MANHATTAN (CN) – A lawyer for New York urged the Second Circuit on Thursday to reverse a ruling that she said is being exploited by anti-abortion protesters to harass patients outside a women’s health clinic in Queens.
“This conduct is still continuing,” Assistant Solicitor General Ester Murdukhayeva told a three-judge appeals panel this morning in the packed lower Manhattan courtroom.
New York brought the underlying suit for an injunction back in 2017 following a yearlong investigation into what it says was unnecessarily aggressive and harassing protest activity outside Choices Medical Clinic in Jamaica, Queens. Among other findings, the investigation revealed that protesters ran into patients, surrounded their car doors and spoke to small children. Murdukhayeva said they also propped up 3-by-5-foot signs on the sidewalk “in a way that restricts patients’ path” to the clinic door — all in violation of the 15-foot buffer zone that New York City’s clinic-access laws creates for such facilities.
Lawyers for the protesters, many of whom are affiliated with Church @ The Rock in Brooklyn, maintain they are legally exercising their First Amendment rights.
“This is a tough case,” said U.S. Circuit Judge Guido Calabresi, a Bill Clinton appointee, early in oral arguments this morning. “Let’s try not to exaggerate on either side.”
Martin Cannon, representing the protesters, said the sidewalk is not very long and takes 10 seconds to walk down.
“I don’t think there’s enough time to morph into harassment,” he said.
In denying the state an injunction last August, U.S. District Judge Carol Amon found the state had not provided enough evidence to make its case. Amon ruled narrowly with heavy emphasis on video evidence collected by the investigation.
The state argued in a brief, however, that Amon should also have considered the live testimony from volunteer clinic escorts during the injunction hearing, even though some parts of that testimony were found not credible.
Murdukhayeva also complained Thursday about Amon’s refusal to consider written escort recaps and patient questionnaires that helped to corroborate the live testimony and were sometimes backed up by video evidence.
U.S. Circuit Judge Debra Ann Livingston, a George W. Bush appointee, said she hadn’t seen evidence of obstruction in the videos. She noted that patients were able to quickly enter the clinics, from what she saw, and that clinic escorts outnumbered protesters.
Clinton-nominated U.S. Circuit Judge Rosemary Pooler rounded out the panel, and Brandon Bolling also argued on behalf of other protester defendants.
“I think it went all right,” Bolling’s co-counsel Cannon said outside the courtroom. “They asked good questions.”