MARY REICHARD, HOST: Well, today, we begin the summer-recess edition of Legal Docket, having covered all the arguments and rulings of the Supreme Court.
This summer, I’ll talk about emerging legal issues and active lawsuits in the lower courts that I think will be of particular interest to you.
What I want to tell you about today is a courtroom battle over pro-life sidewalk counseling. This case is from New York City, involving a church in Brooklyn that sends advocates for the unborn to the front of an abortion business. They make a last-possible-moment plea for pregnant mothers to reconsider.
EICHER: This is the sound outside a Queens abortion business called Choices. A sidewalk counselor appeals to a woman walking into the building. They are both surrounded by abortion business escorts also talking to the woman.
RYAN: Life is so precious. If you are pregnant…
JOSEPH: Please, choose life. You will never regret it. Mamma! Choose life. At the end of the day….please choose life. Male voice: She’s just giving them an option to choose life.
REICHARD: Prisca Joseph is part of the sidewalk counseling ministry of Church at the Rock in Queens. Her pastor, Ken Griepp, leads the group. He talked to me about the fraction of a moment they have to turn a disastrous decision around.
GRIEPP: We have approximately ten seconds to speak with someone. The counselors are trained to express love, express the opportunities… access to facilities that we have for them. We tell them at three weeks the baby’s heart is beating and try to get them to see that their response to the pictures is a proper response. It’s ugly. Please, we’re appealing to you. Give us an opportunity to go through an alternative. And they’re trained to try to communicate within that ten seconds. And if a person stops and wants to speak, then we have literature we can go through with them and direct them to help.
I asked Pastor Griepp how does he know a woman is willing to listen? How can he tell the difference between a woman who is resolute in what she’s about to do from a woman who just needs someone to show her that there’s another way?
GRIEPP: We try not to assume where a person’s at. Even though that might be hard. I had one couple react to one of our counselors, in fact, the man started yelling and screaming and almost physically attacking one of our counselors, and they decided to keep their baby. And they’ve come to our church a few times, and they’re so thankful for what we did for them. But, initially, it was — the man was just totally beside himself. And you could say, “Well, I guess he doesn’t want to listen to us.” But we didn’t back down. We said, “Please. Look at the pictures. Please reconsider what you’re doing.” It’s not as if we’re trying to stand in his way. We’re not. We’re just appealing and, you know, we never know. We never know.
In June of 2017, Pastor Griepp and his wife learned New York’s attorney general filed a lawsuit against him and nine others in their sidewalk counseling ministry. The charges came under a federal law called Freedom of Access to Clinic Entrances Act or FACE. It forbids threats, obstruction, and violent activity outside abortion facilities.
GRIEPP: I wasn’t sure they were talking about us… it was a total shock. My wife began to receive phone calls from papers and magazines, and she said we haven’t even heard anything about this yet, so we were totally shocked. It was out of left field. … we’d been going to this abortion clinic for six years every Saturday morning and appealing for the life of the unborn. That’s our major focus. We have sat down with the local police, we’ve been told that we were doing absolutely nothing wrong at any time, and …And every Saturday we were out there just appealing to the people going in, “Save your unborn. Love your children. And that’s basically what we’re doing.”
The case went to trial earlier this year. It went on for three weeks with U-S District Judge Carol Bagley Amon requesting additional oral arguments in May.
My request to speak to someone at the attorney general’s office was ignored.
But I did talk to the lawyer defending the sidewalk counselors. That’s Steve Crampton with the Thomas More Society.
We started with the facts.
CRAMPTON: What’s gone on is in 2016 the attorney general …instituted an investigation that consisted in surveillance cameras being erected, undercover investigators coming out and posing as clients, trying to trip up the pro-life advocates. They had abortion escorts who were also armed with hidden cameras and microphones, trying to catch our folks in wrongdoing. And at the end of the day, what you have is almost no video evidence—I would say none that shows what the attorney general claimed was going on out there. But instead you have, I’d say, a model of exercising First Amendment rights on the public ways in America.
We continue the interview from here, where I ask if there is any middle ground at all that he can see.
You know, Mary, I really don’t think so. And part of the reason is this is sort of a cause case. If we were to compromise the rights of our clients under these circumstances, we would be—for one—rewarding the abusive process by the attorney general’s office in even bringing this lawsuit. And second, compromising fundamental First Amendment rights that ought to be precious not only to the pro-life advocates out there, but to American citizens everywhere that honor our constitution.
REICHARD: What does the law invoked by the attorney general actually say, beyond what I read in the intro?
CRAMPTON: Well, FACE itself, which, by the way, was enacted back in 1994 in response to the Operation Rescue kind of blocades where they really would shut down clinics for hours or sometimes even days at a time. And that kind of activity no longer occurs. So that’s kind of a context, but what FACE actually prohibits is the intentional use of force, threats of force, or physical obstruction to intentionally injure or intimidate or interfere with someone because she is seeking access or access to the clinic or ingress or digress to or from the clinic. But what you really have here, ironically enough,…is, I think, the first time ever a FACE case… that really shows the folks that are engaged in the physical obstruction and the acts of force and so forth here are not the pro-life advocates. It’s the abortion escorts. And these escorts even admitted under oath to stepping directly in front of our clients in an effort to stop them from communicating with the patients. They would create what they called a “green barricade” because they wore green vests, making a wall that keeps our clients from reaching the patients. …And, by the way, that is exactly the conduct that FACE would prohibit if our folks engaged in it. But because they are pro-abortion instead of pro-life, it’s not prohibited under the law.
REICHARD: And you refer to it as FACE, that is the Freedom of Access to Clinic Entrances Act — so I ask you, within the FACE law, isn’t there a specific exemption or a carve-out or a protection for sidewalk counselors?
CRAMPTON: Yes, it has this glowing sort of ode to freedom saying oh, nothing in this act shall be construed to apply against First Amendment speech and conduct. Well, that sounds great, doesn’t it? But at the end of the day, what is protected speech and conduct? It’s what the courts say it is and nothing more.
REICHARD: Arguments were in late May, I believe. How did those go?
CRAMPTON: The court has paid really close attention to questions and the answers, even leaning over to clarify, for instance, at one point the state was trying to make the case that one of our clients had engaged in threats against the lives of the escorts. And the court leans over and asks, “What was the context?” What he had said was, “You never know, you may die today.” As it turns out, he says that every time he’s out there because he’s engaged in evangelistic preaching. He then follows it up with a call to repentance. Obviously in the context of a call to repentance, that is not a threat against someone’s life—it is, instead, a plea that they consider their spiritual well-being… So we’re very optimistic as we move forward.
A ruling in this case could come anytime within the next six months.
And that’s this week’s Legal Docket.