Attorney Terry O’Malley of Colorado leads the defense for a current case involving an experienced sidewalk counselor who maintains a regular presence outside abortion clinics. The case, which hinges on First Amendment free speech principles, is Mr. O’Malley’s second pro bono case for Life Legal Defense Foundation. A graduate of the University of Kansas School of Law and Colorado State University, he has practiced criminal defense law for 18 years. He is one of three attorneys at O’Malley Law Office, P.C. The firm serves clients charged with criminal offenses in the Denver metropolitan area and throughout Colorado. Its website is www.omalleylawoffice.com.
Please explain the current case you are handling for Life Legal Defense Foundation client Jo Scott, a grandmother of 11 who has been a sidewalk counselor outside abortion clinics for 30 years, the past 14 outside Planned Parenthood in Denver.
Because an eight-foot fence surrounds the facility, Jo often uses a tall ladder to look over the parking lot and offer help to women entering the abortion clinic. She and her husband are present five days a week. Last April, Jo was accused by a clinic customer of assault and harassment. Acting as her own attorney, she filed for discovery of a video recording of the alleged incident. The video showed her walking alongside the woman on the public sidewalk with her hands in her pockets. Jo defended herself at the first court hearing, which ended with a restraining order requiring her to stay 100 feet from all healthcare facility entrances, making it hard for her even to visit her own doctor. Realizing she needed professional legal help, Jo contacted me directly and we discussed the case. Jo indicated that she had been in touch with Life Legal Defense Foundation, who could help share the burden in her case. I spoke with LLDF and was encouraged by their offer of assistance both financially and with legal arguments. she contacted Life Legal, whose staff contacted me. Jo has saved hundreds of babies over the years and it is an honor to represent her. I clarified her protection order and got her more protection. The case was set for trial, so we made efforts to prepare motions to be filed based on constitutional issues that Jo may not have been able to identify herself. Jo did quite well for a layperson defending herself but we wanted to have her in a stronger position for an appeal should it be needed. Both U.S. and Colorado constitutional issues are involved, since both offer protections for people who want to speak to other people in a public forum such as a sidewalk. The law tries to strike a balance between medical care, as they call it — I call it killing your children — and freedom of speech. The restraining order overreaches into protected constitutional rights, saying you can’t talk to people on the sidewalk if it bothers or annoys them. This particular subsection of law has not been tested in Colorado courts, so this case would be a case of first impression on that issue in Colorado. It will be really interesting to see what happens if we lose at trial. We will raise free speech issues at the trial court and plan to be in good shape to raise the same issues on appeal using trial strategies that Jo would not have been aware of, had she been handling her own case.
Does this case have broader implications than Jo’s ability to protest abortion?
This is a free speech type of case so I think it will have some appeal to the courts. If the courts saw it strictly as a pro-life case, we probably would lose because the courts are not disposed to favor pro-life causes. This case has implications for all types of speech, not just pro-life speech.
Are there any other interesting points about this case?
Planned Parenthood has a private-firm lawyer whom they hire to come to all the hearings — and this isn’t even a Planned Parenthood case. They are paying several hundred dollars an hour for him just to come and observe — motions, hearings, subpoenas — whatever we do.
What inspires your pro-life work?
I am inspired by Biblical principles — how can you read the Bible and not be pro-life? — and compassion for the innocent and the weak. I became a Christian while attending Colorado State University, after paying attention to the work of Inter-Varsity, a non-denominational Christian evangelical organization. I worked for them for four years as a campus staff worker.
Can the pro-life community improve the chances of success in legal challenges?
It is important for pro-life protesters to educate themselves on the state of the law, maybe by working with an attorney. I promise you Planned Parenthood staff are trained and knowledgeable about the state of the law. Trained pro-life protesters would be less likely to make simple mistakes that could result in restricting their rights. Pro-life activists should approach attorneys on occasion and say, “Work with us in advance of any changes in the law. Give us a smarter defense, a better chance at trial.” Speaking specifically about pro-life Christians, I wish the whole Christian community offered broader support for pro-life protesters who are out there all the time in cold or hot weather, sacrificing a lot. I really respect what Jo and others are doing. I guess maybe one percent of Christians have protested before. Although I can’t be there physically with them, I want to support their work and encourage others to find out how they can be supportive, too.
Any suggestions for that?
We need to be excellent in all we do—in protesting and in supporting protesters. We could hold annual conferences with speakers presenting updates about the state of the law, which is always changing, so that there would be no unnecessary arrests and so that protesters would be able to respond to police appropriately when challenged.
How would you advise an attorney who is thinking about doing some pro bono pro-life work?
I would say that it’s neat for us to be able to see great, eternal, long-term significance in our work. There are attorneys who do a lot of this work and barely survive financially but most attorneys can strike a balance between regular practice and pro bono work. Doing some pro-life work is an opportunity to find long-term significance in your labor.