Federal Judge Sides With New York Anti-Choice Protesters, Dismissing Clinic Workers’ Testimony as ‘Unreliable’

Federal Judge Carol Bagley Amon "diminished, she negated, she threw under the bus every lived experience of the staff, myself, and the escorts," said clinic founder Merle Hoffman.

[Photo: Judge Carol Bagley Amon]
Women’s rights activists found the decision disappointing and told Rewire.News they fear Judge Amon had her own bias in this case. Andrew Burton/Getty Images

A federal district court judge last week denied a preliminary injunction to prevent anti-choice protesters from demonstrating outside a clinic in Queens, New York, saying they did not “harass, annoy, or alarm” people during Saturday protests that have become routine since 2012.

Protesters outside the Choices Women’s Medical Center have for years blocked the sidewalk with large posters of dismembered fetuses, preaching loudly, forcibly handing out fliers, and issuing veiled death threats, according to testimony in the anti-harassment federal lawsuit brought by former New York Attorney General Eric Schneiderman. The suit asked the judge to issue a preliminary injunction against the protests and create a 16-foot buffer zone around the clinic. Judge Carol Bagley Amon of the United States District Court for the Eastern District of New York in Brooklyn denied the request for preliminary injunction, saying she did not find the center’s security camera videos and testimony to be “credible.”

Women’s rights activists found the decision disappointing and told Rewire.News they fear Judge Amon had her own bias in this case.

Nominated by President George H.W. Bush, Amon has freed a married couple who conspired to help a man who gunned down an abortion care provider in 1998. One of them, Dennis Malvasi, was a long-time anti-choice activist with a long arrest record. He had served time for trying to bomb New York-area clinics, according to CNN.

A reproductive rights activist for 46 years, Choices clinic founder Merle Hoffman said Judge Amon’s use of loaded language like “pro-abortion movement” in the decision betrays an inherently anti-choice viewpoint. The pro-choice movement focuses on choice, not on whether a person is pro- or anti-abortion, Hoffman said.

“You can be definitely anti-abortion for yourself, just not go out and work to make sure that your anti-abortion views affect every other woman in this country so using that word is a code word,” Hoffman told Rewire.News. “She diminished, she negated, she threw under the bus every lived experience of the staff, myself, and the escorts.”

“It’s as if I am really in an alternative universe,” she said. “The message is that it is free speech to call a woman a baby killer, to tell a mother and her child that her mother is coming in to kill her baby brother or sister, to tell somebody they are desecrating the legacy of Martin Luther King, to shame, to stigmatize, to bully, and to harass.”

Videos shown in court outlined the extent to which anti-choice activists bullied and blocked approaching patients and clinic escorts at the New York facility, including one of protesters harassing and screaming at a mother and her child, saying the mother was going to kill her baby. Some of the patients accosted were coming in for regular health care as the clinic provides more than abortion care, testimony indicated.

“I do not suggest that the escorts intentionally lied at the hearing. No doubt, their overstatements of what occurred and who caused it are colored by their views that the protesters are overzealous and that it is the escorts’ mission to shield patients from any interaction with them. Nonetheless, much of their testimony is unreliable,” the judge wrote in the 103-page decision.

Judge Amon said did not rely on the protester activity logs kept by clinic volunteers and staff because several were destroyed, and because she found them to be “hearsay,” “biased and unreliable.”

Attorney General Barbara D. Underwood’s office is considering an appeal.

“The evidence detailed a clear pattern of harassment, and we are reviewing our options,” said spokeswoman Amy Spitalnick. “This office won’t hesitate to take on the tough fights necessary to protect women’s fundamental rights—and that includes access to reproductive health care without harassment or threats.”

Abortion rights activists said they are “extremely disappointed” and said the ruling is a new indication of the Trump administration’s efforts to whittle away women’s rights and decimate Roe v. Wade.

“The clinic escorts take their roles of assisting women patients and documenting protester behavior extremely seriously, and discrediting their contributions is a disservice to the scores of patients who are forced to endure harassment to get to their doctor,” Jean Bucaria, deputy director of the National Organization for Women in New York City (NOW-NYC) told Rewire.News “These protesters are crossing a line, and it’s unfortunate that this decision could make it easier for them to continue to do so. No one should be forced to endure harassment and fear just to get to the door of their doctor’s office.”

NOW-NYC’s partner organization, Women’s Justice NOW, trains volunteers to shield patients and companions from protesters to escort them to and through the clinic doors.

Hoffman, who founded the clinic in 1971, took issue with the dismissal of their testimony, especially with Amon’s statement that the protesters are not there with “the intent of placing the escorts in fear of bodily harm or death,” but rather to preach their religious message.

“This is about polemic politics, propaganda but absolutely not the truth,” Hoffman said. “You have this, you have the SCOTUS decision that happened a couple weeks ago, fake clinics, you have an entire movement to eviscerate Roe, which they have practically done, to make sure that every obstacle is placed before a woman wanting to have an abortion, and to ensure that it will create a patchwork quilt of states where abortion will be legal in one state and illegal in another—just like slavery was.”

The defense is comprised of attorneys from conservative firms like the Liberty Counsel, flagged by the Southern Poverty Law Center for its anti-LGBTQ extremism, and the Thomas More Society, which has defended the Iowa Board of Medicine’s rule to ban telemedicine abortions. The Thomas More Society has also represented a Missouri anti-choice activist against Planned Parenthood trespassing charges and anti-choice activist David Daleiden, the criminally indicted architect of a smear campaign targeting Planned Parenthood.

Attorney Martin Cannon from the Thomas More Society, who represented ten of the 14 defendants, said in a press release that Schneiderman supported “the abortion lobby” and “was pushing a narrative not supported by the evidence. The case was an abuse of the rights of peaceful New York citizens, something Mr. Schneiderman had a duty to protect, not attack.”

Kenneth Griepp, the lead defendant and a pastor at the Church at the Rock in Brooklyn, an evangelical Christian congregation that organizes the anti-choice protests, said in a statement that the charges “were baseless and an offense to the First Amendment.”

Testimony and videos presented in court showed him preaching loudly, and telling protesters to be “much louder” next time.

Amos ruled that the New York City’s clinic access law stands and warned protesters against continuing to speak with people who have asked to be left alone.

“A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct .… Several of the defendants’ actions came close to crossing the line from activity protected by the First Amendment to conduct prohibited by [the New York City Clinic Access Act].”

Hoffman said this will not deter them.

“It means, in the near term, that Choices providers and patients will continue to face violence and intimidation while they provide and seek abortion care,” said Andrea Miller, president of the National Institute for Reproductive Health (NIRH).

New York City Councilmember Rory Lancman (D-Queens) said, “This decision sets a dangerous precedent.” 

Others worry this will further embolden anti-choice protesters and lawmakers and deter women from seeking critical health care.

“This is not a drill. Abortion is being restricted across the country,” said Bucaria of NOW-NYC. “Trump has proposed a domestic gag rule that could decimate access to abortion, and he is delivering on his campaign promise to appoint a Supreme Court Justice who will overturn Roe v. Wade. Women’s health and lives are hanging in the balance, and yet, even in this context, we have been unable to secure basic protections for women patients trying to get the health care they need.”

Laura McQuade, president and CEO of Planned Parenthood of New York City, said Judge Amon’s ruling “will embolden anti-abortion protestors and intensify their bullying and threats to patients seeking health care.”

“No one should have to be yelled at, intimidated, or shamed for accessing health care, ever,” McQuade said in a statement.