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PRO-CHOICE NETWORK OF WESTERN NEW YORK v. PROJECT

February 14, 1992

PRO-CHOICE NETWORK OF WESTERN NEW YORK; BUFFALO GYN WOMENSERVICES, P.C.; ERIE MEDICAL CENTER; PAUL J. DAVIS, M.D., P.C.; SHALOM PRESS, M.D.; BARNETT SLEPIAN, M.D.; MORRIS WORTMAN, M.D.; HIGHLAND OBSTETRICAL GROUP; ALEXANDER WOMEN'S GROUP, Plaintiffs,
v.
PROJECT RESCUE WESTERN NEW YORK; OPERATION RESCUE; PROJECT LIFE OF ROCHESTER; REV. PAUL SCHENCK; REV. JAMES L. EVANS; REV. TED CADWALLADER; DWIGHT SAUNDERS; DAVID ANDERSON; JEFFREY BARAN; BRIAN BAYLEY; BONNIE BEHN; RONALD BREYMEIER; GILBERT CERTO; SCOTT CHADSEY; KIM DAY; CONSTANCE DEBO; MARK DENT; WAYNE DENT; PAUL DIEMERT; JOAN GIANGRECO; DELORES GLASER; CARMELINA GOLBA, KEVIN GOLBA; LINDA HALL; NANCY HALL; THOMAS HALL; REV. DANIEL HAMLIN; JAMES HANDYSIDE; PAMELA HUFFNAGLE; DONNA JOHANNS; ERIC JOHNS; NEAL KOCHIS; PAULETTE LIKOUDIS; CHARGES MCGUIRE; CHRISTOPHER MORROW; ANNEMARIE NICE; NICHOLAS PUKALO; CARLA RAINERO; THOMAS RILEY; PATRICIA OSTRANDER; LINDA ROSS; DAVID SMITH; LINDA SMITH; MARK STERLACE; JOYCE STRIGEL; JOHN THOMANN; JOHN TOMASELLO; PAUL WALDMILLER, JR.; NANCY WALKER; LEONARD WINTER; HORACE WOLCOTT; GERALD CRAWFORD; DAVID LONG; JOHN DOE(S) AND JANE DOE(S), the last two being fictitious names, the real names of said defendants being presently unknown to plaintiffs, said fictitious names being intended to designate organizations or persons who are members of defendant organizations, and others acting in concert with any of the defendants who are engaging in, or intend to engage in, the conduct complained of herein. Defendants.


ARCARA


The opinion of the court was delivered by: RICHARD J. ARCARA

I.

 INTRODUCTION

 Presently before the Court is plaintiffs' motion for a preliminary injunction, pursuant to Fed. R. Civ. P. 65(a), enjoining defendants from engaging in an allegedly illegal effort to prevent women from obtaining abortions and other gynecological and family planning services in a number of medical and family planning clinics located throughout the Western New York area. An evidentiary hearing was held over the course of several days from March 6, 1991 to April 1, 1991. The parties were then given an opportunity to brief and argue their respective positions. The Court has also considered evidence adduced at the contempt hearings of defendants Nancy Walker, Bonnie Behn, Carla Rainero, Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue Western New York ("Project Rescue"). Each of these defendants was charged with violating the Court's temporary restraining order ("TRO") in this case.

 As part of their response to the motion for a preliminary injunction, defendants have moved the Court to reconsider its Decision and Order dated October 29, 1990, denying defendants' motion to dismiss the action pursuant to the abstention doctrine.

 After considering the evidence adduced at the preliminary injunction and contempt hearings, reviewing the submissions of the parties, and hearing argument from counsel, the Court grants plaintiffs' motion for a preliminary injunction. The preliminary injunction is attached as an Appendix to this Decision and shall also be filed under separate cover. Further, the Court has reconsidered its Decision and Order dated October 29, 1990, and denies defendants' motion to dismiss the action based on the abstention doctrine. The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 II.

 BACKGROUND

 Plaintiffs, Buffalo GYN Womenservices, Erie Medical Center, Paul Davis M.D., Shalom Press M.D., Barnett Slepian M.D., Morris Wortman M.D., Highland Obstetrical Group and Alexander Women's Group, are health care providers located in the Western New York area. They offer family planning services, abortion services and gynecological services at their health care facilities. Plaintiff Pro-Choice Network of Western New York is a not-for-profit corporation based in Buffalo, New York. Its primary goal is to maintain legal and safe access to family planning and abortion services in the Western New York area. It also organizes some of its members to serve as escorts for patients seeking access to plaintiff health care providers' facilities.

 Defendants include three organizations, Project Rescue Western New York, Operation Rescue and Project Life of Rochester, and fifty individuals opposed to abortion and dedicated to the "pro-life" movement. *fn1" Plaintiffs allege that defendants have been engaged in a consistent pattern of illegal conduct at plaintiffs' health care facilities including blockading access to and egress from their facilities, trespassing, and harassment and intimidation of patients and staff.

