Kenneth Scott, abortion protester: Injunction rejected, attorney calls it precedent-setting

Update: Yesterday, the Justice Department's request for a preliminary injunction against abortion protester Kenneth Scott, federally charged with violating the Freedom of Access to Clinic Entrances Act, aka the FACE Act, was rejected. Scott's legal team considers the ruling a major victory that's potentially precedent-setting, while the spokesperson for Planned Parenthood of the Rocky Mountains vows to fight on.

Kenneth and his wife, fellow protester Jo Scott, are each named in the federal complaint, on view below in its entirety. She settled her case in October, but Kenneth's is ongoing. He's accused of walking or standing in the Planned Parenthood driveway, thereby preventing individuals from entering the facility, and calling clients and staffers names such as "baby killer" and "murderer."

The preliminary injunction asked that Kenneth be ordered to stay at least 25 feet away from Planned Parenthood of the Rocky Mountains' entrance until the case is resolved -- a process that could take many months. But Judge Philip A. Brimmer turned thumbs-down on that request, for reasons that more than satisfied Peter Breen, executive director and legal counsel for Chicago's Thomas More Society, an advocacy organization that assisted Kenneth in his defense. Representatives of Denver's Hackstaff Law Group also played a major role, but Breen presented the main argument.

Here's his take.

Peter Breen.
Peter Breen.

"The judge didn't give any credence to the argument by the United States that a car stopped in the driveway without anyone else being stopped behind it was a physical obstruction," he says. "If you stop to talk to Ken, you're doing so willingly. You're not being obstructed; you're chatting with someone on a public right of way. So while other cars may pull up while Ken is talking to somebody, the delays to those other people were brief -- twenty seconds to sixty seconds, if there was any delay at all. And the judge found that was not what the act was meant to cover."

By way of an example, Breen says, "The United States played a video of almost five minutes where Ken was chatting with the driver of a car. They engaged in conversation when no one was being blocked -- and the conversation didn't end because someone came up and moved out of the way. The conversation ended when the security guard for Planned Parenthood forced the conversation to end. So who's being pro-choice or anti-choice in that case? The guy stopping the conversation or the guy presenting alternatives in a conversation?

"One point I made in court is that Roe v. Wade protects an individual's right to choose an abortion -- but a choice presupposes two options. It also includes the right not to choose an abortion. And that's all Ken was doing: sharing options."

Technically, Brimmer's decision doesn't kill the claim against Kenneth. But Breen feels it certainly argues against pressing it further.

"A preliminary injunction is a bellwether for a lawsuit," he allows. "There are four major factors that have to be met before granting an injunction, including the balance of equity between the parties and public interest. But the number one factor is whether or not the plaintiff is likely to succeed on on the merits of the case -- and the judge went against the plaintiff on that factor. So the lawsuit is still active, but the judge said it's not likely to succeed at trial. And I don't see why the Department of Justice would keep five taxpayer funded attorneys on a case that the judge has already said is not meritorious."

Planned Parenthood spokeswoman Monica McCafferty begs to differ. Although she admits to being "extremely disappointed" by the decision, she says, "What we see on a daily or very frequent basis proves that our patients do have difficulty entering our building" because of Kenneth's presence.

For that reason, she hopes that the Justice Department continues with the case. As she puts it, "We remain committed to pursuing any legal avenue we can to ensure that women and men trying to get basic health care, including cancer screenings, birth control, Pap tests, STD testing and treatment and other essential care, are able to do so in a secure and safe environment."

A Planned Parenthood volunteer echoes these thoughts via e-mail, writing, "I have witnessed firsthand the tactics of the Scotts, and although I always defend their right to protest, I fear someone will get hurt as a result of their need to constantly push the line." Indeed, the author of the note requests anonymity because "they have been known to protest at the homes of named volunteers, which I could do without."

The Justice Department case was built on complaints from Planned Parenthood employees rather than patients, and Breen believes that weakened the U.S. argument from the judge's perspective. As for the long-term impact of the decision, he says, "I fully intend that this be used in other cases. This was a federal judge looking at a legal theory by the United States, and it's a theory that needs to be debunked -- so to me, that's precedent. This was a big case for the Department of Justice. They listed ten separate incidents and had five attorneys, and they crowed about having filed suit. But they were tested and found wanting.

"I understand that there's a lot of history and controversy with Ken," he notes, referencing the many times he and Jo have been arrested over the years. "But you don't need the First Amendment for speech that's popular. It's speech that's unpopular that needs protection. But just because his speech is unpopular with Planned Parenthood employees doesn't mean it should go unprotected."

Page down to read our earlier coverage, including the Justice Department complaint.  

Original post, 9:07 a.m. January 26: Today, abortion protester Kenneth Scott and his legal team are in the 10th Circuit Court, fighting a preliminary injunction that orders him to stay at least 25 feet away from Planned Parenthood of the Rocky Mountains' entrance until a federal case against him is resolved. His supporters argue that he's merely been engaging in free speech, but Planned Parenthood spokeswoman Monica McCafferty disagrees.

The Justice Department complaint, on view below, names both Kenneth and Jo, the subject of our 2008 cover story "Planned Parenthood's Scheme to Bust Abortion Protestors."

Last April, Jo was found guilty of violating Colorado's bubble law, which prohibits anti-abortion types from coming within eight feet of anyone in a hundred-foot radius of a clinic without their okay. Then, in June, she and Kenneth were named in federal charges related to the Freedom of Access to Clinic Entrances Act, also known as the FACE Act. Among the allegations against her: She's said to have physically poked and shoved a man who'd accompanied a client to a clinic.

In October, Jo settled this case. According to the U.S. Attorney's Office, the deal calls her her to be "permanently enjoined from using force, threat of force or physically obstructing any person because that person is or has been obtaining or providing reproductive health services." She was also ordered to pay $750 apiece to the shoving victim and another person she encountered a few months previous.

However, the case against Kenneth continued, and he's receiving high profile assistance from Chicago's Thomas More Society, a nationally recognized pro-life organization.

Kenneth allegedly walked or stood in the Planned Parenthood driveway, preventing individuals from entering, and often called clients and staffers names such as "murderer" and "baby killer." However, Thomas More Society spokesman Peter Breen disputed this account in a December interview with Westword's Melanie Asmar. "We're contending the evidence will show Ken Scott did nothing wrong," he told her. "Ken Scott remained at all times in the public right-of-way. He was fully in his rights; he merely sought to talk to folks. He didn't throw himself in front of cars.... All he did was wave folks over to try to talk to them."

In spokeswoman McCafferty's view, however, Kenneth "denied clients access through obstruction," which she sees as a clear violation of the FACE Act.

"We believe any client should be able to access services without intimidation tactics and fear of being obstructed," she adds. "We hope that today, we'll see that we have support to insure that clients can access our center without that kind of harassment."

Read the complaint against Kenneth and Jo Scott below.

Jo and Kenneth Scott: FACE Act Violation Complaint

More from our Follow That Story archives: "Jo Scott, abortion protestor, found guilty of violating clinic bubble law -- again."

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