In a battle to uphold their First Amendment rights, peaceful pro-life advocates have requested an en banc (before the entire bench) rehearing by the United States Court of Appeals for the Second Circuit of the decision rendered by a three-judge panel. Thomas More Society attorneys have filed the petition for a rehearing on behalf of pro-life sidewalk counselors from Brooklyn’s Church@TheRock. These church members and their pastor, Rev. Kenneth Griepp, were originally targeted by now-disgraced former New York Attorney General Eric Schneiderman.

The federal lawsuit, brought against Pastor Griepp and nine members of his congregation in June 2017, charged the Church@TheRock members with harassment of abortion-bound women outside the Choices Medical Clinic abortion facility in Jamaica, Queens, despite the fact that the attorney general’s lengthy targeted surveillance campaign produced no evidence that they violated the law.

The church members regularly engaged abortion-bound women in discussion, offering information about life-affirming alternatives and a willingness to listen. They also shared factual information and participated in prayer.

Schneiderman labeled their speech “harassment” and asked the court to declare it to be “obstruction” under the Federal Freedom of Access to Clinic Entrances (FACE) Act, which prohibits blockage of abortion facility doorways.

“The FACE Act specifically exempts constitutionally protected advocacy from its prohibitions,” explained Thomas More Society Senior Counsel Stephen Crampton. “We argued that almost the entirety of the attorney general’s case consisted in prosecution for just such protected expressive activity. The district court agreed, rejected the credibility of the state’s witnesses, the merits of the state’s arguments, and the request for the injunction itself.”

“Had Schneiderman succeeded,” observed Crampton, “the current United States Attorney General, operating under a pro-abortion administration, would be filing similar complaints in every state, and every pro-abortion state’s attorney general in the country, like Schneiderman, would be doing the same. The effect on pro-life sidewalk advocacy across the country would be disastrous. The abortion industry was watching this case, and still is.”

After a sexual abuse scandal forced Schneiderman out of office, his successors, first Barbara Underwood, and then Letitia James, each have continued to prosecute the baseless lawsuit.

Crampton and Thomas More Society Senior Counsel Martin Cannon represented the Church@TheRock throughout the lengthy trial in New York. The trial was marked by notorious moments. The owner of the Queens abortion facility – one of the biggest and oldest in the country – called pro-life advocates the “American Taliban.” A prosecution witness falsely accused the church members of violence, but her testimony was later shown to have been lifted from an article about the actions of other people at a different abortion clinic several years earlier.

The July 2018 decision by U.S. District Judge Carol Bagley Amon, of the Eastern District of New York, denied the state’s request for a preliminary injunction in People v. Griepp et al. On March 10, 2021, the Second Circuit reversed that decision in part, issuing an opinion favoring the state’s position in this contentious court case that had featured fabricated evidence against the Church@TheRock defendants.

The Second Circuit classified the following as “physical obstruction” under the FACE Act:

• Approaching patients and attempting to hand them a leaflet, causing them to “deviate slightly from their path” and to be delayed by “one second” “at most”
• Causing a patient to walk around a life-advocate in the cramped, crowded context of the sidewalk entry area (crowded primarily by clinic “escorts”)
• Delivering a leaflet to the driver of a vehicle who has voluntarily stopped the car and rolled down the window to communicate with the life-advocate

The court further held that even minor, inadvertent contact with a patient or an “escort” could constitute a “use of force” violation under FACE, and that a person commits “harassment” under a local ordinance if the person continues speaking, even for a moment, with a person who has indicated even implicitly that he or she does not welcome the message. The court decided that such an implicit indication has occurred where a person remains silent or declines to receive printed information.

Read the Petition for Panel Rehearing En Banc here.