Tuesday, July 24, 2018

New York AG Denied Injunction Against Anti-Abortion Protesters

In People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who have been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. The court describes the coverage of the statutes:
Using essentially identical language, 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.” 18 U.S.C. § 248(a)(1); see N.Y. Penal Law § 240.70(1)(a)–(b). NYCCAA prohibits a host of similar activities that prevent access to reproductive health care facilities. N.Y.C. Admin. Code § 8-803(a).
After a lengthy review of the evidence, the court concluded that protesters had not violated any of these provisions. For example, it said:
[T]he 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 interactions on the sidewalk outside Choices were generally quite short, and there is no credible evidence that any protestor disregarded repeated requests to be left alone over an extended period or changed his or her tone or message in response to requests to be left alone in a way that suggested an intent to harass, annoy, or alarm. The OAG has failed to show that any defendant had the intent to harass, annoy, or alarm a patient, companion, or escort; thus, it has failed to show that any defendant has violated NYCCAA, as interpreted by the OAG.
A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct. In a few instances noted, several of the defendants’ actions came close to crossing the line from activity protected by the First Amendment to conduct prohibited by NYCCAA. Engaging in concerted activity that suggests an intent to annoy rather than to persuade not only violates the law, but also would seem to be contrary to defendants’ stated objectives. Voluntarily discontinuing the practice of speaking to patients who have affirmatively asked to be left alone not only would evidence the defendants’ good will, but also would lessen the likelihood of future litigation directed toward their protest activities.
Courthouse News Service reports on the decision.