an attorney for the defendants who litigates on behalf of abortion protesters nationwide, told Bloomberg Law that had the OAG won its case, it would have “cast a shadow over sidewalk advocates nationwide.”
Anti-abortion advocates lauded the decision, calling it a “victory” for “a group of peaceful pro-life advocates in an unsubstantiated harassment lawsuit,” the Thomas More Society, a nonprofit law firm, told Bloomberg Law in a statement.
The OAG’s office said the ruling will not affect its ability to obtain buffer zones around clinics or sue over more aggressive conduct by abortion protesters.
Since 2012, protesters from several church and anti-abortion groups have worked in Saturday morning shifts, holding signs, preaching, and offering literature and counseling outside the Choices medical center in Jamaica, Queens. Choices is an ambulatory surgery center that provides abortions, ob-gyn services, prenatal care, and other women’s reproductive health treatments.
Protesters hold large signs that show the remains of an aborted fetus, and advocates make “multiple passes” at approaching Choices patients, even after they have said they do not want to be spoken to, according to the court.
In response to the protests, Choices began an escort program in which clinic volunteers greet and walk patients down the sidewalk toward the clinic entrance.
The OAG, under former New York Attorney General Eric Schneiderman, filed a lawsuit against 14 of the protesters in June 2017, alleging violations of the federal Freedom of Access to Clinic Entrances Act and the New York Clinic Access Act, as well as a New York City ordinance that protects clinic access.
Both FACE and NYSCAA provide penalties for those who (1) by force, threat of force, or physical obstruction, (2) intentionally injure, intimidate, or interfere with a person, or attempt to do the same, (3) “because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.”
The NYC ordinance has similar prohibitions but is slightly broader. It prohibits “knowingly interfer[ing] with the operation of a reproductive health care facility.”
The court found most of the clinic volunteers’ recollections of the protesters’ behavior to be biased and unreliable. The court relied on video and audio recordings taken by the OAG and admissions by defendants.
The court found that protesters filming people who were going into the clinic for treatment was not done with intent to injure, intimidate, or interfere with clinic access.
Continuing to engage patients and their companions after they have been told to stop does not necessarily reflect an intent to harass, annoy, alarm, or indicate an illegitimate purpose, the court found.
“The OAG has introduced evidence that the protestors sometimes continued attempting to engage with a person who asked to be left alone and that the protestors sometimes attempted to engage people who were not receptive to a different protestor’s overtures. Although such conduct can be circumstantial evidence of an intent to harass, annoy, or alarm, it does not establish that intent here,” the court found.
Some of the protesters’ conduct did violate the law, the court found, but because the judge thought the behavior was not likely to be repeated, she did not think a preliminary injunction would be appropriate.
The court referenced that in several instances the protesters’ behavior was “close to the line” and cautioned that its decision “should not embolden the defendants to engage in more aggressive conduct.”
Amy Spitalnick, communications director and senior policy adviser with the OAG, told Bloomberg Law that the office is weighing its options.
“This office won’t hesitate to take on the tough fights necessary to protect women’s fundamental rights—and that includes access to reproductive health care without harassment or threats,” Spitalnick said. “The evidence detailed a clear pattern of harassment.”
The OAG was encouraged that the court found the office had standing to sue on behalf of the clinic.
Spitalnick also noted that the court declined to rule that the New York City clinic access ordinance was unconstitutionally vague and overbroad.
The case is People v. Griepp, E.D.N.Y., No. 17-CV-3706 (CBA), 7/20/18.
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