670 F.Supp.3d 100
S.D.N.Y.2023Background
- Westchester County enacted Local Law 9-2022 (Chapter 425) on June 27, 2022 to protect access to reproductive health care facilities after incidents including a forcible sit-in at an abortion clinic.
- Plaintiffs are two individuals (Oksana Hulinsky and Regina Molinelli) and two organizations (White Plains 40 Days for Life and 40 Days for Life). They practice "sidewalk counseling": approaching people near clinics to offer information and literature opposing abortion.
- Plaintiffs challenged six provisions of Chapter 425—§§ 425.31(a), (c), (d), (e), (f), and (h)—seeking a preliminary injunction enjoining enforcement. The county opposes.
- At the preliminary-injunction stage the court evaluated standing (organizational, associational, and pre-enforcement), whether plaintiffs’ intended conduct is "arguably proscribed," likelihood of success on First and Fourteenth Amendment claims, irreparable harm, and public interest.
- The court denied the preliminary injunction: both organizations lack standing; individual plaintiffs have standing only to challenge § 425.31(c) (the follow-and-harass provision) but failed to show likelihood of success, irreparable harm, or public-interest support for an injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Organizational/associational standing of 40 Days National and 40 Days White Plains | Orgs say Chapter 425 chilled activities and forced diversion of resources | County says orgs lack member-representation standing under §1983 and show no material impairment of core activities | Both organizations lack standing |
| Pre-enforcement standing for individual plaintiffs re: six challenged provisions | They intend to continue sidewalk counseling near clinics and reasonably fear enforcement | County says sidewalk counseling is not proscribed by most provisions and no credible prosecution threat | Individuals lack standing to challenge §§ 425.31(a), (d), (e), (f), (h); they have standing only as to § 425.31(c) |
| First Amendment challenge (content-based / overbreadth) to § 425.31(c) (follow-and-harass within 25 feet) | Provision is content-based and overbroad because it can be applied to proselytizing or counseling and can prohibit continued speech after an implied request to stop | County argues § 425.31(c) is content-neutral, location- and conduct-regulating (like Hill), and narrowly tailored to protect clinic access | Court held § 425.31(c) is content-neutral and not substantially overbroad; plaintiffs unlikely to succeed on this claim |
| Vagueness (Due Process) challenge to § 425.31(c) | Terms like "implied request to cease" and "alarm or seriously annoy" are unconstitutionally vague | County points to Penal Law analogues and scienter "knowingly" requirement, plus existing case law defining harassment | Court held the statute is not unconstitutionally vague on its face or as-applied; plaintiffs unlikely to succeed |
Key Cases Cited
- Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60 (2d Cir. 2007) (preliminary injunction is extraordinary remedy)
- Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 27 (2d Cir. 1995) (distinguishing mandatory vs. prohibitory injunction standards)
- Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (an injunction barring enforcement is a prohibitory injunction)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing test: intent to engage in conduct arguably proscribed and credible threat of prosecution)
- Picard v. Magliano, 42 F.4th 89 (2d Cir. 2022) ("arguably proscribed" standard for pre-enforcement challenges)
- Hill v. Colorado, 530 U.S. 703 (2000) (upholding a follow-and-harass regulation as content-neutral and place-regulating)
- McCullen v. Coakley, 573 U.S. 464 (2014) (struck down fixed buffer but noted New York follow-and-harass provision might be permissible)
- Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011) (associational standing not available in §1983 to assert members' rights)
- Connecticut Parents Union v. Russell-Tucker, 8 F.4th 167 (2d Cir. 2021) (organizational standing requires perceptible impairment of core activities)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based restrictions trigger strict scrutiny)
- Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (caution against attributing the motive of a single legislator to an entire legislative body)