NOW v. Operation Rescue , 726 F. Supp. 300 ( 1989 )

726 F. Supp. 300 (1989)

NOW, et al., Plaintiffs,
v.
OPERATION RESCUE, et al., Defendants.

Civ. A. No. 89-2968-LFO.

United States District Court, District of Columbia.

November 8, 1989. Order November 9, 1989.

John H. Schafer, Laurence J. Eisenstein, Pamela S. Passman, Richard H. Seamon, Covington & Burling, Sarah E. Burns, Washington, D.C., Alison Wetherfield,^[*] NOW Legal Defense and Educ. Fund, New York City, for plaintiffs.

Jay Alan Sekulow,^[**] James Matthew Henderson, Sr., Douglas W. Davis, Christian Advocates Serving Evangelism, Washington, D.C., for Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Clifford Gannett, Michael McMonagle, Michael Bray, and Jayne Bray.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiffs, National Organization for Women, 51st State National Organization for Women, Maryland National Organization for Women, Virginia National Organization for Women, Planned Parenthood of Metropolitan Washington, National Abortion Federation, Commonwealth Women's Clinic, Capital Women's Center, Hillcrest Women's Surgi-Center, and Metropolitan Family Planning Institute move for a preliminary injunction enjoining defendants Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Patrick Mahoney, Clifford Gannett, Michael McMonagle, Michael Bray, and Jayne Bray from, among other things, physically impeding access to and egress from premises where plaintiffs render legal, but (to some) controversial, medical services and advice to women. Defendant Michael McMonagle has not been served. All other defendants have been served and have responded to the motion and appeared at a hearing through counsel, except defendant Patrick Mahoney who appeared pro se.

The complaint alleges five causes of action. Three of those are based on state law claims of trespass, tortious interference with business relationships, and public nuisance. The two federal causes of action allege a conspiracy under 42 U.S.C. § 1985(3) to deny the constitutional rights to travel and privacy of those women who seek services offered by plaintiffs.

A hearing on plaintiff's application was held on November 7 and 8, 1989. The following findings of fact and conclusions of law are made pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

1. Four of the plaintiffs render advice and medical service with respect to abortion and family planning. The Capitol Women's Center and the Hillcrest Women's Surgi-Center are located in the District of Columbia. The Metropolitan Family Planning Institute is located in Maryland. The Commonwealth Women's Clinic is located in Virginia. In addition, plaintiff Planned Parenthood provides medical services at sites in the Metropolitan Washington area—one located in the District of Columbia and the other located in Silver Spring, Maryland. See Complaint at ¶¶ 9, 11-14. A significant number of patients travel across state lines to obtain medical services at these sites. See Dickenson-Collins Aff. at 4; Codding Aff. at 3.

2. A pamphlet allegedly published, and not disavowed by defendant Veteran's Campaign for Life invites people to "Come to the nation's capital this Veteran's Day, November 10th and 11th, for the Veteran's Campaign For Life.... On the evening of the 10th, a prolife rally and training will be held to prepare as many as we can to rescue the unborn on the 11th at a local DC abortuary." The pamphlet further states that this activity is scheduled for the morning of November 11th. There is also in evidence a pamphlet containing a "Schedule of Events," which lists as the activity for November 17th and 18th at 7:30 a.m.: "Rescue those who are unjustly sentenced to death!" Plaintiffs' Exhibit D at 4 (Attachment A).

3. In a sworn affidavit, defendant Terry states that he has "participated in aborter blockades in the past." Terry further explains that "while the child-killing facility is blockaded, no one is permitted to enter past the rescuers.... Doctors, nurses, patients, staff, abortion-bound women, families of abortion-bound women—all are prevented from entering the aborter while the rescue is in progress." Terry Aff. at ¶ 6 (Attachment B).

