Anti-Abortion Group Advances Some Covid Claims Against City

Greensboro, N.C., won release from a claim that it violated anti-abortion protesters’ religious free exercise rights by curtailing sidewalk counseling activities during the Covid-19 public health emergency, but it will have to defend against other allegations.

A stay-at-home order prohibiting mass gatherings and limiting certain activities and travel in Guilford County, N.C., was a neutral law of general applicability, not targeted at religion, and didn’t violate the U.S. Constitution’s free exercise clause, the U.S. District Court for the Middle District of North Carolina said.

But the court allowed Global Impact Ministries Inc. and counselors arrested or issued citations under the order to proceed against the city on First Amendment free speech and free association claims and 14th Amendment due process and equal protection claims.

It also said GIM, which operates as Love Life, could proceed on Fourth Amendment unlawful stop, detention, and arrest claims.

The case is similar to one in which a judge in the Western District of North Carolina allowed Cities4Life and Love Life to sue Charlotte and Mecklenburg County over Covid-19 stay-at-home orders that allegedly unconstitutionally impacted their religious rights. That court allowed a free exercise claim to proceed.

The Guilford County order was neutral on its face, as it didn’t target any specify type of speech, the court said. The plaintiffs, however, stated a plausible free speech claim, the court said.

The plaintiffs alleged they were engaged in constitutionally protected activity—walking, praying, and counseling outside an abortion clinic—when stopped by police. People walking in other nearby areas weren’t stopped, the Greensboro complaint said.

“Even in times of emergency, the First Amendment does not allow that disparate treatment to occur,” the court said in allowing the free speech claim to move forward.

But the free exercise claim failed because the order treated religious and secular activities in the same way, the court said. Unlike cases upholding religious rights against stay-at-home orders, the county’s order wasn’t more restrictive of religious activities than secular gatherings, it said.

The free association claim can move forward because the order allegedly doesn’t prevent people engaged in nonreligious activities to gather, the court said. Again, such disparate treatment is prohibited, Judge William L. Osteen Jr. said in Wednesday’s opinion.

The court previously dismissed the plaintiffs’ declaratory judgment and injunctive relief claims as moot because the order expired. It allowed a nominal damages claim to proceed.

Alliance Defending Freedom and Scott W. Gaylord of Greensboro represent GIM. Fox Rothschild LLP represents Greensboro.

The case is Global Impact Ministries, Inc. v. City of Greensboro, M.D.N.C., No. 20-cv-329, 3/16/22.