A New York legal case reported on by Live Action News in 2019, which has implications for sidewalk counselors and prayer warriors outside abortion facilities nationwide, has taken an unexpected turn for the worse.
The lawsuit, brought in 2017 by then-New York Attorney General Eric Schneiderman, concerned 10 congregants at Brooklyn’s [email protected] who have sidewalk counseled outside of Choices Women’s Center in the Jamaica neighborhood of Queens for the last nine years. Schneiderman claimed the pro-lifers were guilty of violating the federal Freedom of Access to Clinic Entrances (FACE) Act by physically blocking women from entering the abortion facility, harassing them, and even issuing death threats. He claimed these alleged grievances merited issuance of a temporary injunction banning them from the sidewalks while the case was decided.
In 2019, the pro-lifers’ legal counsel, the Thomas More Society (TMS), presented oral arguments to the New York 2nd Circuit Court of Appeals after the AG’s office appealed the original judge’s ruling denying an injunction against the pro-lifers. That injunction was denied when plaintiffs presented contradictory and even plagiarized “evidence” from witnesses for the abortion facility and the AG’s office.
But in March of 2021, the pro-lifers received a stunning and legally unprecedented setback. The Appeals Court ruling reversed the original judge’s ruling in part, “issuing an opinion favoring the state’s position in this contentious court case that had featured fabricated evidence against the [email protected] defendants,” according to TMS.
Among the shocking components of the ruling, the Second Circuit claimed the following could be considered “physical obstruction” under the FACE Act:
- Approaching patients and attempting to hand them a leaflet, causing them to ‘deviate slightly from their path’ and to be delayed by ‘one second’ ‘at most’
- Causing a patient to walk around a life-advocate in the cramped, crowded context of the sidewalk entry area (crowded primarily by clinic ‘escorts’)
- Delivering a leaflet to the driver of a vehicle who has voluntarily stopped the car and rolled down the window to communicate with the life-advocate
In addition, “The court further held that even minor, inadvertent contact with a patient or an ‘escort’ could constitute a ‘use of force’ violation under FACE, and that a person commits ‘harassment’ under a local ordinance if the person continues speaking, even for a moment, with a person who has indicated even implicitly that he or she does not welcome the message.”
Unbelievably, “The court decided that such an implicit indication has occurred where a person remains silent or declines to receive printed information,” according to TMS.
The formal petition filed on April 7, 2021, by Thomas More Society requesting an en banc (before the entire bench) rehearing makes clear the gravity of this case.
“The 2-1 panel decision represents the broadest restriction of First Amendment expression ever imposed under the Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. § 248, and threatens vast amounts of core First Amendment activity,” reads the formal petition (emphasis added). The petition further notes that the recent court decision conflicts with legal precedent from both past Supreme Court case decisions in similar cases as well as the United States’ Court of Appeals for the Second Circuit’s own previous rulings.
Alarmingly, says TMS, “If allowed to stand, the panel opinion will criminalize a wide swath of protected speech and expression, including holding signs on public sidewalks, attempting to distribute leaflets, and engaging in consensual conversations with vehicle passengers.”
“It will also establish the novel precedent that innocuous statements that do not mention violence are nonetheless punishable as ‘true threats,’ based on the unrelated prior conduct of third parties,” TMS notes.
Every pro-lifer in America has a stake in this case, as [email protected]’s legal team warned that if the Appeals Court ruling is upheld, further targeted attacks on pro-lifers’ peaceful free speech near abortion facilities will certainly be launched by pro-abortion AGs across the country.
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