4. Defendants' literature publicizing the upcoming protests contains no indication of which premises are to be targeted. Defendants' counsel and pro se defendant Mahoney have not been able to inform the court of any specific plans to blockade a particular premise, but conspicuously fail to traverse the allegations that there are such plans. In the past, defendants have not publicly revealed the premises that will be the target of their blockades. See Dickenson-Collins Suppl.Decl. at ¶ 2; Savarese Aff. at ¶ 3;

5. There is uncontradicted evidence that defendants Operation Rescue and Project Rescue have been the motivating force behind other blockades similar to those presently threatened. In a letter on Operation Rescue letterhead, defendant Terry explains "the growth of this movement":

On April 29th, the National Day of Rescue II, rescue groups in 46 cities participated in rescue missions. Also, prolifers in another 17 cities did not need to risk arrest because all of the killing centers closed down for fear of the upcoming rescues. In all, 49 babies were confirmed saved with over 5,000 risking arrest; and 3,400 actually arrested.

Plaintiffs' Exhibit D at 7 (see Attachment A).

6. Patricia Ireland, the Executive Vice President of plaintiff NOW has attested that between 7:00 a.m. and 7:30 a.m. on April 29, 1989 hundreds of anti-abortion activists converged on the Metropolitan Family Planning Institute in College Park, Maryland and effectively blocked ingress and egress during the entire time that the clinic was scheduled to be open. Ms. Ireland alleges, without contradiction by defendants, that the "National Day of Rescue" was organized by Operation Rescue and that the "Day of Rescue" in the DC area was organized by Project Rescue and defendant Clifford Gannett. See Ireland Aff. at 1. See also Spears-Moore Aff. at ¶ 2 (explaining that persons associated with Operation Rescue have in the past blocked the entrance to the Hillcrest Women's Surgi-Center).

7. Decisions in other jurisdictions evidence the blockading by Operation Rescue of access to and egress from places performing lawful medical services. See, e.g., Cousins v. Terry, 721 F. Supp. 426 (N.D.N. Y.1989) (chronicling the efforts of Randall Terry and "Operation Rescue" to block access to premises in New York); see also Town of West Hartford v. Operation Rescue, 726 F. Supp. 371, 373-75 (D.Conn.1989); Aradia Women's Health Center v. Operation Rescue, No. C88-1539R, Order at 2 (W.D.Wash. January 10, 1989).

8. Plaintiffs' complaint alleges that defendant Terry is the National Director of defendant Operation Rescue and that he had been involved in organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 19. Defendant Terry has neither refuted nor disaffirmed this allegation. See Terry Aff. at ¶ 7(c).

9. At the hearing on November 7, 1989, pro se defendant Mahoney stated that he is a paid consultant for Operation Rescue and that he has been in the Washington Metropolitan area for the past five weeks organizing and coordinating the D.C. Project. Defendant Mahoney specifically disavowed any intention to participate in blockades of plaintiffs' premises, but was unable to refute the evidence that there are such plans.

10. Plaintiffs' complaint alleges that defendant Gannett is a director of Project Rescue and is organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 21. In addition, plaintiffs have submitted evidence indicating that defendant Gannett organized Operation Rescue activities in the Washington Metropolitan area on April 29, 1989, which activities resulted in the blockading and closing of at least one premises. See Ireland Aff. at ¶ 1. Defendant Gannett has not refuted or disaffirmed these allegations, See also Gannett Aff.

11. Plaintiffs' complaint alleges that defendant Michael Bray has organized and coordinated activities for Operation Rescue, and is organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 23. Defendant Michael Bray, however, disputes these allegations. He has stated: "I have not been involved directly or indirectly in planning any of the actions complained of by Plaintiffs.... I have not distributed any literature, such as the exhibits which are part of Plaintiffs' Application for an Expedited Preliminary Injunction.... I do not plan, and have not made any commitment or representation, to participate in any of the training or rescue or penitential activities of either the Veterans Campaign for Life or the D.C. Project." See Michael Bray Aff. at ¶¶ 3-5.

12. Plaintiffs' complaint alleges that defendant Jayne Bray is organizing and coordinating activities planned by defendants for the Washington Metropolitan area, including meetings at the D.C. Armory on or around November 15-17, 1989. See Complaint at ¶ 24. Defendant Bray has neither refuted nor disaffirmed these allegations, though she has stated: "I do not plan, and have not made any commitment or representation, to participate in any illegal activity of either the Veterans Campaign for Life or the D.C. Project." Jayne Bray Aff. at ¶ 3.

