On Friday, in a rare move, the Second Circuit Court of Appeals pulled a 100-plus page opinion it had issued in March against a group of pro-life protestors. The short three-sentence order in People of the State of New York v. Griepp—in which the court, without elaboration, granted rehearing of the case, vacated its previous opinion, and reinstated the district court’s decision—tells none of the bigger story of this continuing saga: a story of complicity between the abortion industry and leftist government officials.
The Griepp case dates back to June 2017, when, following a year-long investigation he launched into peaceful pro-life protestors, then-New York Attorney General Eric Schneiderman filed suit against 13 individuals for alleged violations of the federal Freedom of Access to Clinic Entrances Act (FACE) and the state and city equivalents.
FACE (and the state and city corollaries) provides for both civil and criminal penalties for any individual who, “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.”
Although Schneiderman initiated the civil lawsuit against the protestors, he later resigned in May 2018 following reports he assaulted four women. The case against the Griepp defendants continued under his successor.
Two months after Schneiderman resigned in disgrace, and after hearing extensive testimony and viewing videos capturing the defendants’ conduct outside the Queens Choices Women’s Medical Center, a federal judge rejected the Office of Attorney General’s request for a preliminary injunction to enjoin the protestors from speaking outside the abortion facility.
Abortionists Working with State Officials
While the district court’s decision represented a victory for the pro-life defendants, most of whom were members of either the Church at the Rock or Grace Baptist Church, Judge Carol Bagley Amon’s opinion also exposed the deceit of the abortion apologists and the symbiotic relationship between the abortion facility and the AG’s office. As I reported shortly after Judge Bagley Amon handed down her decision:
In her 100-plus page order, Judge Carol Bagley Amon, a George H.W. Bush appointee, dispassionately detailed Schneiderman’s efforts to keep the Christian protestors quiet and why. At a press conference held outside the Choice facility to announce his lawsuit against the protestors, Schneiderman declared this is ‘not a nation where you can choose your point of view.’
In furtherance of these efforts, the attorney general dispatched undercover investigators to Choice, with most of the investigators ‘pretending to be patients and their companions, and wearing hidden cameras recording video and audio.’ But, as Bagley Amon explained, ‘[d]espite these investigative activities, the [attorney general] did not call any of its investigators as witnesses, and introduced few of the undercover videos as evidence.’
In addition to the undercover investigators, Schneiderman used two of the abortion ‘escorts’—volunteers who walked abortion clients into the Choice facility—to help gather evidence. The escorts, Pearl Brady and Theresa White, wore recording devices and helped prepare a ‘protester dossier’ that collected personal information about the protestors.’
Both Brady and White conducted their own investigations as well. White recorded the license plate numbers of the protestors and conducted internet searches for them. Brady also conducted internet searches on the protestors and created a fake Facebook account, with which she pretended to be a pro-life advocate. Then, using that fake account, she “friended” some of the protestors on Facebook and gathered information about them.
Notwithstanding these concerted investigative efforts, Judge Bagley Amon found the AG’s claims of FACE failed. “Despite the availability of hundreds of hours of video evidence, the [attorney general]has not cited a single video that corroborates the witness testimony claiming near-weekly violations,” Judge Bagley Amon wrote. Rather, “the video evidence contradicts the escorts’ accounts of protestor conduct on specific occasions.”
Judge Bagley Amon further found the abortion facility witnesses unreliable and that their sworn testimony “exaggerated descriptions of protestor misconduct,” included “inconsistencies,” or involved “misremembered specific events.” She also concluded that the “Clinic Escort Recaps,” and “Protester Experience Questionnaires” the abortion workers completed were not reliable, as they included many false details.
After rejecting the myriad claims of misconduct leveled against the protestors, Judge Amon denied the New York AG’s Motion for a Preliminary Injunction, which would have barred the defendants from the sidewalks in front of the Choice facility. The New York AG appealed to the Second Circuit Court of Appeals, which heard oral arguments on September 26, 2019.
A year-and-a-half later, on March 10, 2021, a three-judge panel of the Second Circuit reversed Judge Amon’s opinion. Judge Rosemary Pooler, a Bill Clinton appointee, authored the belated opinion that spanned more than 100 pages, with fellow Clinton-appointee Guido Calabresi joining to form a majority for the court. Debra Livingston, a George W. Bush appointee, dissented.
Surprise Court Reversal
As Judge Livingston’s dissent detailed, the majority opinion in essence inappropriately ignored the lower court’s credibility determinations and extensive factual findings, and the fractured 2-1 decision primed the case for a rehearing before the full Second Circuit Court of Appeals, or an appeal to the U.S. Supreme Court.
The Thomas More Society, which represented the defendants, began with the Second Circuit, filing a motion for rehearing or rehearing en banc. It is rare that such motions are granted, and typically before a federal appellate court decides to rehear a case, it seeks an answer from the opposing party. But that didn’t happen here.
Instead, on Friday, the panel (not the full court) voted to rehear the case. In layman’s terms, that means that either Judge Pooler or Judge Calabresi (or both) had a change of heart. After the year-and-a-half it took to decide the case and after composing 100-plus pages of analysis, the court realized it made a mistake.
The panel’s about-face does not end the case, however, as the judges must still issue a decision on the merits, possibly after allowing fresh oral argument. Even then, the decision will only be the initial one, as this case came to the Second Circuit on appeal from the denial of a preliminary injunction. Unless the New York AG drops the case, the defendants face further litigation—and all because powerful leftist politicians worked with the abortion industry to target individuals because of their pro-life speech.
Government Collusion with the Abortion Industry
Not only did the year-long investigation, which included secretly taping the defendants, not turn up the claimed evidence of misconduct, it revealed the abortion facility workers were lying about the protestors. Now contrast the government’s conduct across the continent in California, where private individuals undertook the investigation authorities should have into the selling of fetal body parts. After video evidence suggested abortion providers violated the law, did the state AG launch an undercover investigation into the clinics?
No. Instead, the California Department of Justice, then under the command of Attorney General Kamala Harris, launched a raid on the journalist, David Daleiden, who exposed the horrific bartering of baby body parts. Harris’s successor, Xavier Becerra, who has also since joined the Biden administration as secretary of the Department of Health and Human Services, then filed 15 criminal charges against Daleiden and his colleague Sandra Merritt. While the court dropped several of the charges, Daleiden and Merritt await trial on the remaining counts.
The duo is also fighting attempts by the abortion industry to silence them in civil litigation. A California federal district court has already entered a permanent injunction forbidding Daleiden from republishing the videos or releasing additional footage, leaving Daleiden’s ability to expose the truth in the hands of the Ninth Circuit Court of Appeals.
The two cases, although separated by flyover America, unite in their lesson: The truth about abortion must be silenced, and powerful people will try to ensure it is. The Second Circuit has rethought that approach. But will the Ninth?