MANHATTAN (CN) — In a reversal of its previous ruling, the Second Circuit said Thursday it is not appropriate to issue a temporary injunction aimed at curtailing the conduct of abortion protesters outside a New York City clinic.
It’s a case that has pitted the right of abortion access against anti-abortion protesters' First-Amendment rights. In 2017, the New York Attorney General's Office accused about a dozen protesters of threatening and harassing people who enter a clinic in Queens, New York, that performs abortions, in some cases allegedly obstructing access to the building.
While the Second Circuit told U.S. District Judge Carol Bagley Amon to reconsider her decision not to issue a preliminary injunction in the case in March, it was the Manhattan-based appeals court that did the reconsidering after the 13 defendants requested a rehearing.
In Thursday's ruling, U.S. Circuit Judge Guido Calabresi, a Bill Clinton nominee, declined to second-guess the federal judge’s decision not to issue a preliminary injunction against the Christian protesters, saying the state attorney general did not demonstrate that irreparable harm would come about if an injunction were not in place.
“Some members of this court might have reached different conclusions, both as to the existence of violations and as to the appropriateness of a preliminary injunction,” Calabresi wrote in his 11-page ruling. “But many of the issues are close ones, and we cannot say that the district court abused its considerable discretion in denying a preliminary injunction.”
The ruling was not the first time Calabresi commented on the case’s thorny nature. During oral arguments in September 2019, where the attorney general's office told the court the protests have continued outside the clinic, Calabresi noted it was a “tough case.”
In June 2017, then-New York Attorney General Eric Schneiderman sought to address the protests – often held Saturday mornings – on the sidewalks outside the Choices Women’s Medical Center in Queens. In his federal lawsuit, the attorney general said the protester have used signs to clog sidewalks, have touched or grabbed people attempting to enter the clinic, and filmed patients and clinic staff.
Schneiderman argued the actions of the protesters, a mix of individuals from two churches and a ministry, violated local, state and federal laws, namely the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act and the city’s Access to Reproductive Health Care Facilities Act.
According to the attorney general's complaint, one protester issued a threat during a June 2016 demonstration: “So you don't know the day of your death. Calamity might strike any moment.”
However, Amon, the district judge hearing the case, determined that the talk of death was the Christians’ preaching style and their leaflets were protected speech. Furthermore, the George H. W. Bush appointee decided the video footage the attorney general presented did not show any laws being broken.
Stephen Crampton, senior counsel with the public interest law firm Thomas More Society, said the Second Circuit’s “virtually unheard of” initial reversal in March came as “a bit of a shock to us.”
The Thomas More Society represents 10 of the protesters who are members of the nondenominational congregation Church at the Rock. The protesters, Crampton said, have mere seconds to communicate “life-changing information” but the law regales them to second-class citizen status.
As the dispute goes back to Amon to consider the merits of the case, Crampton said there is little to add to the record. When considering the preliminary injunction, the court heard 15 days’ worth of testimony.
“I think our clients also would be all in favor of seeing all free speech folks on the public sidewalks of New York City free of the burden of trying, A, to figure out what in the world this follow-and-harass kind of law means and, B, having groups like the state attorney general chasing after them and making up charges,” Campton said.
Moving forward, Calabresi noted the case will raise questions involving “difficult, unresolved, issues of state law.”
The attorney general argued New York City’s law regarding access to reproductive clinics is broader than the similar state and federal legislation. Meanwhile, the protesters say the local statute is unconstitutionally vague.
Calabresi was joined on the Second Circuit panel by U.S. Circuit Judge Rosemary Pooler, a fellow Clinton appointee. and Chief U.S. Circuit Judge Debra Ann Livingston, appointed by George W. Bush.
The New York Attorney General's Office, now led by Letitia James, did not return an emailed requests for comment.
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