Tuesday November 4th 2014
of yesterday, the U.S. Supreme Court has denied the Petition for Writ of Certiorari in Jo Scott's case. I am not much disappointed, although I had
hoped they would hear the case. They
deny most Petitions just because the
Supreme Court can't handle all those
cases. And they don't even give you a
reason or tell you who voted to hear it and who didn't.
you have to call upon the legal system to Do
Right even when you have no confidence that it will. Since the Court has made abortion legal it is
not all that surprising that they aren't keen to protect the first amendment
rights of anti abortion activists. They
did rule against the Massachusetts buffer law last year in the McCullen
case. Which encourages the Sidewalk
putting this Petition on the web site
because it preserves a lot of information about the special law that was aimed
at us. This is an early pro se version of the Petition mainly written by
me--Terry Sullivan--and Tony Massey. We
did eventually get lawyers involved. Tom
Brejcha and the Thomas More Society paid for the booklet and the filing fee and
Rebecca Messall wrote the Petition
which was denied. There was also an amicus brief filed by Mike Norton on
behalf of 40 Days for Life.
have won a few legal victories through the years. But mainly we rely upon Bearing Witness to the Truth by Nonviolent Direct Action--the
power which is born of truth and love.
We have saved a lot of babies since we established a 5 day a week pro
life picket and sidewalk counselling effort in front of Rocky Mountain Planned
Parenthood in August 1989. And we are
still out there.
In The Supreme Court of the United States
Jo Ann Scott Pro Se
State of Colorado
Petition for Writ
Whether C.R.S. 18-9-122 (2) is unconstitutional as applied to Jo Ann Scott, and
facially unconstitutional because of the vagueness
which resulted when the legislature added detain,
hinder, and impede to block and obstruct.
Whether C.R.S. 18-9-122 (2) is unconstitutionally vague because block and obstruct are no longer defined
by location--sitting down in front of the door or kneeling in the driveway
and refusing to move--but instead have morphed into a prohibition against a
Sidewalk Counselor walking along with an abortion customer and trying to talk
or to leaflet, as illustrated by this case.
Whether the whole of C.R.S. 18-9-122, Sections 1-6 is Unconstitutional because of the history of the law which was pushed through the legislature by
Planned Parenthood and NARAL--by the abortion industry generally--to target sidewalk counselors and inhibit leafleting and free speech on the public sidewalk.
The dissents by Justices
Scalia, Kennedy and Thomas in the Hill
decision argue this better than we can.
The Hill decision validated a
bad law and we ask the Supreme Court to re-consider this decision.
TABLE OF CONTENTS
TABLE OF APPENDICES
Appendix A January 28, 2013 Order
of the Denver District Court 1a
Appendix B December
09, 2013 Order of Colorado Supreme Court denying Certiorari #####
Appendix C January 14, 2014 Order of Colorado Supreme
Court denying a Rehearing #####
D Text of the alternatives leaflet handed out on the sidewalk in front of the
Rocky Mountain Planned Parenthood Abortion Clinic in Denver #####
18-9-107 Obstructing highway or other
Ordinance 38-86 re: blocking a building entrance and refusing to move
TABLE OF AUTHORITIES
Carlson v. California,
310 U.S. 106, 113 (1940) nn
Chicago v. Morales, 527
U.S. 41, 56 (1999) nn
Hill v. Colorado, 530
U.S. 703, 773 (2000) ( Kennedy dissent ) nn
Hill v. Colorado, 530
U.S. 703, 773 (2000) ( Scalia & Thomas dissent ) nn
Kolender v. Lawson, 461
U.S. 352, 357 (1983) nn
Lovell v. City of
Griffin, 303 U.S. 444. 452 (1938) nn
McIntyre v. Ohio
Elections Commission, 514 U.S. 334, 347 (1995)nn
Meyer v. Grant, 486
U.S. 414, 424 (1988) nn
Schneider v. State
(Town of Irvington), 308 U.S. 147, 163 (1939) nn
Smith v. Charnes, 728
P.2d 1287, 1290 (Colo. 1986). nn
United States v. Grace,
461 U.S. 171, 176_177 (1983) nn
Brest, Paul, Palmer v.
Thompson: An Approach to the Problem of
Unconstitutional Legislative Motive, 1971 Sup. Ct. Rev. 95, 95. nn
Chen, Alan K., Statutory Speech Bubbles, First Amendment
Overbreadth, and Improper Legislative Purpose, 38 Harv. C.R.-C.L. L. Rev 31
Lugosi, Charles The Law
of the sacred cow: Sacrificing the First Amendment to Defend
Abortion on Demand University of Denver College of Law Review
Jo Ann Scott v. People of the State of Colorado, Denver District Court, 11CV4757,
Decision rendered January 28, 2013 (App. #######) affirmed in part and reversed
in part the conviction of the trial court.
The Colorado Supreme
Court denied Certiorari on December 9, 2013,
and denied rehearing on January 14,
United States Supreme Court has jurisdiction under 28 U.S.C § 1257 to hear this case.
STATUTORY PROVISIONS INVOLVED
The First, Fifth, and
Fourteenth Amendments United States Constitution,
Article II, Section 10
of The Colorado Constitution,
C.R.S. 18-9-122 (2) and
Statement Of The Case
Jo Ann Scott is an experienced sidewalk
counselor who has saved many babies from death by abortion by getting out
on the sidewalk in front of Rocky Mountain Planned Parenthood in Denver five
days a week since 1997. Not
surprisingly, she has become the number one target of Planned Parenthood and
NARAL and their allies in the police and judicial establishment of the City of
Denver. The police here aggressively serve and specially protect Planned
Parenthood by taking their counterfeit complaints at face value.
