In an extraordinary order on May 28, 2021, the Second Circuit panel granted petitions for rehearing and vacated its opinion in the case of People of New York v. Rev. Kenneth Griepp et. al. in its entirety, despite having taken a year and a half to decide the appeal and having issued a 119-page majority opinion. The order expressly stated that the district court decision is now back in effect. According to statistics, the Second Circuit only grants about three one-hundredths of 1 percent (0.03%) of petitions seeking rehearing en banc.

Stephen Crampton, Senior Counsel for the Thomas More Society, which is representing the pro-life counselors, said: “It appears that even the judges in the majority on the panel found their original opinion indefensible. We are pleased that the fundamental First Amendment rights of our clients have been restored, and look forward to returning to the district court and finishing the case once and for all.”

The case was initially filed in June 2017 by former New York Attorney General Eric Schneiderman against a group of peaceful pro-life advocates from Brooklyn. Ten members of Brooklyn’s Church@TheRock, including the pastor, Rev. Kenneth Griepp, found their First Amendment rights to counsel women now under threat. New York has its own Freedom of Access to Clinic Entrances law which is intended to prevent actual, intentional interference with access to a clinic by means of force, threats of force, or physical obstruction. Peaceful pro-life activity is specifically protected, just as it is in the federal Freedom of Access to Clinic Entrances Act (“FACE”).

The Thomas More Society argued the case was without merit because it was actually an assault on the First Amendment rights of pro-life sidewalk counselors who have been coming to Choices Women’s Medical Center in Jamaica-Queens weekly to peacefully offer information and alternatives since 2012.  The pro-lifers were falsely accused by former New York Attorney General Eric Schneiderman of harassing women who were going into the abortion facility. One of the church’s attorneys, Thomas More Society Special Counsel Martin Cannon, told One News Now that “from the very beginning of the case, it was apparent to us that the evidence just didn’t match Mr. Schneiderman’s accusations. In its 103-page ruling on the Attorney General’s motion for preliminary injunction, the district court ruled that the injunction should not be issued and that the pro-life sidewalk counselors could continue to gather outside an abortion clinic in Queens, New York and minister to women.

“FACE was always about hindering pro-life advocates from reaching hurting women with life-saving information,” Crampton added. “But the panel majority all but eliminated First Amendment rights for these gentle and compassionate folks who sacrifice so much in order to speak up for those who cannot speak for themselves.”

The order granting the petitions for rehearing effectively erased the panel majority’s opinion altogether.

The ruling leaves some question as to whether there may be any further proceedings on rehearing in the U.S. Court of Appeals for the Second Circuit in Manhattan, or whether the appeal has now been finally determined and any further proceedings will take place before the district court in Brooklyn. While we will follow up with a further report as soon as there are further developments, it is clear at this point that this is a great victory for our clients, the pro-lifers and sidewalk counselors from Brooklyn's Church @ the Rock.

Read the order of the Second Circuit Court of Appeals in People of the State of New York v. Griepp, issued May 28, 2021, here.