Counsel for Kim Davis Defends NYC Abortion Protester

BROOKLYN, N.Y. (CN) — A pre-K teacher whose anti-abortion protests drew the threat of a federal injunction tapped the attorneys of anti-gay court clerk Kim Davis for the upcoming legal battle.

One of 14 men and women sued by the state in June, Scott Fitchett Jr. has admittedly spent an average of two Saturdays per month for the past two years protesting outside the Choices Women’s Medical Center in Queens.

Pictured in the state’s video evidence as holding the sign “Christ Died for Sin,” 37-year-old Fitchett insists that he never used intimidation to spread his message.

“As a long-time street preacher and pro-life advocate, I am always careful to obey all applicable laws and to limit my expressive activities to public ways,” an Oct. 6 declaration by the teacher states.

New York Attorney General Eric Schneiderman meanwhile painted the protest in darker colors.

“Scott Fitchett, Jr. routinely follows and harasses patients approaching the clinic entrance, screaming that they are killing their children and shedding innocent blood,” the state’s complaint says.

(Editor's note: Linking to this article after it was published, a clinic escort who serves on the board of directors for the New York Abortion Access Fund posted on Twitter about her experience with Fitchett.

https://twitter.com/HelloCVH/status/918081725208645633

"Scott screamed at me that I'm a whore so loudly that my ears rang for hours afterward," Caitlin Van Horn tweeted on Wednesday morning. "See you in court, jagbag."

She declined to elaborate further in an interview.)

Schneiderman brought his June lawsuit on the heels of a yearlong investigation into protests outside Choices. One of the largest clinics in New York that offers abortion services, Choices opened in Jamaica, Queens, two years before the Supreme Court’s 1973 decision Roe v. Wade.

Choices has been a magnet for protest since its founding, but Schneiderman focused on the last five years of these demonstrations, calling the degree of harassment his investigators uncovered “horrifying” and “illegal.”

“The law guarantees women the right to control their own bodies and access the reproductive health care they need, without obstruction,” he said in June.

Suing under the federal Freedom of Access to Clinic Entrances Act and its state analogues, Schneiderman succeeded four years ago in creating a buffer zone outside a Planned Parenthood site in Utica, New York.

In their brief opposing Schneiderman’s request for an injunction, Fitchett’s attorneys put forward a First Amendment defense that previously failed upstate.

“It is inexcusable for the highest legal officer of the state of New York to declare war on free speech and the pro-life message, and we hope the court will turn back this assault on our most cherished liberties,” Liberty Counsel attorney Roger Gannam said in a statement.

Described as an anti-LGBT extremist group by the Southern Poverty Law Center, Liberty Counsel invoked religious freedom as well when a federal judge jailed Kim Davis for refusing to sign same-sex marriage licenses following the Supreme Court’s ruling in Obergefell v. Hodges.

The group intervened in 2012 as well when anti-gay evangelist Scott Lively was accused of laying the groundwork for Uganda’s criminalization of homosexuality, making some infractions punishable by the death penalty.

Liberty Counsel failed in both cases to argue that their clients were persecuted for articulating Christian viewpoints, but Gannam floats the same argument against Schneiderman.

“The attorney general cannot carry his burden with respect to defendant Fitchett because the ‘conduct’ targeted is Fitchett’s speech protected by the First Amendment,” he wrote in a 10-page memorandum.

Schneiderman insists meanwhile that the 15-foot buffer zone mandated by the New York City Clinic Access Act is narrowly tailored, and that the content of Fitchett’s speech is immaterial when he violates it.

Federal laws give greater latitude for judges to determine how much space women should be given to be shielded from protests outside clinics.

“There is no formulaic size for a buffer zone; rather, courts exercise their discretion to craft a zone that eliminates the threat to governmental interests posed by the defendants’ conduct while protecting defendants’ First Amendment rights,” Assistant Attorney General Sandra Pullman wrote in a 48-page memo seeking a preliminary injunction.

Fitchett acknowledges having worn a GoPro video camera at the protests. Though he says the camera protects his right to be there, Pullman notes that patients of the clinic might take a different view of being videotaped.

"This conduct is particularly threatening given the history of anti-abortion websites and their role in inciting violence against individuals targeted on their sites," her memo states.

Fitchett insists that he never has published any of the recordings online.

The parties will argue their cases before U.S. District Judge Carol Bagley Amon on Oct. 26.

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