Analysis of <em>People of the State of New York, Buffalo GYN Womenservices, Planned Parenthood of Rochester/Syracuse Region, et. al. v. Operation Rescue National, et. al.</em>
Finley, Lucinda
Abstract
Buffalo Women's Law Journal Buffalo Women's Law Journal 9-1-1998 Article 14 Analysis of People of the State of New York, Buffalo GYN Analysis of Womenservices, Planned Parenthood of Rochester/Syracuse Region, et. al. v. Operation Rescue National, et. al.
Lucinda Finley University at Buffalo School of Law, [email protected] ANALYSIS OF PEOPLE OF THE STATE OF NEW YORK, BUFFALO GYN WOMENSER VICES, PLANNED PARENTHOOD OF ROCHESTER/SYRACUSE REGION, ET. AL V. OPERATION RESCUE NATIONAL, ET. AL. PROFESSOR LUCINDA FINLEY Since 1992, abortion providers in the Buffalo and Rochester area have been protected by a federal injunction restricting protesters from blocking and obstructing access to clinics. This injunction, which was obtained and then successfully defended over First Amendment challenges in the U.S. Supreme Court by UB Law Professor Lucinda Finley, established protest-free "buffer zones" of fifteen feet around driveway and doorway entrances to clinics, but allowed two protesters to enter the buffer zone to attempt to offer "sidewalk counseling."
Over the years, this 1992 injunction proved increasingly inadequate to protect patients and staff at clinics from being harassed and interfered with as they attempted to enter or leave. First, Operation Rescue staged a two-week long series of blockades in the Spring of 1992, in open defiance of the injunction. Then, new protesters who were not bound by the original order gradually appeared to replace those who were active in the early 1990's. And, some of the most targeted clinics moved, and the fifteen foot zones were woefully inadequate to preserve access and safe health care at the new locations.
The newly emboldened protesters started routinely obstructing driveways and sidewalks and endangering traffic safety, harassing people seeking access as well as pedestrians merely attempting to pass the clinics, and screaming so loudly at those attempting to enter that the noise levels disrupted health care activities inside.
Two significant events happened in the fall of 1998 that greatly. escalated the threat and intimidation of these increasingly vociferous and obstructive protests. On October 23, 1998, Dr. Barnett Slepian, an esteemed and caring obstetrician-gynecologist who provided abortions at the Buffalo GYN Womenservices clinic, was assassinated in his home by an anti-abortion sniper. One week later, standing outside Dr. Slepian's medical office, local Buffalo leaders of the clinic protest activities announced that in the spring of 1999 they would hold a "reunion" of the 1992 spring blockades. The area abortion providers and pro-choice community reacted to this announcement as a calculated effort to intimidate them into discontinuing services at a time when they were still reeling with grief, shock, and fear.
In January 1999 the stakes were raised further, when Flip Benham, the Executive Director of Operation Rescue National (ORN), a group that has organized clinic blockades all around the U.S., came to Buffalo for a press conference where he announced that ORN was joining the local leaders in sponsoring the 1999 spring protests. This event was dubbed "Operation Save America," and ORN and local leaders distributed alarming literature that proclaimed they would "take the battle to the streets," and "storm the gates of hell" (abortion clinics).
In response to this announced targeting of reproductive health facilities in Buffalo and Rochester, the area clinics and physicians, represented by Lucinda Finley, joined by Eliot Spitzer, the Attorney General of New York and his newly established Reproductive Rights Unit, filed a lawsuit in federal court under the Freedom of Access to Clinic Entrances Act (FACE).' This suit, filed on March 22, 1999, was brought against five organizations and sixty-three individuals who were either leaders of the organizations or active disruptive protesters at area clinics. The case sought injunctive relief to establish buffer zones to protect fourteen health care facilities in three counties, all of which were potential targets of "Operation Save America." With the number of defendants, the number of facilities sought to be protected, and the scope of requested injunctive relief, this case is the largest civil suit yet filed under FACE, a federal statute enacted in 1994 to provide civil remedies and criminal penalties for obstructing access to or damaging clinics or threatening those who seek or provide reproductive health services.
F.A.C.E. ANALYSIS With "Operation Save America" scheduled to commence on April 18, 1999, the district court held a three-day hearing and issued a Temporary Restraining Order (TRO) on April 15, 1999. This TRO prohibited defendants from blocking, impeding, trespassing on, or vandalizing any reproductive health facility. The TRO also established varying buffer zones around the reproductive health facilities in Western New York. These zones varied to account for the nature of and traffic and public safety dangers posed by the protest activity that had been ongoing at each site, as well as for the traffic and public safety needs of the various physical layouts. At the Buffalo GYN Womenservices Clinic the buffer zone extended sixty feet from either side of the building, because of documented problems with obstructing the driveways to adjoining businesses; with pedestrians, including school children, being obstructed and harassed; and with noise that was so loud it intruded upon health care inside the clinic. At the Rochester Planned Parenthood facility, the buffer zone extended twenty-five feet from one edge of the building because of the need to keep noisy protesters away from clinical office windows, and fifty feet from the facility's driveway in order to allow cars to exit safely onto the busy street and to keep the driveway to an adjoining business clear. At all facilities, the buffer zones are "pure" - no demonstrators claiming to be "sidewalk counselors" may enter the buffer zones. The court excluded so-called sidewalk counselors from the buffer zones because of extensive record evidence that protesters had used the claim of being sidewalk counselors as an excuse to obstruct driveways, interfere with traffic trying to enter or leave facilities, and scream into doorways or parking lots.
The effect of the TRO on "Operation Save America" was dramatic: law enforcement set up barriers co-extensive with the buffer zones and maintained clear and safe access to the clinics throughout the week of Operation Rescue demonstrations; for the first time in any Operation Rescue organized mass event, there were no blockades or even attempted blockades of clinics, and there was only one arrest of someone who was not even affiliated with the protests. Thanks to the TRO and the coordinated efforts of many levels of law enforcement, the 'week was peaceful, with Operation Rescue participants visibly and freely expressing their views across the street from clinics while staff and patients at the clinics had unfettered and unharassed access for the first time in years.
The director of one of the targeted clinics expressed that thanks to the TRO, she and her staff now enjoy a normal experience when they go to work, in sharp contrast to the past years of being stopped in the driveway by protesters who harass them and scream out epithets and accusations of "murderer." Staff at the health care facilities have also reported that numerous patients have spontaneously remarked how much easier and less stressful it is now, and staff have noted that patients are now much less agitated, angry or stressed when they come for their health care.
The TRO has been extended to remain in effect until the conclusion of the hearing on Plaintiffs' request for a preliminary injunction. The hearing, currently scheduled to start at the end of May, 1999, will determine whether the court will continue the TRO and its safety-enhancing buffer zones. A decision on the preliminary injunction may be issued by late summer or early autumn, 1999. In the meantime, reproductive health facilities in Western New York continue to enjoy the new regime of peace and safety. --- FOOTNOTES --- Part of the Civil Rights and Discrimination Commons, Health Law and Policy Commons, Labor and Employment Law Commons, Law and Gender Commons, and the Torts Commons BUFFALO WoMEN's LAW JOURNAL ' 18 U.S.C. §248.