On Wednesday, oral arguments in an important anti-abortion harassment case called McBrayer v. Governors Ridge Office Park Association began in the Georgia Court of Appeals just as impeachment proceedings opened on the hill.
The timing is a chilling coincidence: At issue in McBrayer is whether or not an abortion provider, or by extension any person or organization, could be held financially liable for the threat posed by activists and outside agitators harassing them.
Dr. Daniel McBrayer is the former owner of a now-closed Georgia-based abortion care facility Alpha OB/GYN in Marietta, Georgia. Like many healthcare facilities that provide abortion care, Alpha OB/GYN has been targeted by anti-abortion extremists for years. Not only did the extremists regularly protest the clinic, in 2012, anti-abortion terrorists committed arson by lighting the building on fire.
This time, however, McBrayer is the victim not just of anti-abortion extremists but also of a legal decision that enables them. This case arose after the clinic’s business neighbors sued McBrayer for creating a nuisance because he was targeted by anti-abortion protesters. A Georgia jury agreed and imposed a $1.5 million verdict against the doctor.
Law professor David S. Cohen and Women’s Law Project attorneys filed an amicus curiae brief on behalf of Georgia abortion clinics, American College of Obstetricians and Gynecologists, National Abortion Federation, Abortion Care Network, and Society of Family Planning in support of McBrayer.
Our brief outlines both the unconstitutionality and the imminent danger of the “heckler’s veto” established by the lower court ruling and urges the Georgia Court of Appeals to overturn the erroneous decision.
The “Heckler’s Veto” is Dangerous Precedent That Encourages Violence
If the lower court ruling is allowed to stand, it will embolden and incentivize anti-abortion activists to target healthcare facilities that provide abortion care and/or contraception with harassment in an attempt to force them to be held liable for multi-million dollar jury verdicts.
The broader danger is that, if affirmed, this verdict would also harm any businesses or organizations that also face protests. Following the lawsuit’s reasoning, Black churches, synagogues, mosques, bookstores, gun stores, and political party offices, for example, may face economic ruin and be forced to shut down because they are targeted by protesters or criminals. Opponents could picket or attack those entities until neighbors file a nuisance lawsuit, forcing the opponents’ targets to either pay massive damages or close, fulfilling the opponents’ goal.
“Beyond the clear unconstitutionality of the lower court ruling, it’s not hard to see the absolute danger in allowing this ruling to stand,” says attorney and law professor David S. Cohen, who studies anti-abortion terrorism and is the co-author of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism. “People outside the reproductive health world are typically unaware that anti-abortion terrorism and harassment is so common and widespread in the United States. But in the current political climate, it’s easy to see the danger of encouraging violent, self-righteous activists to become such a nuisance to the community that others sue the clinic and then shut it down.”
According to the Feminist Majority Foundation’s most recent survey, 88% of clinics experience on-site anti-abortion protest activity, with the most aggressive and frequent protest taking place in the South.
Anti-Abortion Terrorism as Bellwether for More Violence in the United States
Everyone should be alarmed by this case, no matter your personal opinion on abortion.
Under the logic of the jury verdict in this case, the members of Congress and staff forced to hide from the mob during the violent insurrection at the U.S. Capitol last week should and could be held responsible for the actions of the people who tried to attack them.
“Frankly, no one in reproductive healthcare is surprised by the dynamic of last week’s seditious riot because we’ve been observing similar radicalization techniques in the anti-abortion movement for a long time,” says WLP attorney Christine Castro.
“Like the dozens of baseless challenges to the presidential election results, anti-abortion extremists manufacture and repeat propaganda to incite the rage of their followers, who are then sometimes driven to criminal activity in the name of a false narrative. People sometimes get killed as a result, and the propagandists are rarely held responsible. To hold the people who have been targeted liable is a cruel twist.”
The ruling is expected later this year.
For more information or to request an interview with an attorney working on the case, contact Tara Murtha at tmurtha@womenslawproject.org.
The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond.
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