MANHATTAN (CN) — At the Second Circuit on Tuesday representatives for New York’s Westchester County defended an ordinance barring people from harassing anyone entering or exiting a reproductive health care facility.
After the U.S. Supreme Court stripped the constitutional right to abortion in 2022's Dobbs v. Jackson Women’s Health Organization, Westchester County enacted “Chapter 425” of its local laws which prohibits behavior that harasses individuals seeking to exit or enter reproductive health care clinics.
Two anti-abortion groups — 40 Days for Life and White Plains 40 Days for Life — alongside individual abortion foes, claim the ordinance seeks to target “pro-life sidewalk counselors with fines” and imposes speech restrictions that prevents them from offering alternatives to abortion for expectant mothers entering and exiting reproductive health care clinics.
“Fearing criminal and civil liability for violating one or more of Chapter 425’s web of speech restrictions, the individual plaintiffs have ceased their sidewalk counseling and even their very presence in the immediate vicinity of the abortion facilities while the organizational plaintiffs have suffered injury to their pro-life missions, including sidewalk counseling,” the advocates say in their appellate brief.
The plaintiffs seek an injunction against the enforcement of the law, specifically as it seeks to prevent anti-abortion activists from “sidewalk counseling.” But a lower court found they lack standing to challenge all supposed speech restrictions except one — the “follow and harass” provision, which bars someone from following another person entering or exiting a clinic after already being told by the person to stop. That, the lower court found, could involve "sidewalk counseling" which is protected free speech.
The plaintiffs' attorney told the Second Circuit panel Tuesday the ordinance is flawed.
“The problem is you have a statute laden with vague, undefined terms such as ‘implied requests to cease,’ ‘follow,’ ‘harass,’” attorney Christopher Ferrara with the Thomas More Society told the panel. “There isn’t a criminal offense, and there should not be under the First Amendment, for simply asking someone to engage in a conversation more than once."
But U.S. Circuit Judge Gerard E. Lynch, a Barack Obama appointee, wondered whether continuing to approach people after they’ve been asked to stop should be protected.
“You have a right to talk as much as you want. And if I overhear it, that’s my problem. I don’t have a right to stop you,” Lynch said. “But if you get in my face, why isn’t there some right on my part to say no.”
Ferrara argued the ordinance specifically targets anti-abortion advocates and said it would not be enforced in other social movements.
“Only in the contest of pro-life sidewalk advocacy does it seem that we get arguments about how this particular type of restriction is reasonable when it would never be tolerated in the context of any other social advocacy,” Ferrara said.
Lynch pushed back. “Are you sure about that?” he asked. “I rather imagine if people were standing outside of places of worship, for example, and persistently talking to parishioners who don’t want to hear about it, I would imagine the legislators might get busy on it.”
John Nonna, an attorney representing Westchester County, told the panel the ordinance does not ban anti-abortion activists from sidewalk counseling or protesting, but restricts their ability to interfere with individuals seeking medical attention at the health care centers.
“Anti-abortion advocates can counsel, hold up signs, hand out leaflets, stand, approach people, up to the doors of a reproductive health care center,” Nonna said. “The law therefore, in our view, leaves open ample alternative means of communication of a message and is simply a place of manner restriction.”
But Lynch also questioned the statute’s language and suggested its prohibition of behavior that “seriously annoys another person” is vague.
“I get annoyed pretty easily. I get annoyed sometimes with lawyers, that doesn’t give me the right to chuck them out of the courtroom,” Lynch said.
Nonna responded that the statute applies to “a reasonable person who’s doing the act, whether they would intend to annoy" another.
U.S. Circuit Judge Raymond J. Lohier, a Barack Obama appointee, and U.S. Circuit Judge Jose Cabranes, a Bill Clinton appointee, rounded out the panel.
Neither party’s attorneys responded for comment.
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