Scott is well aware of what she can and cannot do under the law--has learned it
the hard way. She learned long ago to
avoid physical contact with hostile abortion customers. But she also knows that the more upset a
woman is on her way into an abortion clinic, the more likely she is to change
her mind. That is why the effort has to
be made to talk to customers even when the initial reaction is not
friendly. After they get through cussing
us out, they realize that they don't really want to put their kid in the
trash. We have seen it happen more than
surprisingly, some of these customers call the police and make bogus
complaints. The pro Planned Parenthood
bias imposed upon the Police Department in the City of Denver almost guarantees
that these complaints will be pursued however lacking in merit. Section 2 of CRS 18-9-122 specially lends
itself to this policy because of its vagueness.
Scott is the only person ever convicted of violating both section (2) and
section (3) of C.R.S. 18-9-122, the so-called buffer law, which was
designed by Planned Parenthood and NARAL to target anti abortion sidewalk
counselors and pushed through the Colorado legislature in 1993. As the Legislative
History will show.
Parenthood moved to this new fortress like compound in 2008. It has a high fence all around it and it was
designed to minimize the chances of Sidewalk Counseling--talking quietly to
incoming abortion customers. Over the
past 25 years they have tried one remedy after another to insulate their
customers from sidewalk counselors. Most
of their abortion bound customers drive in to the parking lot and would be
counselors can only communicate with them by raised voices at a distance. We are often a loud picket line because PP
has shut down the alternative. However,
customers still come in on foot for one reason or another--perhaps because they
took a bus.
the morning of April 2nd 2010, Ms. Scott was on the sidewalk outside the fence which encloses the Rocky Mountain
Planned Parenthood abortion clinic at 38th and Pontiac in Denver Colorado. When Laura Brown walked past Ms. Scott on her
way into Planned Parenthood, Ms. Scott started walking along with her while
offering an Alternatives leaflet and
talking to her about abortion.
Brown had parked on 38th Avenue and not in the clinic parking lot. That was the reason that she had to walk past
the protesters and on down the block to the driveway in the middle of the block
on Pontiac Street. She later stated that
she was not aware of the enclosed parking lot, although she had been to the
clinic several times before and / or that she did not realize she was allowed
to park there.
Scott and Ms. Brown walked side by side at a brisk pace for a short distance,
until Ms. Brown walked through the driveway and onto the Planned Parenthood
parking lot. The entire encounter was
recorded on an overhead surveillance camera and lasted 26 seconds.
she got inside, Ms. Brown called the police with the encouragement of Planned
first said that she was grabbed by
Jo Scott--a two handed grab--and also called nasty names. She also said she was assaulted and attacked. A Planned Parenthood executive--who just
happened to be driving by when the two women were walking together--said she
had seen the two handed grab. She later
testified for the prosecution at the trial.
police Sergeant William Stanley, who responded to the call and who looked at
the surveillance video the same day, did not see any grab and did not write a ticket.
A detective who reviewed it later also concluded that there was not probable cause to justify a
citation. But, six weeks later, on May
14th 2010, a citation was issued by a downtown detective--a typical procedure
in Planned Parenthood cases.
Ms. Scott was charged
with three counts of harassment under
CRS 18-9-111 subsections (a), (c), and (h),
And one count of Preventing Passage to a Health Care Facility
under C.R.S. 18-9-122 (2).
the trial Denver
County Court Case 10M06438
the trial, Complaining Witness Laura Brown backed away from the grab allegation and changed her
testimony to an alleged touch. Which does not show up on the surveillance
video or in the enlarged photographs made from the video.
also backed away from her original complaint that Jo had called her nasty
names. She testified instead that Ms.
Scott had said you don't have to do this . . .
don't go in there . . . don't
participate in a murder . . . they
kill babies. She said that Ms.
Scott was calm and seemed concerned about where she--Ms. Brown--was going.
jury acquitted Ms. Scott of the charge of harassment
by physical contact after looking at the surveillance video a second time
during their deliberations. They
convicted her of harassment by following
about in a public place and harassment
by offensively coarse language. They
also convicted her of something under CRS 18-9-122 (2) which says: obstructs,
detains, hinders, impedes, or blocks another person's entry to or exit from a
health care facility.
on these convictions, Judge Claudia Jordan sentenced Ms. Scott to 270 days in
jail (180 suspended), two years unsupervised probation, 100 hours community
service, and $ 1,700 in fines.
sentences for minor and doubtful offenses are part of a long established policy
of Planned Parenthood friendly law enforcement in the City of Denver.
Scott then appealed to the District Court.
The harassment convictions were reversed by
Judge Norman Haglund on appeal to the District Court. But Judge Haglund affirmed the conviction
under CRS 18-9-122 (2) and ruled that the law is Constitutional--that it is not un Constitutional because of vagueness.
Scott appealed the District Court ruling to the Colorado Supreme Court. Which refused to grant a Petition for Certiori on December 09, 2013. (Case 2013SC155) On January 14, 2014, in response to a Notice
of Appeal to the U.S. Supreme Court, the Colorado Supreme Court issued an
order stating: To the extent the newly filed notice of appeal is a petition for
rehearing, it is denied.
is the basis of this appeal to the U.S. Supreme Court.
February 2014, Ms. Scott was re-sentenced in Denver County Court on the basis
of the single conviction under 18-9-122 (2). The sentence is 180 days in jail,
with 150 suspended. The 30 days became
30 days home detention with an ankle monitor.
Also, she was given a year of
supervised probation, and various costs, such as those involved for the ankle
Was There a touch
? Does it matter ?
trial, Complainant Laura Brown modified her original statement that Jo Scott
had grabbed her and said that Jo had touched her on the arm. On cross examination, she halfway conceded
that Ms. Scott had not restrained
surveillance video does not show any touch, response to touch, change of pace
or deviation of course by the complainant.
