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Court of Appeals upholds harassment injunction against abortion protestor

Nancy Kindschy v. Brian Aish, 2022 WI App 17; case activity (including briefs)

Kindschy, a nurse practitioner at a Planned Parenthood clinic, obtained a harassment injunction against Aish, an anti-abortion protestor.  On appeal, Aish argued that his conduct did not qualify as “harassment” as defined by §813.125. He also claimed that his conduct had a “legitimate purpose”–he has a right to proselytize, and he was only trying to force Kindschy to leave her employment and shut down Planned Parenthood.

This is not a criminal case. However, the violation of a harassment injunction has criminal consequences for the violator. The court of appeals’ opinion, which is “recommended for publication,” interprets and applies critical phrases in §813.125, the harassment injunction statute.

Under §813.125(4)(a)3, a court may enter a harassment injunction when it “finds reasonable grounds to believe that the respondent has engaged in harassment with intent to harass or intimidate the petitioner.”

“Harassment” means ” “[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” §813.125(1)(am)4.b. The court of appeals reviewed the evidence presented at the injunction hearing and held:

¶19 This evidence established a pattern of repeated actions that frightened Kindschy. Aish approached Kindschy repeatedly over the course of several months, and during each interaction, he berated her with veiled threats suggesting harm toward both Kindschy and her family, and he falsely accused her of actions she did not commit. On this record, the circuit court properly determined that Aish engaged in a pattern of harassing or intimidating conduct within the meaning of WIS. STAT. § 813.125(1)(am)4.b. (For details on Aish’s conduct, click here).

Regarding the “no legitimate purpose” element, Aish argued that the statute does not reach “protected speech.” The statute ” is not directed at the exposition of ideas but at oppressing repetitive behavior which invades another’s privacy interests in an intolerable manner.” Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987).

The court of appeals agreed with the circuit court that using scare tactics to pressure Kindschy to quit her job is not a “legitimate purpose.” Both courts also rejected Aish’s claim that he was acting out of concern for Kindschy’s spirituality. Opinion, ¶22.

The court of appeals stressed that Aish cannot transform his harassing behavior into “protected speech” under the 1st Amendment by relabeling it “political protest.” Opinion, ¶23 (discussing Board of Regents-UW Sys. v. Decker, 2014 WI 68, ¶20, 355 Wis. 2d 800, 850 N.W.2d 112.).

Finally, the court of appeals rejected Aish’s argument that the injunction itself violates his 1st Amendment right to protest abortion and Planned Parenthood at the clinic where Kindschy worked.  For starters, that particular clinic does not perform abortions. Plus, the injunction was narrowly tailored to bar Aish’s presence on the days that Kindschy works there.

¶26 As alluded to above, it is well established that an individual’s ability to protest is not unlimited. Decker, 355 Wis. 2d 800, ¶44. Likewise, the right to protest against abortions is not unfettered. The United States Supreme Court upheld a Colorado statute that banned anti-abortion protestors from approaching patients and employees entering or leaving clinics. Hill v. Colorado, 530 U.S. 703, 707-15 (2000). Additionally, in American Life League, Inc. v. Reno, 47 F.3d 642, 645-48 (4th Cir. 1995), the Fourth Circuit upheld the constitutionality of the Freedom of Access to Clinic Entrances Act of 1994, a federal law enacted to limit anti-abortion activists who had become increasingly violent in their attempts to shut down or disrupt abortion clinic operations.

¶27 Furthermore, we are not persuaded by Aish’s reliance on Snyder for the contention that any conduct done in the name of an anti-abortion protest is public in nature and therefore subject to special protection. To be clear, Aish was not protesting at an abortion clinic. His efforts were not geared toward changing the minds of the general public or legislators. Rather, Aish was attempting to get Kindschy specifically to change her mind and to resign her position as a nurse practitioner at the Blair Clinic. Stated differently, Aish was attempting to convince a private citizen to end her employment with a private organization, by making comments that instilled fear and trepidation. Aish’s efforts were almost entirely personal—and not public—in nature.

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