Appeals Court Trims NY’s Request for Anti-Abortion Group Records

MANHATTAN (CN) — A New York appeals court ruled Wednesday that two of Attorney General Eric Schneiderman’s 10 subpoena requests for an anti-abortion group’s records, to determine whether they were practicing medicine without a license, were unconstitutionally overbroad.

Writing for the unanimous four-judge panel of the Second Judicial Department, Associate Justice Jeffrey Cohen said the subpoenas must be “more narrowly tailor[ed] … to the Attorney General’s legitimate investigatory needs.”

Schneiderman’s subpoenas, served on May 17, 2013, sought information on the Evergreen Association’s corporate structure and facilities, the education and credentials of its staff, the materials it provides to clients, its medical equipment and supplies, and the source of its funding.

Modifying the 10 demands of Schneiderman’s subpoenas, the appellate court directed Evergreen to produce all documents necessary to comply with eight of Schneiderman’s demands as originally formulated, for in-camera inspection by the Westchester County Supreme Court, which will determine which documents pertain to medical or medical-related services and supplies, equipment or machines.

The appellate court separated demands 8 and 9 of Schneiderman’s subpoenas, which “must be quashed in their entirety because they seek documents that infringe on Evergreen’s First Amendment rights, including materials disseminated on websites, radio, and television and Internet broadcasts, and documents relating to the sources of Evergreen’s funding, which is not directly related to Evergreen’s alleged unauthorized practice of medicine.”

Cohen found that though Schneiderman was authorized to serve the subpoena, it “infringes on the First Amendment right of the petitioner and the petitioner’s staff members to freedom of association, and is not sufficiently tailored to serve the compelling investigative purpose for which it was issued.”

Evergreen claimed “that the subpoena, in its entirety, violates the First Amendment by chilling its right to oppose abortion in accordance with religious views, to communicate that opposition, and to attempt to persuade others toward that point of view.”

In a June 8, 2013 letter, Evergreen asked Schneiderman to withdraw the subpoena, calling it unconstitutional, overbroad and a politically motivated “fishing expedition.”

Schneiderman refused to withdraw the subpoena, and Evergreen sought a protective order and quashing of the subpoena.

Evergreen does business in New York City as the Expectant Mother Care/EMC Frontline Pregnancy Centers, operating 12 pregnancy centers, where its largely volunteer staff gives pregnant women advice and emotional support to encourage them not to have abortions.

The Expectant Mother Care’s website calls New York City the “Abortion Capital of America.”

Evergreen was represented by Christopher Ferrara with the American Catholic Lawyers Association in Bronxville. His office did not respond to requests for comment Thursday afternoon.

Justices Hector LaSalle, Colleen Duffy and John Leventhal concurred with Cohen.

The New York Attorney General’s Office declined to comment.

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