Denver Police Sergeant testified at the trial that he reviewed the video at
Planned Parenthood the day of the complaint and that he could not see any
jury viewed the video and acquitted Ms. Scott of the Harassment count involving
physical contact. The District Attorney
told the jury I admit the touch is slight. In his reply brief, the District Attorney later
conceded: The evidence as adduced at trial, however, differed substantially as to
the nature of the physical contact.
Judge Haglund's Decision
District Court Case 11 CV4757
page 17 of his January 28th 2013 Order,
affirming Ms. Scott's conviction under CRS 18-9-122 (2), District Court Judge
Norman Haglund says that evidence was presented that Applicant
actually touched Ms. Brown. But he
concedes that no touch is apparent: The video was taken from such an angle that
it is unclear when or how contact occurred.
if it did. It is also unclear how such evidence meets the
standard of beyond a reasonable doubt. Or how it can equal the willful obstruction which is invoked in Section 1 of CRS
18-9-122--the preamble to this law. Under
the unclear standard of Section 2, an
inadvertent and invisible touch--assuming
there was one--is the same as block
and obstruct, which are supposed to
be limited by willful.
Haglund did not stick with the ruling which he invokes on page 4 of his
decision: The lack of sufficient competent evidence to support a finding of a
material fact, however, is a matter of law and falls within the court's powers
on review. Gallegos 533 P.2d at 248.
there was a touch, it was not a restraint, as the complainant halfway
conceded under cross examination at the trial.
The video shows the complainant continuously walking at a fast clip,
without breaking stride or hesitating, until she walks through the driveway.
it was not logical for the jury to acquit Ms. Scott of harassment by physical contact and then find her guilty of obstructs,
detains, hinders, impedes, or blocks,
IF, as Judge Haglund argues
on page 9 of his decision this law
plainly means obstruct, which plainly means: stepping
in front of . . . physically grabbing or holding a person back, erecting
barriers to prevent an individual from entering a facility--some
substantial and deliberate physical action.
the absence of any instruction to the contrary, it was logical for the jury to assume that the allegations of the
complainant were good enough for a conviction under a law which was intended to keep Sidewalk Counselors
away from abortion customers. As Judge
Haglund states on page 9 of his Order:
The situation in which Appellant
acted is exactly the type of situation to which the legislature intended CRS
18-9-122 (2) to apply. The history of this law, given later in
this Petition, shows what that
years ago Ms. Scott was arrested and convicted under section 3 of this law,
after Planned Parenthood employees, pretending to be abortion customers, made a
complaint against her for approaching within 8 feet. This happened at the old Planned Parenthood
abortion clinic at 20th and Vine within 100 feet of the door.
38th and Pontiac, the location of the new Planned Parenthood, the sidewalk is
more than 100 feet from the door. So the
8 foot bubble law--Section
3--supposedly does not apply. But in
this case they successfully used Section 2 in place of Section 3 to get a
Sidewalk Counselor arrested just for getting close to an apparent abortion
customer and trying to talk to her.
Haglund's ruling is not logical either.
On page 9 he says that CRS 18-9-122 (2) is constitutional because it prohibits obstruct or block, which
means stepping in front of . . . physically grabbing or holding a person
back, erecting barriers to prevent an individual from entering a facility.
Judge neglects to notice that Jo Scott was not convicted of doing any of these
things and that it was only the vagueness of detain . . . hinder . . . impede in this statute which justified the conviction
for an invisible touch which was inadvertent if it happened at
touching easily replaced the willful
obstructing stipulated in the preamble of this law.
is this vagueness which makes this
as stated above--
Review Is Warranted To Determine If C.R.S. 18-9-122 [ 2 ] Is Unconstitutional
As Applied To Ms. Scott And / Or whether
and Impede are such vague
terms that they lend themselves To Arbitrary Enforcement.
How else would you
describe this ?
related constitutional question is:
Whether C.R.S. 18-9-122 (2) is unconstitutionally vague because block and obstruct are no longer defined by location--sitting down in front
of the door or kneeling in the driveway and refusing to move--but
instead have morphed into a prohibition against Sidewalk Counselors approaching
abortion customers to talk or leaflet, as illustrated by this case.
18-9-122 (2) passed in 1993 was superfluous.
Health care facilities were
already protected from people obstructing
the entrance, along with pawn shops and court houses etc. and had no need of
this very special legislation conspicuously supported by Planned Parenthood and
NARAL. It was aimed at Sidewalk
Counselors staying within what they supposed to be their First Amendment rights
to rescue babies from abortion.
old loitering law has become Denver
Municipal Ordinance 38-86. If you Obstruct a building entrance and disobey
an order to move from a person with
authority you can be arrested under this law. Which, unlike CRS 18-9-122 (2), does not have detain, hinder, impede of another person without regard to where
you are in relation to the entrance.
Section (1) of this new law is narrowly
tailored to target those who protest
or counselagainst certain medical procedures in front of health care facilities.
if this new law had been passed in good faith--it wasn't--it was entirely
redundant and unnecessary. Except
insofar as it was needed to help Planned Parenthood target Sidewalk Counselors. That is the obvious purpose.
Counselors arrested for trying to talk to abortion customers are assured that
they have plenty of protest alternatives. They can write a letter to the editor, call
in on the talk show or display a sign half a mile from the abortion
clinic. The question should be raised as
to whether the pro abortion forces did not have an abundance of alternative legal weapons before CRS
18-9-122 (2) was passed--whether it ever served any legitimate legal
1989-1990 hundreds of hymn singing rescuers
were arrested under the old laws which specified that sitting down in front of
the door or kneeling in the driveway and refusing to move would lead to an
arrest and a conviction. The same laws
which prohibited blocking the entrance to a church or a court house or a pawn
shop applied to health care facilities. There was a time a few years back when the
police would have raided such a facility
and charged those operating it with a felony.
Now this variety of homicide is classified as health care and the police give it special protection.
only were these rescuers arrested and
hauled off to jail, in the absence of the special protection found in C.R.S.
