Monday, March 15, 2021

Court of Appeals enjoins anti-abortion protesters from disrupting operations at abortion clinic

It took over a year for the Court of Appeals to decide this case, arising from the New York Atttorney General's effort to enforce the Freedom of Access to Clinic Entrances (FACE) law, which protects women from harassment while obtaining an abortion. The district court denied the AG's motion for a preliminary injunction against the organization that was protesting outside a Brooklyn abortion clinic. The Court of Appeals reverses and says a number of evidentiary errors denied the AG a fair trial. The Second Circuit also orders injunctive relief in favor of the abortion providers.

The case is People of the State of New York v. Griepp, issued on March 10. To win the injunction, the AG had to show the antiabortion group impeded access to the clinic. The AG claimed the activists would crowd patients and escorts with their bodies and signs, lean into cars to provide literature or counseling, made threatening comments, and tried to engage patients and escorts against their will. On appeal, the AG challenges a series of evidentiary rulings from the district court.

Evidentiary challenges are just about the hardest way to win a reversal in the Court of Appeals (Pooler, Calabresi and Livingston [in dissent]) following trial. But a little-known fact is that hearsay is admissible in preliminary injunction hearings. The district court also does not have unlimited discretion to keep out evidence that might make a difference at the trial. These principles guide the AG to victory on appeal.

One evidentiary problem was the district court allowed Protester Experience Questionnaires (PEQ) and Escort Recaps into the record even though they were hearsay. These are written accounts that contemporaneously record the goings-on outside the clinics so the clinic has a record of what kind of harassment it endured while trying to go about its business. But the district court afforded these documents no evidentiary weight because the clinic was able to prove these facts through live testimony. That was wrong, the Court of Appeals says, because the Escort Recaps still provided relevant information, even if some people exaggerated the facts in their recaps. The PEQ's were afforded no weight at trial because the district court said that only a sample were admitted in evidence and were not representative. That was wrong, the district court said, because they were useful to prove specific examples of protester misconduct. Excluding this evidence at the hearing was not harmless error because the Recaps contained enough relevant and useful information to prove the protesters had physically obstructed clinic patients. The same cannot be said about the PEQ's; they do not contain the kind of useful information found in Recaps. I will tell you this: if you want a good discussion about the rules of evidence in the context of injunction hearings, this is the case for you. The Court worked hard on this case, going through all the exhibits and extensive trial testimony.

The Court of Appeals ultimately holds the AG was entitled to a preliminary injunction after all, and that she had proven a likelihood of success on whether the protesters had physically obstructed patients, threatened the use of force against them, and violated the rules against follow-and-harass. The Court also finds that, without the injunction, the clinic patients will suffer irreparable harm and that without the injunction, there will be future violations of the FACE Act. The Court also holds the FACT Act does not violate the First Amendment right to speech and protest, as it prohibits true threats, which fall outside the First Amendment's protections.

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