Fla. Pro-Life Advocate Wins Battle to Counsel Outside Abortion Clinic

A federal judge in West Palm Beach, Fla., recently ended the U.S. attorney general’s “two-year political prosecution” of a pro-life educator who accused of allegedly violating the Freedom of Access to Clinic Entrances Act.

“This is a tremendous victory not just for Susan but for the First Amendment and the pro-life movement,” Harry Mihet, senior litigation counsel for Liberty Counsel, commented. “Attorney General Holder sought to use federal law as a billy club against pro-lifers, but received instead a clobbering from the very Constitution he had sworn to protect. Freedom-loving Americans everywhere should rejoice.”

According to the Liberty Counsel, Attorney General Eric Holder vigorously sought to fine Mary Susan Pine, founder of a nonprofit pro-life organization called F.A.C.E. (Faith, Action, Counseling and Education), thousands of dollars as well as ban her from counseling women on the public sidewalk outside of the Presidential Women’s Center abortion clinic for purportedly obstructing the entrance to an abortion clinic in November of 2009.

The Liberty Counsel, however, was successful in defending Pine, who had been ministering outside the clinic for more than 10 years, speaking peacefully to women considering abortion about available alternatives and assistance programs.

Judge Kenneth L. Ryskamp stated in his summary judgment Friday that “the evidence could not lead a rational jury to find that Ms. Pine’s conduct [i.e., having peaceful conversations with clinic visitors on a public sidewalk] constituted a physical obstruction within the meaning of FACE (Freedom of Access to Clinic Entrances Act).”

Ryskamp concluded that the government lacked evidence to prove that all three elements of the FACE claim were violated, criticizing Holder for seeking to apply federal law in an unconstitutional manner.

A FACE claim required plaintiffs to prove that the defendant: intentionally injured a person seeking reproductive health services; threatened them or physically obstructed them; and intimated those seeking the services; all of which Holder could not prove.

The court could not understand why the government chose to prosecute Pine’s case in the first place.

“The Court can only wonder whether this action was the product of a concerted effort between the Government and the PWC, which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.”

The act in question occurred on November 19, 2009, when the defendant approached a car at the exit driveway of PWC, handing them pamphlets and speaking to them about alternatives and resources available to pregnant women. It was not determined whether or not the passengers were seeking reproductive health services.

West Palm Beach Police Officer Sanjay Raja, who was on patrol that day, accused Pine of violating city and state traffic laws, stating that she was purportedly blocking the flow of traffic because of her sidewalk counseling session.

But Raja did not issue any citations to Pine or the driver of the car who had stopped to listen. He instead wrote an incident/investigation report and informed the PWC President of the situation. The officer also did not obtain the identities of the passengers or note the vehicle’s license plate number in his report. Additionally, the PWC, which has a video surveillance system covering the exit driveway where the incident occurred, destroyed all evidence pursuant to their privacy policy after the exchange.

The government acknowledged that they did not at any time, during or after the meeting, request the PWC to produce any documents or preserve evidence, leaving Raja as the only witness to the incident. The day after the incident, representatives from the Department of Justice met with the PWC staff, Raja, and another police officer to discuss the incident and determine whether Pine was in violation of FACE, which they believed she was.

Pine argued that the government had not met its burden of proving: that she physically obstructed or interfered with the passengers in the sedan; and that the passengers were seeking reproductive health services at the PWC. She also revealed that the government violated its duty to preserve the evidence related to the case and that if she were to be fined or banned, it would violate her First Amendment rights.

Pine claimed that her exchange with the passengers of the car was consensual and that she did not in any way use physical threats or obscenities while conducting the counseling.

Siding with Pine, Judge Ryskamp noted that Pine’s peaceful demonstration was “excepted” from the reach of the FACE Act. “Stretching the terms of FACE to apply to this case so that delaying a vehicle for a matter of seconds constitutes an unlawful physical obstruction or so that a desire to provide people with information about alternatives to abortion constitutes an unlawful motive would unjustifiably impinge on Ms. Pine’s First Amendment rights,” he said.

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