- The Washington Times - Thursday, June 10, 2021

A federal appeals court has agreed to rehear a case involving pro-life sidewalk counselors who argue that New York’s attorney general is violating their free speech by barring them from advocating against abortion outside clinics.

A group of judges on the U.S. Court of Appeals for the 2nd Circuit, which rarely grants rehearings, vacated a three-judge panel’s ruling against the counselors and asked for new briefings from both sides by June 25.

“Sidewalk counseling involves truly core First Amendment activity and given the prevalence of abortion clinics across the country and the passions of folks on both sides of that issue, sidewalk counseling may be the most frequently engaged in conduct on a public sidewalk in the entire country,” said Stephen Crampton, an attorney with the Thomas More Society, which is representing the pro-life group.

“These pro-life advocates, in particular, are so faithful and committed they will be out there come hell or high water,” Mr. Crampton added.

The New York attorney general’s office did not respond to a request for comment.

The state of New York brought more than a dozen pro-life protesters to court in 2017, arguing that they had violated the Freedom of Access to Clinic Entrances (FACE) Act, which makes it a federal crime to obstruct the entrance of a clinic or to harass patients and staff.

The state’s lawsuit said the group gathered outside of Choices Women’s Medical Center in Jamaica, New York, every Saturday since 2012 and the gatherings have grown increasingly violent, prompting the staff to call police.

“Protesters have subjected incoming patients to a barrage of unwanted physical contact, as well as verbal abuse, threats of harm, and lies about the clinic’s hours and its services. Protesters descend on approaching patients to harangue them, sometimes pinning them against the clinic’s exterior wall or parking meters, and even forcing them into the street,” the original complaint read.

The pro-life protesters have argued that FACE is unconstitutional and a violation of the First Amendment because it targets protesters only on one side of the abortion debate.

“I believe, strongly, that FACE itself is a viewpoint-based discriminatory act that ought to be stricken,” Mr. Crampton said. “We can’t really seem to get traction. The courts don’t want to go there.”

A federal court had ruled in favor of the sidewalk counselors, but a three-judge panel of the 2nd Circuit reversed that decision. The court’s decision for a rehearing gives the pro-life protesters a second chance to make their case.

Sidewalk counselors have been brought to court over their free speech rights for years. This week in Louisville, Kentucky, a Catholic group challenged a new ordinance that bans assembly on public sidewalks, arguing that it’s a violation of the First Amendment.

The last time the Supreme Court weighed in on the legality of buffer zones around abortion clinics was in 2014 in McCullen v. Coakley.

The court ruled 9-0 that Massachusetts’ 35-foot buffer zone around abortion clinics infringed on the free speech rights of pro-life sidewalk counselors. But the court did not set a definitive standard for how far a state can keep protesters away from clinics and the patients.

Since the court’s makeup has changed since 2014 with a more conservative bent, it’s possible a new case could yield a result more friendly to pro-life groups.

“There are free speech implications. You’re telling people they can’t speak on a sidewalk,” said Josh Blackman, a professor at South Texas College of Law. “The court would be more skeptical of these types of measures.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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