Life Legal filed an amicus brief today in NY v. Griepp, a sidewalk counseling case currently in the Second Circuit Court of Appeals.
We are asking the Court to reconsider the case after it issued an appalling ruling last month.
In 2018, the NY Office of the Attorney General (OAG) sought a preliminary injunction to keep a group of sidewalk counselors from praying for and talking to women outside “Choices Medical Center,” an abortion mill in Queens. The district court denied the injunction, finding that the pro-lifers’ actions were so minor that they did not violate any state or federal laws, including the Freedom of Access to Clinic Entrances (FACE) Act. The OAG then appealed to the Second Circuit Court of Appeals.
On March 10, 2021, a three-member panel of the Court issued a 2-1 decision finding FACE Act and state law violations for such acts as:
- handing a pamphlet to a couple entering the abortion clinic who then “deviated slightly from their path“ to get around the sidewalk counselor
- holding signs that narrowed the public sidewalk leading to the clinic entrance
- providing literature and talking to individuals in cars that dropped off patients on the street in front of the clinic
Even the slightest failure to exercise extreme caution in one’s words, movements, and gestures on public sidewalks can result in felony convictions, federal imprisonment, and thousands of dollars in penalties.
This is a complete misreading of the FACE Act, which created federal penalties for certain types of criminal acts that were already prohibited under state law – things like violence, physical obstruction, causing bodily injury, and use of force. These are easily distinguishable from constitutionally protected free speech activities.
Our brief urges the Court to grant a rehearing of the case by the entire Court. The judge who wrote the current decision is a Clinton nominee with a history of pro-abortion opinions.
Obviously, we are alarmed about the implications to pro-life speech outside abortion clinics if this decision stands. We are particularly concerned that the Biden Administration will start bringing FACE prosecutions or civil actions against pro-life sidewalk counselors, as the Obama Administration did back in 2009-2010. The efforts of the Obama Department of Justice to weaponize FACE against sidewalk counselors largely failed, but this decision could change the outcome if it is not overturned.