13. Defendant organizations have not provided any evidence to refute nor have they disaffirmed their alleged intention to interfere with provision of medical services by blocking access to and egress from the premises where plaintiffs render such services.

14. Affidavits submitted by plaintiffs and the testimony of the District of Columbia Metropolitan Police Department Inspector Louis Widawski establish that police response to past blockades has not prevented interruption of patient ingress and egress to and from premises where plaintiffs render medical services. See Ireland Aff. at ¶ 3; Dickenson-Collins Aff. at ¶ 3. Plaintiffs' representatives recently have met with representatives of the local police to discuss police response to the threatened blockades. The police have informed plaintiffs that "they cannot, despite their own meetings with ``Operation Rescue' leaders, determine where blockades will occur." Savarese Aff. at ¶ 3. The police have indicated to plaintiffs that even if they knew in advance which premises will be blockaded, they do not have sufficient personnel and resources to prevent protracted interruption of access to egress from such premises. See Ireland Aff. at ¶ 4; Savarese Aff. at ¶ 2-4; Dickenson-Collins Suppl. Decl. at ¶ 2.

15. For the past eight years, Inspector Widawski had been in charge of coordinating police response to special demonstrations. In that capacity he became familiar with the blockading tactics used by Operation Rescue. Widawski testified that Operation Rescue had in the past refused to inform the police which clinics were to be targeted and at times attempted actively to mislead the police as to the intended targets. Widawski also testified that participants in past Operation Rescue blockades have prevented access to or egress from the targeted premises by locking arms and forming a human barrier. According to Inspector Widawski, protestors would breach police barricades despite the use of such non-violent methods as saw horses, tape, metal barricades, and human chains of police officers. Widawski also testified that, although the Metropolitan Police Department had the resources to arrest large numbers of people, such arrests could take several hours, primarily because Operation Rescue protestors usually did not cooperate with the police and had to be carried to a police transport vehicle by two or more officers. Widawski's opinion was that neither arrest nor the threat of arrest and conviction deterred Operation Rescue blockades.

16. Inspector Widawski also testified that Operation Rescue succeeded in blocking access to and egress from a clinic in the District of Columbia on or about April 29, 1989. On that day, it took the police approximately four hours to arrest and remove all of the people who were blocking access to the clinic.

17. Assistant United States Attorney Michael Martinez appeared at the hearing on November 7, 1989 on behalf of the United States pursuant to the Court's request that the United States Attorney familiarize himself with this case and its law enforcement implications. In response to the court's questioning, Mr. Martinez represented that the United States was not in any position at this time to participate as either an intervenor or an amicus curiae. Mr. Martinez also informed the Court that he was not aware of any federal police activity with respect to the threatened blockades and that he did not know whether the federal police had been contacted. See Transcript of Preliminary Injunction Hearing, November 7, 1989.

18. Defendants have obtained two public gathering permits from the National Park Service. A permit issued to the "Veterans Campaign for Life" authorizes a prayer vigil near the Vietnam Veterans Memorial from 12:00 p.m. to 2:00 p.m. on November 10, 1989. A permit issued to "The DC Project (Operation Rescue)" authorizes a prayer gathering near the Lincoln Memorial from 12:00 p.m. to 1:30 p.m. on November 16, 1989. Neither permit is subject to any conditions that would restrain defendants from blockading plaintiffs' premises.

CONCLUSIONS OF LAW

1. Plaintiffs have alleged that defendants have conspired in violation of 42 U.S.C. § 1985(3) to deny the constitutional rights to travel and privacy of women who seek the services of plaintiffs and the correlative right of plaintiffs to render those services. Plaintiffs' claim raises important and somewhat unsettled questions of federal law. Compare New York State NOW v. Operation Rescue, 886 F.2d 1339, 1357-61 (2d Cir.1989) with Roe v. Abortion Abolition Soc'y, 811 F.2d 931, 933-37 (5th Cir. 1987) and Mississippi Women's Medical Clinic v. McMillan, 866 F.2d 788, 791-95 (5th Cir.1987). Plaintiffs' federal claims are not "so insubstantial, implausible, foreclosed by prior decisions ... or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 94 S. Ct. 772, 776-77, 39 L. Ed. 2d 73 (1974).

