Appeals court reverses own decision keeping pro-lifers away from abortion facility
NEW YORK, June 3, 2021 (LifeSiteNews) — The Second Circuit Court of Appeals ruled in favor of a pro-life group by granting them a rehearing and re-instating a district court decision allowing the pro-lifers to continue to gather outside an abortion facility and offer prayerful support to mothers.
The Thomas More Society has been representing the group — consisting of members of Brooklyn’s [email protected], including Pastor Kenneth Griepp — since 2017, when former New York Attorney General Eric Schneiderman filed a legal case against 13 pro-lifers who were engaging in peaceful pro-life activity and witness outside an abortion facility in New York.
Schneiderman accused the group of harassing mothers who were going into the abortion clinic, claiming that the group had issued threats and had been violent towards women going into the facility. He sought to establish a 16-foot buffer zone around the business, and to put an end to the weekly pro-life vigil, which he described as “a weekly pattern of threatening, obstructive and violent activity by a network of anti-abortion protestors at Choices Women’s Medical Center in Jamaica, New York.”
He also sought compensatory damages and additional financial penalties against the pro-lifers.
The Thomas More Society’s Martin Cannon argued that the case against the pro-lifers was “without basis,” as there was “not one documented and verified instance of the force, threat of force, physical obstruction, or following and harassing, of which he has accused our clients.”
Pro-lifers had been “peacefully” coming to the abortion center since 2012, the Thomas More Society argued, and the proposed injunction sought by Schneiderman was a violation of the pro-life group’s First Amendment rights. Peaceful pro-life activity is “specifically protected” both in New York’s own Freedom of Access to Clinic Entrances law and in the Federal Freedom of Access to Clinic Entrances Act, or FACE Act.
The district court issued a 103-page ruling in favor of the pro-lifers in 2018, in a hearing in which Schneiderman “failed to show that any defendant had the intent to harass, annoy, or alarm a patient, companion, or escort” entering the abortion facility.
Schneiderman himself was forced to resign following allegations of physical and sexual abuse. However, his successors in the Office of the Attorney General, Barbara Underwood and Letitia James, appealed the decision made by the district court.
Then, on March 10, 2021, the Second Circuit Court of Appeals reversed part of the district court decision, ruling against the pro-lifers, and classified certain actions as violating the FACE Act. Actions which the judges deemed to violate FACE Act, now included attempting to hand leaflets to people, causing them to be delayed by “one second … at most,” along with giving a leaflet to a car driver who had voluntarily stopped, rolled down the window, and engaged in conversation.
Furthermore, the court declared that minor, inadvertent contact with a patient could be viewed as a “use of force” and thus be a violation of the FACE Act.
However, after the Thomas More Society wanted an en banc hearing, the Second Circuit Court of Appeals issued an extraordinary ruling, reversing their March decision, and thus re-instating the original ruling of the district court, which rejected the state-desired sanctions against the pro-lifers.
The ruling read: “The petitions for rehearing are GRANTED. The panel hereby VACATES its previous opinion. Accordingly, the decision of the district court remains in place.”
The Thomas More Society noted that the Second Circuit only grants around .03% of petitions seeking a rehearing en banc.
Commenting on the court’s decision, Senior Counsel for the Thomas More Society, Stephen Crampton, welcomed the news. “It appears that even the judges in the majority on the panel found their original opinion indefensible. We are pleased that the fundamental First Amendment rights of our clients have been restored, and look forward to returning to the district court and finishing the case once and for all.”
“FACE was always about hindering pro-life advocates from reaching hurting women with life-saving information,” Crampton added. “But the panel majority all but eliminated First Amendment rights for these gentle and compassionate folks who sacrifice so much in order to speak up for those who cannot speak for themselves.”
The Thomas More Society has won a victory for its clients with the ruling, and dealt a blow to abortion advocates who seek to prosecute pro-lifers and restrict pro-life activities under the terms of FACE. It remains to be seen whether any further action will be taken, or whether the matter will now be considered settled.