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Judge Finds NY Anti-Abortion Protests Aren’t Harassment

A federal judge in Brooklyn ruled late Friday that a group of anti-abortion protesters did not harass patients and escorts outside a Queens clinic, finding they have the right to continue their Saturday morning demonstrations that began in 2012.

BROOKLYN (CN) – A federal judge in Brooklyn ruled late Friday that a group of anti-abortion protesters did not harass patients and escorts outside a Queens clinic, finding they have the right to continue their Saturday morning demonstrations that began in 2012.

In June 2017, after a yearlong investigation into the protesters’ actions, former New York Attorney General Eric Schneiderman moved for a preliminary injunction to stop the demonstrations. His office alleged the group of mostly religious protesters outside Choices Medical Clinic in Jamaica, Queens had violated federal, state and city laws that protect people seeking reproductive healthcare.

But U.S. District Judge Carol Bagley Amon denied the injunction in a 103-page ruling issued late Friday, largely finding that prosecutors had not provided enough credible evidence to make their case.

The ruling is a narrow one, specific to Choices clinic, and Judge Amon warned the defendant protesters not to go overboard in the future. She noted that in a few instances, the protesters’ actions had come “close to crossing the line from activity protected by the First Amendment to conduct prohibited by [the New York City Clinic Access Act].”

“A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct,” she wrote. “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.”

In court papers and arguments during a three-week preliminary injunction hearing in February and March, prosecutors cited laws and ordinances that offer certain protections to people seeking reproductive health services. Use of force, threats and physical obstruction outside of clinics are all barred.

The protesters argued, however, that the First Amendment specifically protects their right to act as “sidewalk counselors.” The conservative law firm Thomas More Society, which represented several of the defendants, rejoiced at the ruling in a press release Saturday.

“We believe the court had clear recognition of what was happening in this case: The former attorney general, whose support of the abortion lobby is well-documented, was pushing a narrative not supported by the evidence. The case was an abuse of the rights of peaceful New York citizens, whose rights Mr. Schneiderman had a duty to protect, not attack,” Thomas More’s Martin Cannon, who represented 10 of the defendants, said in a statement.

Judge Amon reminded the parties in January that leafletting is a “form of really protected speech.”

In Friday’s ruling, she found the testimony of the prosecution’s witnesses, mostly clinic escorts, to be largely unreliable. She also wrote the video evidence the attorney general’s office presented did not show the protesters engaging in illegal activity.

“It is notable that, despite the availability of hundreds of hours of video evidence, the OAG has not cited a single video that corroborates the witness testimony claiming near-weekly violations,” Amon wrote. “Instead, the video evidence contradicts the escorts’ accounts of protestor conduct on specific occasions.”

When protesters made comments the clinic escorts perceived as threatening – such as telling them they “could die at any moment” shortly after a deadly shooting at a Colorado Planned Parenthood in 2015 – the defendants said it was simply part of their preaching style. Amon agreed.

“[Defendants] Thomas and R. George regularly preached about the fragility of life and the need to repent and accept God as one’s savior. The escorts were well aware of this,” the judge wrote. “Thomas has said, ‘[Y]ou never know when you’re going to die,’ virtually every Saturday, and that he almost always connected that comment to repentance and accepting God as one’s savior.”

Patients themselves did not testify for privacy reasons. In her ruling, Amon did affirm the authority of the attorney general’s office, through the principle of parens patriae, to step in and protect access to reproductive services for the citizens of New York State.

Though Schneiderman resigned in May amid allegations that he had physically abused four women, his replacement, Barbara Underwood, picked up the case where Schneiderman left off.

“This office won’t hesitate to take on the tough fights necessary to protect women’s fundamental rights – and that includes access to reproductive health care without harassment or threats,” Amy Spitalnick, a spokesperson for Underwood’s office, wrote in an email Monday. “The evidence detailed a clear pattern of harassment, and we’re reviewing our options.”

The lead defendant, Church at the Rock pastor Kenneth Griepp, released a statement Saturday through the Thomas More Society.

“We will continue to offer compassion to those who see abortion as the only way out of an unexpected pregnancy,” he said. “We said from the beginning that the charges against us were baseless and an offense to the First Amendment. We are grateful for the court’s thoughtful and detailed opinion that vindicates our rights.”

Though Amon found these protesters to be engaging in legal activity, abortion rights advocates reported in May that death threats against providers and patients nearly doubled in 2017, a surge they attributed to the current political climate. Incidents of trespassing and obstruction at clinics approximately tripled, they said.

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