2. Because the federal claims are not insubstantial and because plaintiffs' federal and state claims are such that they would ordinarily be tried in one judicial proceeding, the state claims are cognizable in federal court. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). The decision whether to retain the matter, however, is within the discretion of the court, and is based on considerations of "judicial economy, convenience and fairness to litigants." Id. at 726 n. 15, 86 S.Ct. at 1139 n. 15. If it is ultimately determined that plaintiffs have standing to pursue their constitutional claims, the proceeding on the merits of the federal and state law claims will require development and consideration of identical facts and closely related legal issues. It is likely, though not yet certain, that plaintiffs' constitutional claims will lie. However, the preliminary relief sought by plaintiffs can be afforded on the basis of the state claims without reliance upon the constitutional ones.

3. Plaintiffs have standing to sue to protect premises at which they render medical service and advice to patients against threatened blockade and trespass.

4. The plaintiffs are likely to succeed on their claim that defendants Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, and persons acting in concert with them have in the past blockaded access to and egress from premises operated by defendants and realistically threaten to do so again on and after November 11, 1989, in the Washington Metropolitan area, including the District of Columbia.

5. Such blockading of plaintiffs' premises would violate District of Columbia laws proscribing trespassing (D.C.Code § 22-3102) and public nuisances (see B & W Management Inc. v. Tasea Investment Co., 451 A.2d 879, 881-82 (D.C.App.1982)), as well as tortiously interfere with plaintiffs' professional and business relations. See Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 288 (D.C.App.1977).

6. Federal law enforcement authorities have indicated that they are not now available to participate in any effort to maintain access to and egress from plaintiffs' facilities. The Metropolitan Police Department of the District of Columbia has the intention and capability to enforce local law at the site of any blockade, but has not in the past prevented, and does not now expect to be able to prevent, defendants from blockading the premises of one or more plaintiffs for several hours.

7. Such blockading for several hours or more would cause irreparable injury to plaintiffs' professional and business activity and to patients for whom they have a professional and fiduciary responsibility.

8. Such blockading is not speech protected by the First Amendment.

9. Intervenors New Summit Medical Center, Washington Surgi Clinic, and Washington Hospital Center have an immediate legal interest in these proceedings.

An accompanying Order will grant the motion to intervene and will enjoin certain of the defendants from blockading access to and egress from specified premises occupied by certain plaintiffs and intervenors.

PRELIMINARY INJUNCTION

For the reasons stated in the accompanying Memorandum of Findings of Fact and Conclusions of Law, it is this 8th day of November, 1989, hereby

ORDERED: that the motions of New Summit Medical Center, Washington Surgi Clinic, and Washington Hospital Center for leave to intervene are granted; and it is further

ORDERED, ADJUDGED, and DECREED: that defendants Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, and persons acting in concert with them are enjoined and restrained from in any manner, or by any means, trespassing on, blockading, impeding or obstructing access to or egress from the following premises: Capitol Women's Center, 1339 22nd Street, N.W., Washington, D.C., Hillcrest Women's Surgi-Center, 7603 Georgia Avenue, N.W., Washington, D.C., Planned Parenthood Clinic, 1701 Q Street, N.W., Washington, D.C., New Summit Medical Center, 2112 F Street, N.W., Washington, D.C., Washington Surgi Clinic, 1018 22nd Street, N.W., Washington, D.C., Washington Hospital Center, 110 Irving Street, N.W., Washington, D.C.; and it is further

ORDERED: that defendants Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, and persons acting in concert with them are enjoined and restrained from inducing, encouraging, or directing others in any manner, or by any means, to trespass on, blockade, impede or obstruct ingress or egress from such premises; and it is further

ORDERED: that no security need be posted as a condition of this Preliminary Injunction; and it is further

DECLARED: that this ORDER is in aid, and not in derogation, of the authority and responsibility of the United States, the District of Columbia, and their respective law enforcement agencies with respect to enforcement of relevant federal and local laws.