18-9-122 (2), but pain compliance was
used on completely nonviolent people to force them to walk. Then they often received severe sentences
from NARAL influenced judges--10 times what any other sit in protestors would
have received. Months in jail and
thousands of dollars in fines.
police in several cities used pain
compliance against completely nonviolent rescuers, many of whom suffered lasting injuries, such as in the
June 19th 1989 rescue in West
Hartford Connecticut. A similar attack upon rescuers took place at an
abortuary near Los Angeles. Senator
William Armstrong later held hearings into these attacks on rescuers which
received very little attention in the media. They documented the fact that
entirely peaceful hymn-singing rescuers
were violently handled by police in a number of cities where pro abortion
forces control the court house, as they do in Denver.
rescues had ended by 1993 when this law was passed. It was obviously redundant if aimed at rescuers. But the real intent of this law was to
cripple Sidewalk Counseling. And it has
at least halfway succeeded in doing that.
Along with forcing Ms. Scott to stay home with an ankle bracelet and to
be aware of the jail time suspended
on condition that she not fall afoul of these nebulous ordinances, this kind of
law enforcement scares off many others.
Which was just what the legislature intended.
history of the law
Review is warranted as to whether C.R.S. 18-9-122 (1-6) Is Unconstitutional because of the History of this Law which was
pushed through the Legislature by the abortion industry, by Planned Parenthood
and NARAL and their political allies, in order to target Sidewalk Counselors
and inhibit speaking and leafleting in front of abortion clinics.
The legislature may as well have
enacted a statute subjecting oral
protest, education, or counseling near abortion clinics to criminal penalty.
. . . The purpose and design of
the statute--as everyone ought to know and as its own defenders urge in
attempted justification --are to restrict speakers on one side of the debate:
those who protest abortions. [
Justice Kennedy's dissent in Hill v. Colorado 530 U.S. 703, 768 (2000) ]
his article in the 2003 Harvard Law Review, Professor Alan Chen says the
majority in the Hill decision upheld
this law even though everyone in Colorado
knew that the state adopted the bubble law solely to restrict anti-abortion
protestors.  Despite the bubble
law's formal neutrality, as discussed earlier, there was strong reason to doubt the sincerity of the legislature's
stated purposes.  . . . There is powerful evidence that the
legislature's principal or only concern was anti-abortion protestors. [ Page 17 / 56 Statutory
Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose,
38 Harv. C.R.-C.L. L. Rev 52 (2003) ]
this law was aimed at Sidewalk Counselors rather than protestors. Sidewalk
Counselors usually carry no signs, try to talk quietly to abortion customers
walking into the clinic on the public
sidewalk, and get them to take an Alternatives
leaflet. The issue of displaying signs
was a distraction from the real issue.
Even small signs are designed to be read 10 to 20 feet away. Of course Sidewalk Counselors sometimes walk
up to people while wearing a sign.
3 makes crimes of leaflet . . . education . . . counseling within 8 feet of someone who is within 100
feet of the door of a health care
facility. How did education get to be a crime ? It is
one on the assumption that ignorance
is bliss when women are going into Planned Parenthood to do something about
which they want to know as little as possible.
They wish to remain uneducated. And Planned Parenthood wishes them to remain uneducated.
law was aimed at sidewalk counselors trying to operate within what they naively
supposed to be their First Amendment rights to rescue babies from abortion by
talking and leafletting--aka Sidewalk Counseling. This law was designed to limit those rights
as narrowly as possible--to negate them actually. And it has, as Ms. Scott's case
illustrates. In a sense the law is narrowly tailored. Like a scope sighted sniper rifle which has
the Sidewalk Counselor in the legal cross hairs. Section 2 has a different defect. It is more like a cluster bomb in the way it
impacts whatever a Sidewalk Counselor is likely to do-- detains
. . . hinders . . . impedes.
April 20th 1993 edition of the Rocky
Mountain News, under the headline: Romer signs abortion bubble
bill into law has a photo of
Representative Diana Degette and Governor Roy Romer of Colorado when he signed
this law the day before. Pat Blumenthal,
the Executive Director of Colorado NARAL is among those standing behind the
Governor. The Denver Post and the Colorado
Springs Gazette Telegraph have articles of the same date cited by Alan Chen
in footnotes 109 and 110 of his 2003 Harvard Law Review article.
Jamieson, an associate director of Planned Parenthood of the Rocky Mountains
said: We're thrilled that Colorado has taken this strong step to protect the
safety of patients and medical staff.
Now they can be safe from leaflet . . . education
. . . counsel. A subhead says Abortion-rights forces say law lets them
take offensive. Which is just what
they did under this and other laws, resulting in many arrests of Sidewalk
Counselors at Planned Parenthood. This
is not the only law which is used against Sidewalk Counselors. But it was specially designed to encourage
biased law enforcement and to target those trying to save babies from
Romer said: this bill prevents the harassment of someone entering an abortion
clinic. As illustrated by Jo Scott's
case. She walked along with Laura Brown
while trying to talk to her and was charged with three counts of Harassment and one of detain-hinder-impede. Harassment
is defined as leafletting and talking--any attempt by sidewalk counselors to
communicate with abortion customers.
Representative Degette called the new law the only significant pro-choice bill to pass in Colorado since 1967.
