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New York’s 2-year-old clinic access law has withstood its first legal test in a ruling where a federal judge imposed $80,000 in sanctions on a family of abortion protesters. In a decision issued Monday, federal Judge David N. Hurd of the U.S. District Court for the Northern District of New York said members of the Kraeger family in Utica, N.Y., violated federal and state clinic access laws as well as New York Civil Rights Law. Hurd said the protesters in this case have walked a thin line between those activities protected under the First Amendment and those prohibited by statute, and “have crossed over that line too many times to allow such conduct to go unaddressed.” The behavior that pushed their conduct beyond the First Amendment shield included the delivery of a package apparently meant to look like a bomb. Hurd’s decision in People v. Kraeger, 01-CV-249, stemmed from an action initiated by New York Attorney General Eliot Spitzer and marked the first-ever court action under the New York Clinic Access Act. The act was finally approved by the Legislature and signed by Gov. George Pataki in 1999 after the Republican-controlled state Senate, yielding to public pressure, dropped its longstanding opposition to the bill. Hurd said that since the New York statute is almost identical to the federal Freedom of Access to Clinic Entrances Act (FACE), which has been upheld by the 2nd U.S. Circuit Court of Appeals and other courts, it satisfies constitutional concerns. Spitzer in February commenced a federal civil rights lawsuit against Victoria and Joseph Kraeger and their adult daughters, Sheri Kraeger and Vicki Jo Syverson, alleging harassment of clients and employees of abortion clinics in the Utica area. He sought statutory damages and civil sanctions for alleged violations of the federal access laws, as well as a finding that the defendants were in violation of a state clinic access, anti-sex discrimination and public nuisance laws. Judge Hurd dismissed the public nuisance claim, but held for the attorney general on every other cause of action. In an interview Monday, Spitzer said the ruling is of paramount importance. “The decision is monumental because it is the first application of the state access statute,” Spitzer said. “Not only does it affirm the constitutionality of the statute, but it also establishes a road map for future cases in terms of the type of evidence that will be persuasive and the ability of this office and others to obtain the appropriate relief.” The Kraeger family has long protested against abortion and frequently brings its protests directly to clinics. Although their attorney and their witnesses said the Kraegers merely attempt to quietly counsel women who may be about to undergo an abortion, Judge Hurd found that the conduct of family members was often intimidating. For instance, Hurd said, Mrs. Kraeger and her daughters have harassed potential clinic patients, yelled at them and tried to force them to take their literature. He said Mrs. Kraeger, who once purposely got herself arrested in an effort to talk to a pregnant inmate considering an abortion, aggressively confronted one woman and repeatedly bumped into her as the potential patient tried to escape. On another occasion, Hurd said, Mrs. Kraeger accosted a black man who worked in a Utica clinic and called him an “Uncle Tom” and a disgrace to his race. One incident that Hurd found particularly bothersome occurred on Feb. 9, 1998, less than two weeks after a fatal bombing at an abortion clinic. On that day, Mrs. Kraeger delivered to the office of Margaret Roberts, president of Planned Parenthood Mohawk Hudson, a package wrapped in duct tape and containing no return address. Roberts, fearing the package contained an explosive device, brought the box outside to where Mr. Kraeger was protesting and opened it next to him. The box contained pamphlets. “The defendants’ emphasis on the fact that there was no actual bomb in the box is unpersuasive,” Judge Hurd wrote. “A threat is a threat, whether or not it is actually carried out. It is ludicrous to believe that Mrs. Kraeger’s conduct could not be considered a threat unless the clinic was actually bombed and people were injured or killed. The package sent by Mrs. Kraeger was a threat, intended to frighten and intimidate Ms. Roberts and the staff at the Utica clinic.” In addition, family members posted wanted posters offering a $100 reward for the identification of abortionists and harassed people entering and leaving clinics, the judge found. Congress attempted to discourage such conduct when it enacted FACE (18 U.S.C. �284) in 1994. Supporters of abortion rights have said the law has been quite effective. However, they claimed that in many regions of New York there are not enough federal agents to enforce the law, and that local authorities were reluctant to make arrests under federal law. They lobbied strenuously for a state counterpart to FACE, but were repeatedly rebuffed by New York’s Republican Senate. However, citing widespread public support, state Senate Majority Leader Joseph L. Bruno, R-Brunswick, allowed the measure to come to the floor for a vote. The measure was passed and then signed by Gov. Pataki. STATE LAW Jennifer K. Brown, director of the attorney general’s Reproductive Rights Unit, said the state law is crucial since it specifically allows state actors to intervene. She said that while the attorney general can pursue a matter under either the federal or state statute, state law enforcement officials were reluctant to intrude on what they had viewed as federal province. The New York State Clinic Access Act, codified under Penal Law �240.71, established the crime of criminal interference with health care services or religious worship, a class E misdemeanor. It authorized the attorney general to seek a court order to curtail the activities of those in violation. The Kraeger case marked the first time Spitzer has invoked the law. Judge Hurd found numerous violations of FACE and the state law, and also held that Mrs. Kraeger violated state Civil Rights Law �40-c, an anti-discrimination statute, by bumping and yelling at one visitor to a clinic. The total damages, assessed only under FACE since the state law does not provide for damages, amounted to $80,000. In addition, Hurd ordered the four named defendants to refrain from any acts of harassment at any clinic in the Northern District of New York, and imposed a specific buffer zone around the Utica clinic that has been the focal point of their protests. The attorney for the defendants, John J. Broderick of Syosset, N.Y., said he expects to file an appeal and disputed the court’s findings of fact. “They weren’t harassing anybody, they were just counseling — quietly and prayerfully speaking to the girls and trying to dissuade them from having an abortion,” Broderick said. “It is counterproductive to shout at and harass people because then you can’t dissuade them. We had testimony to this affect, but there was counter-testimony. Obviously the judge didn’t go along with our side of it.” Arguing for Spitzer were Brown and Assistant Attorney General Carrie H. Cohen. JoAnn Smith, President and CEO of Family Planning Advocates of New York State, said the decision is a milestone that clearly establishes that people who violate clinic access laws in New York could face costly consequences. “This is an interesting decision because it is so very strongly written,” Smith said. “I was just impressed with the depth of the judge’s thinking. He was very explicit. This is a significant statement.”

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