ORDER

The terms of the Court's Preliminary Injunction issued November 8, 1989 in this cause are hereby extended to include the following premises: Hillcrest Women's Surgi-Center, 3233 Pennsylvania Avenue, S.E., Washington, D.C.; Planned Parenthood of Metropolitan Washington, D.C., Inc., 1108 16th Street, N.W., Washington, D.C., Planned Parenthood of Metropolitan Washington, D.C., Inc., 2811 Pennsylvania Avenue, S.E., Washington, D.C.

ATTACHMENT A

ATTACHMENT B

AFFIDAVIT OF RANDALL A. TERRY

I, RANDALL A. TERRY, being first duly sworn state

1. I am a defendant in the above-captioned matter.

2. I am resident of Binghampton, New York, although I currently reside in the Fulton County Correctional and Rehabilitation Facility, Fulton County, Georgia.

3. Nothing could be further from the truth than a claim that I act with an invidiously discriminatory animus toward women, generally, or toward abortion-bound women, particularly. Jesus did not condemn the woman at the well. As a follower of Jesus Christ, I do not have the luxury of condemning others who share my common human frailties.

4. My abortion-related protest activities have nothing to do with hatred for any woman or a desire to treat any woman or grouping of woman in a discriminatory fashion. Rather, rescue is a form of repentance for my personal failures that led to abortion on demand in this country, and that permit abortion on demand to continue in this country.

5. The common name for the religiously motivated social movement about which Plaintiffs are complaining, Rescue, is taken from the Holy Bible, the Book of Proverbs 24:11-12, wherein the Lord God commands us to rescue those who are being dragged to their death.

6. When I have participated in abortuary blockades in the past, I have never acted in a way fairly described as discriminatory toward women or abortion-bound women. Instead, while the child-killing facility is blockaded, no one is permitted to enter past the rescuers. Neither women nor men. Doctors, nurses, patients, staff, abortion-bound women, families of abortion-bound women — all are prevented from entering the abortuary while the rescue is in progress. This approach may be many things but it is not discriminatory in any respect complained of by the businessmen-abortionists and the other Plaintiffs in this case.

7. Because I have been accused of acting in an invidiously discriminatory fashion toward women, generally, and toward abortion-bound women, in particular, I believe the Court should be apprised of the truth testified to by my life:

a. I am married and a father of daughters; I love these very important women in my life and have never been accused of treating them in an invidiously discriminatory fashion;

b. Together with my wife, I founded and ran The Crisis Pregnancy Center, in Binghampton, New York. When it became necessary to turn management of that charitable endeavor over to another, I was responsible for placing the Center's management in the hands of a woman, who was the best person for the task. Neither in running that Center, or in the process of turning control over to another, have I been accused of acting in an invidiously discriminatory manner toward women or abortion-bound women.

c. Operation Rescue, of Binghampton, New York, employs several women, including in the key position of press secretary. I was responsible for the hiring for these positions. In my personnel relationships at Operation Rescue, I have never been accused of acting in an invidiously discriminatory manner toward women or abortion-bound women.

d. In the Church of which I am member, I am an elder and their are presently women deacons. In my church relationships, I have never been accused of acting in an invidiously discriminatory manner toward women or abortion-bound women.

8. My commitment to helping abortion-bound women and my concern for them has taken many forms. I helped to organize a system of shepherding homes where unwed mothers could live when turned out of their family homes. I have transported women to the medical appointments. I even took one girl who changed her mind about aborting her baby to the hospital for her delivery, and I stayed by her side until it was time for her cesarean delivery. I have spent hours upon hours counseling pregnant women, even at home during times I should have spent with my family.

FURTHER YOUR AFFIANT SAYETH NOT.

/s/ Randall A. Terry Randall A. Terry

STATE OF GEORGIA

FULTON COUNTY

Personally appeared before me and being first duly sworn Randall A. Terry subscribed the foregoing affidavit on this the 5th day of November, 1989.

[Signature] NOTARY PUBLIC My commission expires: Notary Public, Cobb County, Georgia My Commission Expires Jan. 26, 1991

NOTES

[*] Admitted to practice before bar of State of New York and United States District Court for Southern District of New York.

[**] Admitted Pro Hac Vice.