Is pro-choice the
same as viewpoint neutral ?
preamble of CRS 18-9-122 addresses the right
to protest or counsel against certain medical procedures. Which discredits the pretence that this law
is viewpoint neutral. As Justice Scalia argued on page 4 of his
dissent in the Hill case: We know
what the Colorado legislators were taking aim at . . . for they set it forth in
the statute itself. On page 2 Scalia
says: the Court today continues and expands its assault upon their individual
right to persuade women contemplating abortion that what they are doing is
wrong. Because, like the rest of our
abortion jurisprudence, today's decision is in stark contradiction of the
constitutional principles we apply in all other contexts, I dissent. [ Justice Scalia's dissent in Hill v. Colorado, joined by Justice
Thomas 530 U.S. 703, 768 (2000) ] He further says: [ at 753 ]
There is apparently no end to the
distortion of our First Amendment law that the Court is willing to endure in
order to sustain the restriction upon the free speech of abortion opponents.
bogus pretence that this law really was designed to protect Health
Care Facilities in general was used by the Hill court to argue that the law is content neutral and viewpoint
neutral: "The Court ruled
that CRS 18-9-122 is not a regulation of
speech but a regulation of the places
where some speech may occur . . .
the speech in question is not content
based." Content neutral is a basic requirement for any regulation of
speech. [ Scalia / Thomas dissent in Hill case 6-28-2000 page 1
] In fact the law was clearly aimed at
anti abortion sidewalk counselors. That
was the only reason for this law. This
law covers hospitals where abortions are performed, as well as free standing
abortion clinics. But mostly it only
applies to the clinics because of the difficulty Sidewalk Counselors have in
identifying abortion customers going into a busy hospital.
was pushed through the legislature in 1993 by pro choice political forces.
Everyone who testified for this law at the legislature was affiliated
with NARAL or Planned Parenthood or the abortion industry. With one exception--a fellow whose testimony
was subsequently used to support the pretence that this law really was aimed at
protecting Health Care Facilities in
general and not just abortion clinics.
abortion providers attended the bill signing, including Boulder abortionist
Warren Hern. His affidavit in the Hill case states that the original 8
foot ordinance in Boulder was pushed by NARAL in 1986 when Leslie Durgin was
Mayor of Boulder and director of the Boulder Valley Women's [ abortion ]
Clinic. [ Exhibit B Affidavit filed in Hill v. Colorado 93-CV-1984 in Jefferson
County District Court ] She testified
when the Denver City Council passed their version of the 8 foot ordinance in
1991. She later became a senior
vice president of Rocky Mountain Planned Parenthood. And met with the staff members who set up Jo
Scott's arrest under section 3 of this law in 2007.
only witness not connected with Planned Parenthood, NARAL, or the abortion
industry to testify in favor of this law during the 1993 hearings was Mark Simon, a disability rights advocate.
Mr. Simon is confined to a wheel chair and he testified that he had
undergone numerous surgeries. And that
he would have been upset if anyone had confronted him on his way into the
hospital for one of these surgeries. He
did not testify that anyone ever had.
baboon liver transplant
Simon also told two stories about people being attacked on their way to get
health care: 1. a man receiving a
baboon liver transplant in Pittsburgh was
beset by animal rights protestors. 2. a man was knocked out of his wheelchair by
anti-Medicaid protestors in Florida. In
his 2003 Harvard Law Review article, Professor Alan Chen went to the trouble to
research these stories as best he could.
See footnotes 113 and 114. He did
find a story about a group protesting baboon liver transplant, although nothing
about a confrontation with the
transplantee. He did not find any record
of the other story.
obvious remedy for incidents like these, assuming they really occur, is to make it illegal to knock someone out of a
wheel chair. Which is not addressed by
the Colorado Buffer Law's prohibitions of
leaflet . . . education
. . . counseling or even its
prohibitions of detain . . . hinder . . . impede.
Simon's testimony was recycled as a notarized affidavit in the Hill case. It is part of the record of that case as
found in the Jefferson Country Court in Golden Colorado. The judge used it as a fig leaf of camouflage to show that CRS 18-9-122 really was
designed to protect Health Care
Facilities in general rather than places where abortions are performed and
that the law is therefore content neutral
and viewpoint neutral. And that is how it was used thereafter as the
Hill case went through the Colorado
courts and on to the U.S. Supreme Court.
It provides a very slender support for the claim that this law was not
aimed at anti abortion Sidewalk Counselors.
Diana Degette, the bill's sponsor, said I
was very grateful for the witness who testified that protest can take other
forms of expression: anti-Medicaid,
anti-animal experimentation, and so on.
[ Chen 121 ] Which presents a contrast with her other statement that
the new law was the only significant
pro-choice bill to pass in Colorado since 1967. The pretence that this law applies to Health
Care Facilities in general led to its restrictions being analyzed under the time, place, or manner analysis,
which applies only to content-neutral laws.
[ Chen 15 = 52-53 ] The majority
decision in the Hill case went along
with this pretence.
law was never designed to protect health
care facilities. It was designed to
attack what would otherwise be constitutionally protected activities outside of
abortion clinics. The way this law has
been used against Ms. Scott illustrates the original intent of the law. As Judge Haglund said: The
situation in which Appellant acted is exactly the type of situation to which
the legislature intended CRS 18-9-122 (2) to apply. [ as quoted earlier ]
case is typical of many Planned Parenthood cases in which anti abortion
defendants have been charged despite little or no evidence to sustain the
charge. There is a Planned Parenthood
friendly standard of law enforcement which prevails in the City of Denver. They get deluxe service from the police and
the City Attorney and the District Attorney and the judges, whose careers
depend upon the NARAL dominated wing of the Democratic Party.
sentences for minor and doubtful
offenses, like the one in this case, are part of a long established policy,
which has led to 150 arrests over the past 25 years, most of them for disturbing the peace by talking too
loud. Pastor Harvey Baynes and Bishop
Robert Zeiger were arrested for preaching at 20th and Vine. Ken Scott was arrested for air trespass--leaning over the
fence. Most of these cases ended with a
dismissal or an acquittal or were won on appeal. But pro life activists were constantly
harassed by this kind of arbitrary law enforcement. And instead of just being handed tickets they
were hauled off to jail in handcuffs and kept there half the night until they
were able to post bond.
