Court green-lights pro-life sidewalk counseling lawsuit

A federal judge revived a pro-life advocate’s civil rights lawsuit against the city of Charlotte, N.C., last Tuesday. David Benham, founder and president of the pro-life organization Cities4Life, sued the city in April 2020 after police arrested him on charges of violating a COVID-19 gathering ban while participating in pro-life sidewalk counseling activities. The court’s ruling, though it does not resolve the case, serves as a correction to governmental overreach during public health emergencies.

Two years ago, Benham and others were praying for and offering counsel to women entering A Preferred Women’s Health of Charlotte, one of three abortion facilities in the city. Cities4Life provides prayer, counseling, medical referrals, and material support to women with unplanned pregnancies. Benham had received confirmation from Maj. Andrew Kornberg of Charlotte-Mecklenburg Police Department on March 28, 2020, that the plans of his organization and a related ministry, Love Life, complied with the COVID-19 directive.

But later that day, after being notified of the sidewalk counselors’ presence, Mayor Pro Tem Julie Eiselt sent out a tweet asking the police department to “please shut this activity down.” Six days later, 12 police officers confronted Benham and a handful of other volunteers on the sidewalk outside the abortion center. The officers arrested several people, including Benham, and cited a few other counselors for violating the city’s COVID-19 order limiting gatherings to 10 people.

Benham is no stranger to controversy. Along with twin brother Jason, he was set to host the HGTV home improvement reality series Flip It Forward in 2014, but it was canceled after media publicized the brothers’ Biblical views on abortion and sexuality.

The pro-life advocate and ministries sued the city and county on April 18, 2020, arguing government officials violated their rights to free speech and free exercise of religion. Benham also said the group was exempt from the city’s order, as they were a social services agency and were following social distancing guidelines on the sidewalk. Charges were dismissed in early 2021.

In last week’s opinion, U.S. District Judge Graham Mullen rejected Benham’s free speech claim because the COVID-19 order wasn’t about the content of the group’s speech. But he allowed the pro-lifers’ argument that the order violated the free exercise of religion. The judge compared Benham’s religious ministry with other allowed activities, such as retail shopping: “Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here.” Mullen concluded that while preventing the spread of the virus was a compelling interest, the city’s directive was not narrowly tailored, as it should have been.

Even though the city has lifted its gathering ban, a ruling in the case is still needed, said Alliance Defending Freedom’s Kevin Theriot, who represents Benham. “They used this crisis as an excuse to crack down on speech they don’t like,” he said, adding that a ruling would communicate that government officials cannot violate people’s rights and then try to avoid liability by rescinding the law. The lawsuit allows the pro-life activists to seek damages for the arrests and for the shutdown of religiously motivated activity. Theriot said the case will now proceed to trial.

Cities regularly attempt to control pro-life sidewalk counselors, most commonly by the imposition of so-called “bubble zones” around abortion facilities. In October 2019, a federal appeals court upheld a 15-foot buffer zone outside Pittsburgh abortion facilities but said it did not prohibit peaceful, one-on-one conversations. In 2014, the Supreme Court struck down a Massachusetts law that banned anyone from standing in a 35-foot buffer zone outside abortion facilities, ruling that state or local governments must demonstrate they made an attempt to use the least restrictive means to address problems when free speech is involved.