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Court punches hole in Planned Parenthood buffer zone

Woman kneeling and praying in front of a police car near Planned Parenthood on University Avenue.
Max Schulte
A woman who declined to give her name kneels in prayer outside of the Planned Parenthood clinic on University Avenue. The woman said she thankful for the Supreme Court decision that overturned Roe v. Wade.

The court-ordered buffer zone around Planned Parenthood’s clinic on University Avenue could be weakened after a federal appeals court ruled in favor of a Rochester anti-abortion sidewalk ministry.

The decision does not eliminate the buffer zone, which was established in 2005 through a federal court injunction. Rather, the court ruled that Jim Havens and ROC Love Will End Abortion were not named in the injunction – and for that reason, they are not subject to it.

“We hold that a person who is not a named party to an injunction or legally identified with a named party is bound by the injunction only from acting for the benefit of, or to assist, an enjoined party in violating the injunction,” read the decision from a panel of three judges in the U.S. Court of Appeals for the 2nd Circuit.

Protesters are still subject to state and federal laws that require them to stay off clinic property and prohibit them from blocking access to the facilities and from harassing or threatening patients entering them.

City of Rochester spokesperson Barbara Pierce said officials are disturbed by the ruling.

“We are reviewing the decision and evaluating options for appeal,” Pierce said in a written statement. “In the meantime, we will work to help ensure the safety of patients, protect First Amendment rights for all, and discourage violence and aggression during any protest.”

Among those named in the 2005 injunction were Focus Pregnancy Help Center founder and director Mary Jost, Michael McBride, Robert Pokalsky, and Rescue Rochester, along with its founder Michael Warren. It was the result of a 1999 federal case brought by the state Attorney General’s Office and abortion providers. The court found that abortion opponents had violated federal clinic access laws by threatening violence and effectively obstructing clinics.

Havens began praying and doing sidewalk counseling outside of the Planned Parenthood clinic in 2017, and others soon joined him. Eventually, the city and the state Attorney General’s Office sent a joint letter to Havens telling him that he and the other members of his group could not enter the court-established buffer zone, according to the decision.

In 2019, Havens filed a federal lawsuit against the city of Rochester and the Attorney General’s Office, seeking a ruling declaring that he and his group were allowed in the buffer area. The court dismissed his case, arguing that he had been working with Jost in violation of the injunction, and he appealed.

The appeals court ruled in his favor and has sent the case back to the lower court for further proceedings.

In his dissent, Circuit Judge Raymond Lohier Jr. said the lower court ruled correctly in dismissing the case because there was evidence that Havens and Jost had been working together. In doing so, they both violated the injunction, he added.

He also warned that the majority decision risks undermining the authority of federal district courts to enforce their decrees.

“It is unclear to me how district courts will be able to meaningfully enforce their decrees against clever and devoted parties with clever and devoted friends,” Lohier wrote.

Lohier was appointed to the court by former President Barack Obama. The other two circuit judges, Steven Menashi and William Nardini, were appointed by former President Donald Trump.

Jeremy Moule is a deputy editor with WXXI News. He also covers Monroe County.