Second Circuit Reverses Course, Affirms Judgment of NO Injunction Against Sidewalk Counselors

Pro-lifers outside Jamaica, Queens, New York Abortion Clinic

A panel of Second Circuit judges has apparently thought better of using federal and state laws to shut down sidewalk counseling outside an abortion clinic in Jamaica, Queens, New York.  

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, an abortion clinic which provides abortions up to 24 weeks.    

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 denied the OAG’s motion for a preliminary injunction restricting the sidewalk counselors’ leafleting and picketing. That’s when the OAG appealed to the Second Circuit.   

On March 10 of this year, a panel of the appeals court ruled 2-1 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.   

On behalf of sidewalk advocates such as 40 Days for Life and Pro-Life Action Ministries, 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 and reconsider this dangerous precedent.  

In May, the panel vacated its original decision and ordered further briefing on some issues. Again, Life Legal filed an amicus letter brief raising issues of concern to pro-lifers across the country. 

Just last week, the Second Circuit released its final decision on the appeal, affirming the trial court’s decision denying the Attorney General a preliminary injunction!  

While the lawsuit is not over yet for these brave sidewalk counselors, for now they can continue their life-saving work unencumbered by an injunction. Pray for their ultimate victory in this unjust lawsuit!