under color of the law
Parenthood and NARAL sponsored Neighbors
Meetings attended by police officials, representatives of the Mayor's
office and the City Attorney's office and State legislators, where neighbors--Planned Parenthood
supporters--were encouraged to make complaints against protestors. The protestors were not invited to these
meetings and did not even know they were taking place until they found out
about them a few years later through discovery
in a section 1983 lawsuit filed against Planned Parenthood and the City of
Denver. Who were routinely attacking the
First Amendment rights of pro life activists under color of the law. That
phrase accurately describes what they were doing. They recruited neighbors to make complaints because they could almost never get
abortion customers to make complaints and follow through if they had to go to
court and start off by admitting what they were doing that morning. Despite the relentless pro choice propaganda, people are still deeply ashamed of having an
are police officers who perceive that the chance of promotion is enhanced if
they serve the Planned Parenthood program of special law enforcement. There are other police officers who resist
becoming errand boys for Planned Parenthood because they are personally pro
life or because they recognize that they are being pushed to bend the law. While other laws, like harassment, have to be bent to target Sidewalk Counselors, CRS
18-9-122 does not. Because it was
designed to do just that.
of us are aware that the stork does not bring judges to the bench, and that the
process by which they arrive there is political, even while everyone tries to
pretend that it isn't. The judges whose
careers depend upon Democratic mayors and governors are under a lot of pressure to go along with
the attack upon Sidewalk Counselors. The
situation is similar to the one that prevailed in the South in the 1960s when
the Segregationist wing of the Democratic Party controlled the court house, and
which produced a similar bunch of bogus arrests under color of the law, as
Section 1983 of Title VII of the 1965 Civil Rights Act aptly describes it. President Kennedy appointed 5 of the worst
segregationist judges ever to sit on the federal bench--scofflaw judges who
bent the law into a pretzel to preserve the racial status quo in the South. [ cf. Kennedy
Justice ] The State courts and the
Municipal courts were worse.
pro life Democratic Governor Robert Casey of Pennsylvania was denied the
opportunity to address the 1996 Democratic National Convention, he said: the
Democratic National Committee has become a wholly owned subsidiary of NARAL. That bias seriously affects law enforcement
policy in the City of Denver where this same group controls the court house
establishment. And it explains why this
law has been passed and upheld despite its glaring constitutional defects. The effort to perpetuate racial segregation
was a moral cancer at the very heart of Southern law enforcement. The necessity of defending the doctrine that abortion is medicine is having the same
effect today at all levels of the law.
Justice Department has the same agenda at the national level. In 2011 it filed Civil FACE cases against
Sidewalk Counsellors in several states including Colorado. On June 2nd 2011, the same morning Jo Scott
was given her ridiculously harsh sentence by Denver County Judge Claudia Jordan
for impeding and harassing, Ken and Jo Scott were handed a Summons in a civil lawsuit filed by the Obama Justice Department on
behalf of Rocky Mountain Planned Parenthood.
lawsuit sought a permanent injunction to keep protestors 25 feet away from the driveway and from the property
line. On the grounds that people trying
to hand out leaflets at the driveway were impeding,
which is more or less the same thing as obstructing. In effect, these Justice Department lawyers
attempted to import the nebulous standard of detain, hinder, impede into the FACE law. If you try to pass out leaflets at the
driveway, you are impeding / obstructing. Ms. Scott, with her other sentence hanging
over her, made a plea bargain and paid
heavy penalties to get out of this one.
Ken Scott fought it and won with the help of pro bono lawyers, after a
illustrates the degree to which NARAL subservient legal authorities at both the
national and the local level are willing to operate under color of the law like those governors and mayors and judges
who became scofflaws 50 years ago in
order to perpetuate racial segregation and keep Southern Negroes
disenfranchised. The wife of the current
Attorney General is part owner of an abortion clinic.
the attack on leafletting
other Sidewalk Counselors, Ms. Scott offers an Alternatives leaflet to incoming abortion customers. It has addresses and phone numbers for crisis pregnancy centers, homes, and
adoption agencies. She also offers
leaflets like The First Nine Months,
which has the Lennart Nilsson fiber optic photos of fetal growth and
the years, Ms. Scott and others have distributed these leaflets outside of
Planned Parenthood on a daily basis.
Surviving out there under the scrutiny of surveillance cameras and a
politicized police force mandates that she do none of the things she is falsely
accused of doing.
hundreds of babies have been saved from abortion since the daily Sidewalk
Counseling effort was launched in 1989.
On December 26th 1999, three babies were born on the same day to three
different women we had Sidewalk Counselled at 20th and Vine. To us it is a baby saved. To Planned Parenthood it is $ 500 lost and
the justification eroded that these abortions
are necessary. That is why Sidewalk
Counselors like Jo Scott are their number one target. That is why this law was passed to protect
the abortion industry--to reduce the number of escapes.
Leafletting is an essential part of Sidewalk
Counseling. Which is targeted by Section
3 of the Colorado 8 foot buffer
law. As is well argued by Justice
Kennedy on pages 18 to 23 of his dissent
in the Hill case. As he says on page 17: the law forecloses peaceful leafletting. In this case, Section 2 is being used to
stop leafletting. The vagueness of both conduct and location
created by a free floating and undefined prohibition of detain
. . . hinder . . . impede another person means that any near approach to an abortion
customer by a Sidewalk Counselor is targeted by this law.
case law on leafletting cited on
pages 18-23 of the Kennedy dissent
includes Meyer v. Grant Lovell v. City of Griffin Schneider v. State (Town of Irvington) Thornhill v. Alabama Carlson v. California Martin v. City of Struthers McIntyre v. Ohio Elections Commission.
