In an abrupt about-face, the Second Circuit Court of Appeals has vacated its own appalling ruling in New York vs. Griepp and has agreed to rehear the case. The now-vacated ruling could have been used to criminalize sidewalk counseling throughout the United States.
Life Legal filed an amicus brief on behalf of sidewalk counselors and advocates, including 40 Days for Life, Rev. Walter Hoye’s Issues4Life, and Pro-Life Action Ministries.
New York vs. Griepp began at the federal district court level in 2017. For years, the New York Office of the Attorney General (OAG) has been trying to hobble sidewalk counselors and prevent them from communicating with women entering abortion clinics. In 2018, the OAG sought an injunction against two groups and several individuals who sidewalk counsel outside Choices Medical Center in Queens.
The OAG spent months covertly recording and videotaping the sidewalk counselors to gather proof of their “violations” of the federal Freedom of Access to Clinic Entrances (FACE) Act. After reviewing the evidence, including video recordings and testimony by abortion clinic staff, the district court found no evidence that the sidewalk counselors were violating the law. That’s when the OAG appealed to the Second Circuit.
On March 10 of this year, in a bizarre decision, a 3-judge panel of the appeals court ruled that the sidewalk counselors had violated FACE, as well as state and local laws. Their “offenses” included
- offering literature to women and causing a delay of “one second, at most;”
- displaying signs that took up space on the sidewalk;
- touching a car while talking to the driver who dropped a woman off; and
- merely being present on the sidewalk so that someone entering the abortion clinic might have to walk around them.
The parties filed a petition for rehearing, and Life Legal filed an amicus in support of the petition.
Life Legal argued that the Second Circuit’s decision had transformed FACE from a federal remedy against threats, violence, and obstruction at abortion clinics into a micro-regulation of activities at the core of the First Amendment. We urged the court to rehear the case – which they have now agreed to do.
The rehearing argument has not been scheduled, but, in the meantime, the Second Circuit’s decision has been vacated and cannot be used to stifle sidewalk counselors elsewhere.