Pro-Life Protesters Ordered to Stop Clinic Harassment
By Mark Hamblett, New York Law Journal, February 23, 2006
Two anti-abortion protesters must cease the physical harassment of women and their escorts at a family planning clinic at Mott and Bleecker streets, a federal judge has ruled.
Southern District Judge Denise Cote granted a preliminary injunction sought by Attorney General Eliot Spitzer that will govern the activities of the two men outside the Margaret Sanger Center at 26 Bleecker Street. [Read the text of the injunction in PDF format.]
The judge found that protesters John Cain and Luis Menchaca on more than one occasion violated the federal Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. §248, as well as its counterpart in New York state law and common law of nuisance.
"The plaintiffs have shown a likelihood of proving at trial that the defendants have committed acts of force, uttered true threats, and physically obstructed access to the Center, all with the intent to intimidate or interfere with persons who were obtaining or providing reproductive health services and are likely to continue to do so in the absence of an injunction," Judge Cote said in People of the State of New York v. Cain, 05 Civ. 9132.
The injunction that Judge Cote agreed to issue following a hearing that ended Feb. 3 establishes a buffer zone that separates Mr. Cain and Mr. Menchaca from women and their escorts using the clinic. It designates a "demonstration corridor," about 22 feet in length directly opposite the entrance to the center in which the defendants could continue to offer their "abortion counseling" — a "buffer zone" that the judge said "does not restrict more speech than necessary."
Judge Cote's 67-page opinion focused on the area just outside the clinic and the walking route from the Bleecker Street subway stop to the entrance some 200 feet away, an area she said was "filled with verbal abuse, confrontation, physical threats, and at times, physical assaults."
"The parties differ on who is responsible for the aggressive behavior, but they describe a scene filled with tension, brimming with anger, and infused with the expectation of imminent danger," Judge Cote said.
While the situation has been ongoing, it became "particularly volatile" last year, leading the attorney general to sue on behalf of the citizens who use or work at the clinic.
Mr. Cain, 69, is a retired New York City public school teacher who has been demonstrating against abortion since 1970. Mr. Menchaca, 63, has been active in the pro-life movement since 1986 and has adopted the nickname "Lifeboat." He was convicted in 2002 in state court for obstructing access to a Buffalo reproductive health care facility and is the subject of two permanent injunctions under FACE for his actions at clinics in Englewood, N.J., and Dobbs Ferry, N.Y.
Mr. Cain claims that between 10 percent and 25 percent of women he confronts with signs at the corner of Bleecker and Mott Streets decide not to go through with an abortion, although Judge Cote said, "there was no independent evidence" to support that claim.
"Most women, it seems, are less than thankful for the defendants' intervention in their lives," she said. "Because of defendants' actions, patients often enter the Center teary and upset. Others are confused, disoriented, intimidated or angry."
The two men get within inches of women as they approach the clinic, shoving literature in their faces and following them right up to the doorway of the clinic.
Once the door to the clinic is opened, she said, "Cain often screams 'Stop the murder in there,' or 'Murderers; they're killing babies.'"
Judge Cote first rejected a challenge to the attorney general's standing to bring suit made by the defendants.
The judge then detailed events that established violations of FACE.
On April 9, 2005, Mr. Menchaca pushed against, and then pushed an escort when the escort told him to move away.
"The full-body press plainly restricted the escort's freedom of movement, and the push placed the escort in reasonable apprehension of bodily harm," she said. The same was true on Nov. 6, 2004, when Mr. Cain pushed into an escort while she was opening the door for a patient, the judge said.
But other uses of force alleged against the two men "lack clear evidence of the intent required by FACE," Judge Cote said, including several incidents where the men bumped into patients or escorts while following them to the clinic entrance.
While such contact "may be inappropriate," she said, "it is not illegal under FACE if it is not motivated by an intent to restrict freedom of movement or place another in reasonable apprehension of bodily harm."
Several statements made by the two men also qualified as threats under the statute, the judge found, including promises of physical harm to escorts.
Statements that do not meet that standard, she said, include Mr. Cain telling escorts "I'd like to stick a coat hanger in you" and "Go to hell."
"These statements certainly contributed to the emotionally trying and unstable atmosphere at the Center, but they do not constitute true threats as defined by the Second Circuit," Judge Cote said.
Finally, the judge found that some of the defendants' actions met the standard for physically obstructing clinic access under FACE.
Lisa Landau of the Attorney General's Reproductive Rights Unit and Assistant Attorney Anne Pearson represented the state.
Christopher A. Ferrara of the American Catholic Lawyers Association represented the defendants.