The liberty of the press is not
confined to newspapers and periodicals. It necessarily embraces pamphlets and
v. City of Griffin, 303 U.S. 444. 452 (1938). The
streets are natural and proper places for the dissemination of information and
opinion; and one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some other
place. Schneider v. State (Town of
Irvington),. 308 U.S. 147, 163 (1939) You can protest
abortion by writing a letter to the editor or calling the talk show. What you can't do is rescue an abortion bound
baby from the trash bucket at Planned Parenthood. That is what Sidewalk Counselors do. And, as the Hasidic saying tells us: If you
save one child, you save the world.
The First Nine Months
Pamphlets have proved most effective
instruments in the dissemination of opinion. Martin quoting Scneider [ Kennedy dissent
22-23 ]. Which is especially true in
respect to a leaflet such as the
first nine months. Which
shows via the fiber optic photos of Lennart Nilsson the reality of the embryo
child which the abortion industry hides behind phrases like fetal tissue and two tablespoons of fluid. It
isn't just an opinion that the embryo
child is a baby. It is a fact
which is being deliberately concealed from abortion bound women. That concealment is facilitated by using the
newspeak term Health Care Facility to
describe what is actually an abortuary. Like calling Auschwitz a Recycling Center.
have to deny not only the humanity of the embryo child but the very existence
of a live human body. Does a blob of tissue have fingers and toes
? A 10-week-old embryo does. Whether she is a citizen or not and whether
she has a soul, there is a live body.
Which is why the abortion industry cannot tolerate Sidewalk Counselors
showing their customers the truth about what they are doing.
is well said that Truth is the first casualty in war.
And the war against unwanted
babies also requires a strenuous effort by abortion providers to shield
abortion customers from the truth about what they are about to do. Not surprisingly, they have no use for the Sidewalk Counselors who deprive them of
both revenue and self justification by turning women away from abortion. Bearing
witness to the truth is the primary thing that real Christians are called
to do. The systematic suppression of the
truth leads to every kind of evil.
Schneider made clear that while
citizens may not enjoy a right to force an unwilling person to accept a
leaflet, they do have a protected right to tender it.
[ Kennedy dissent in Hill page
18 ] Which is the issue that was
obscured in the testimonies in favor of the anti leafletting section of this
is a routine mis-statement of this issue, with no evidence to support
it--customers are forced to accept
leaflets. If someone does force you to accept a pro life leaflet
or a political flyer or a dry cleaning coupon, your remedy is to drop it in the
next trash receptacle you come to. Or
even to just drop it on the sidewalk if you are not afraid of the littering
laws. How to refuse a proffered leaflet
is a basic city skill that most of us have mastered. Beyond that, there are various laws which can
be invoked when we are forced to do
anything. If you are kidnapped and forced to read something, you have a
whole new case. The pretence that people
are the helpless victims of leafletting
supposedly justifies this law. As if
Sidewalk Counselors under the suspicious scrutiny of surveillance cameras and
Security Officers would be free to force
leaflets on people if they could only come within 8 feet without fear of
arrest. This law does not require
consent to a leaflet but rather prior
consent before the attempt to leaflet.
effective distance for leafletting is two arm lengths--about 4 feet. Even the majority in the Hill case acknowledged that the 8 foot buffer impacts the
opportunity to leaflet. Just as it was
designed to do. Especially the Alternatives leaflet and especially The First Nine Months. Which both pose a serious danger to the
mindset of an abortion bound woman.
Together they tell her: 1. Yes, it does look like a baby. 2. There are good alternatives to putting
your baby in the trash.
Spitting from 8 feet
Colorado Response to the original HillPetition
argues that the law was necessary because of demonstrations which featured surrounding, crowding, yelling at, grabbing,
pushing, shoving, hitting, and spitting.
They don't explain why the law neglected to include hitting and spitting etc. in the list of prohibited actions. This is a dishonest propaganda
caricature. Which has nothing to do with
the real intention of this law-- In order to prevent hitting and spitting we
have to ban education, leafletting and counseling within 8 feet. Actually, spitting
can be done from 8 feet away with a little practice. But there is nothing in this law to keep you
from getting closer. It is leafletting, not spitting, which is prohibited by this law.
the rescues of 1989-1991 some 50,000 rescuers
maintained an exemplary nonviolent discipline.
It was as good as the discipline of those 20,000 who participated in the
sit in movement in the spring of 1960, aimed at racially segregated lunch
counters, which launched the Civil Rights movement. And much better than the discipline of the
later movement, which steadily eroded.
The same mainstream media which had given sympathetic support to the
Civil Rights movement ignored the rescuers
when it didn't smear them.
document caricatures the QUESTION PRESENTED FOR REVIEW as whether the Colorado
Supreme Court was correct in holding that this law restricts aggressive, threateningly close approaches. In fact, it restricts all approaches
indiscriminately. These qualifiers are
not in the law and could hardly be defined if they were. One basketball player may engage in aggressive, threateningly close approaches
to another basketball player. But the
referee only blows the whistle if he actually fouls the other player. But,
supposedly, the criminal laws which have been on the books for 100 years were
not adequate to protect abortion customers from sidewalk counselors who engaged
in aggressive education, leafletting
and counseling. Despite surveillance
cameras, security guards and 10 times as many police officers present as anyone
else could get. These nebulous and undefined
terms were necessary to justify a law which is full of them.
Colorado Response also invokes dangerous physiological responses in medical
patients as the reason for the new law.
Which is obviously true in a way.
Abortion customers are liable to get upset if they have to walk past
Sidewalk Counselors and abortion protestors.
On the other hand, that may turn them away from having the
abortion. That result means much less danger to the other medical patient caught up in this procedure. Whose health
will be gravely compromised if they go through with it.
there not be some balancing of rights
in this situation ? Under the law,
parents have only a limited right to decide what is best for their
children. They are liable to wind up in
court if they decide to feed them nothing but carrots. Under the abortion laws they have an
unlimited right to decide that the kid is better off dead. And no one can question that decision. At considerable risk to herself, the Sidewalk
Counselor steps into that gap.
we are all forced not just to accept
abortion but to pay for it. Someone forced to take a leaflet will soon
recover. While someone subjected to the force of abortion--the extreme violence
of abortion--will not soon recover. Once
in a while there is violence outside the abortion clinic. But every day there is violence inside. What else would you call it ? Reproductive
Health Care ? Is it less violent because the victim is so tiny
and so helpless ?
The First Amendment, our cases illustrate, protects [ citizens ] right not only to
advocate their cause but also to select what they believe to be the most
effective means for so doing. Meyer v. Grant, 486 U.S. 414, 424 (1988) Urgent,
important, and effective speech can be no less protected than impotent speech,
lest the right to speak be relegated to those instances when it is least
needed. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347
(1995) [ Kennedy dissent in Hill page 24 ] Urgent,
important, and effective speech on the sidewalk in front of an abortion
clinic has saved many babies. That is
the issue in this case. Most of those
nominally opposed to abortion avoid the dangerous duty which Sidewalk
Counselors accept as the effective way to save babies. There are many who will speak out from a safe
distance. Deliver a banquet speech or
call the talk show. But babies bound for
an appointment inside one of these Reproductive
Health Clinics are not safe, and those who are serious about trying to
rescue them cannot put Safety First either.
Sidewalk Counseling provides a kind of stress test for the First Amendment as to whether it is really
some other rights--
isn't just the Constitutional rights of protestors
to Leaflet and sidewalk counsel which
are at stake in this case. Also at stake
is the right of the preborn child to a last minute advocate who might get her a
stay of the execution scheduled for
that morning. In the absence of any
other protection, the right to arrive at her birthday without being dismembered
and put in the trash bucket at Planned Parenthood, has come to depend upon a sidewalk
counselor whose right to attempt a rescue has also been trashed by Planned Parenthood friendly law
is also at stake, is the right of a pregnant woman to be offered alternatives to a choice which leads to 20 years of nightmares. A choice
dictated by her boy friend and by the pressures of an economy which mandates a
long postponing of child bearing. A
woman chooses to have an abortion for
the same reason that a fox chews off her foot to escape from a trap. The Sidewalk Counselor tries to help her find
a better way to escape from the trap.
boy friend leads her into the abortion clinic while her parents come along
behind for support. She is bawling. But it is
Her Choice. It is a necessary sacrifice for her to hold
onto a career which is the foundation of the luxurious American lifestyle. The number of American women who arrive at
age 40 without having any children has doubled in the last 40 years.
woman pushed to kill her own child by her boy friend and her parents and her
career has the right to hear from someone who might talk her out of it and save
her from a life time of regret and the nightmares that come from killing your
applaud those who keep their friends from driving drunk. We should also applaud those who risk arrest
to try and keep people from doing something that will destroy one life and
seriously damage another.
the right to privacy
The Right to Privacy, lurking in the shadow
of an Amendment, first announced by Griswold
v. Connecticut, morphed into a woman's Right to Choose what she wished to
do with her own body. Which means the
right to do whatever with the body of her pre born baby. Pay someone to get rid of that fetal tissue she is carrying. It has become an absolute right which trumps
any rights which might otherwise be assigned to the unborn baby. Like the right to a birthday.
Professor Charles Lugosi argued in 2001, abortion has become a Sacred Cow to which everything else
must be sacrificed. [ University of
Denver Law Review ] The feminists argue
that: If men could get pregnant, abortion would be a sacrament. There is some truth in that. Which explains why war is holy. The feminists have made abortion a
sacrament--the foundation of Women's Liberation. Even though women in general oppose abortion
more than men--a basic fact you will never learn from the media or the
feminists. It may be that you have to pay the price for freedom. In the case of abortion, someone else is
forced to pay the price for your freedom.
right of a pregnant woman to be let
alone as she approaches an abortion clinic cannot be squared with the right
of the preborn child to be let alone
in what would be the safe sanctuary of her mother's womb were she a wanted child. Being unwanted
has become a death sentence even while millions of couples who want to adopt
babies find none to adopt. That is one
of the things a Sidewalk Counselor tries to tell an abortion customer.
man in his own home with his own child arguably has a right to privacy. But, if he
begins to abuse that child, his neighbors have not only the right but the
obligation to interfere. But it is
otherwise with that Right to Privacy
which seems even to allow a pregnant woman to keep drinking and then give birth
to a baby who suffers for life from fetal alcohol syndrome. There is even a serious legal question as to
whether a man who deliberately causes a miscarriage can be charged with
surprisingly, the Right to Privacy
also trumps the rights of those who persist in believing that abortion is
murder, not medicine. And who act as if
they really believed that by doing their best to prevent abortions. That is what this case is about.
a difference of opinion
abortion medicine or is it murder ? Is
there some simple legal way to resolve this difference
of opinion ? Is there anyone who is
neutral and objective about abortion ?
Whose life has not been impacted directly or indirectly by abortion
? What is now a right was a crime within
living memory. It is not surprising that
many people have not adjusted to the new view.
The Romans exposed unwanted
infants to die and it was a crime to rescue them. But the early Christians did it anyway.
has created a deep division in American society. It is unlikely that there can be any legal
resolution. In the 1960s the American
Civil Rights movement and the anti Vietnam war movement set an example to the world of how nonviolent direct action could be a way
to work through a deeply divisive issue.
are those who oppose the violence of abortion by violence. There are others who draw upon the example
of the 1960s Civil Rights Movement and who try to employ the varieties of nonviolent direct action to oppose
abortion. Laws which refuse to make that
distinction, which suppress nonviolence,
promote violence. That is what CRS
is no legal protection left for the preborn baby in America. Not surprisingly, those who refuse to call
abortion medicine and persist in
calling it murder are treated as
outlaws. The ultimate question is who is
really outside The Law. It is the whole of American society, not just
the Supreme Court, which will have to answer that question.