 On September 24, 1990, plaintiffs commenced this action by filing a Complaint asserting seven causes of action. The first cause of action asserts claims under 42 U.S.C. § 1985(3), based on an alleged conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and the equal privileges and immunities of national citizenship. More specifically, plaintiffs allege that defendants have conspired to infringe the constitutional rights of women seeking abortion and family planning services to travel and to choose to have an abortion. *fn2" The Court has subject matter jurisdiction over this cause of action pursuant to 28 U.S.C. §§ 1331, 1343. The remaining six causes of action assert claims based on New York State law. They include: (1) violation of N.Y. Civ. Rights Law § 40-c, and N.Y. Exec. Law § 296; (2) tortious interference with business; (3) trespass; (4) intentional infliction of emotional harm; (5) tortious harassment; and (6) false imprisonment. *fn3" These causes of action fall under the Court's supplemental jurisdiction. Along with declaratory and injunctive relief, plaintiffs seek compensatory and punitive damages.

 Immediately upon filing their Complaint on September 24, 1990, plaintiffs moved for a TRO, pursuant to Rule 65(b), to enjoin a "blockade" that defendants had announced for September 28, 1990. The location of the "blockade" was to be kept secret until the morning it was scheduled to occur. On September 26, 1990, the Court conducted a hearing and heard oral argument on the application for a TRO. On September 27, 1990, after hearing further argument from plaintiffs' counsel and some of the named defendants, and after reviewing the Complaint and supporting affidavits, the Court, following New York State NOW v. Terry, 704 F. Supp. 1247 (S.D.N.Y.), aff'd, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495 U.S. 947, 109 L. Ed. 2d 532, 110 S. Ct. 2206 (1990), issued a TRO enjoining defendants from conducting any "blockade" of plaintiffs' medical facilities, and from harassing patients and staff entering or exiting the facilities.

 Defendants complied with the TRO by holding a peaceful demonstration, rather than a "blockade," on September 28, 1990. The Court then scheduled a hearing for October 4, 1990, in order to determine whether the TRO should be converted into a preliminary injunction pursuant to Rule 65. At the October 4, 1990 hearing, plaintiffs established service on nearly all defendants, and James Duane, Esq. appeared on defendants' behalf. Mr. Duane alerted the Court that it was defendants' intention to file a motion to either dismiss or stay the action pursuant to the abstention doctrine. The Court then put the parties on a briefing schedule and issued an order extending the TRO until the motion was decided.

 On October 22, 1990, during the pendency of defendants' motion to dismiss, plaintiffs filed motions for civil contempt against defendants Bonnie Behn and Carla Rainero alleging that they violated the Court's TRO on October 20, 1990. On December 6, 1990, plaintiffs filed a motion for civil contempt against defendant Nancy Walker alleging that she violated the TRO on November 29 and December 1, 1990. On December 14, 1990, plaintiffs filed another motion for civil contempt against Walker alleging that she violated the TRO on December 8, 1990. On March 26, 1991, plaintiffs filed motions for civil contempt against defendants Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue alleging that they violated the TRO on December 29, 1990. *fn4"

 During the months of December, 1990 and January, 1991, the parties, with the assistance of the Court, attempted unsuccessfully to settle this action. A hearing on the contempt motion against Nancy Walker was then held from February 6, 1991 to February 14, 1991. Then, as stated earlier, a preliminary injunction hearing was held from March 6, 1991 to April 1, 1991. Subsequently, a hearing on the contempt motions against Bonnie Behn and Carla Rainero was held from June 18, 1991 to July 12, 1991. Finally, a hearing on the contempt motions against Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue was held from October 15, 1991 to January 30, 1992.

 III.

 FINDINGS OF FACT

 It is indisputable that all defendants in this case share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization. To achieve these goals, individual defendants have agreed and combined with one another and with the organizational defendants to coordinate, organize and participate in "rescue" demonstrations at abortion clinics located throughout Western New York. While these "rescue" demonstrations are usually peaceful in nature, they often become emotionally charged encounters between demonstrators, patients and patient escorts.

 During the hearings, several defendants insisted that Project Rescue is not an entity subject to being enjoined or held in contempt. The Court finds that, although not organized in corporate or partnership form, Project Rescue produces and distributes literature that encourages participants to gather in front of abortion clinics and block or impede access to them, has official spokespersons and designated leaders who organize and plan its activities, possesses a mailing address, engages in correspondence, has an active telephone "hotline", seeks donations in its name, and reimburses its members for expenses. Thus, Project Rescue possesses adequate characteristics of a legal entity to be enjoined or held in contempt.

 There are three types of "rescue" demonstrations at issue in this case: (1) physically "blockading" health care facilities in order to prevent women seeking abortions and medical personnel from entering or exiting the facilities; (2) constructively "blockading" the clinics by demonstrating and picketing in a loud and disruptive manner outside the health care facilities, and by harassing patients and staff trying to enter such facilities; and (3) "sidewalk counseling" of patients entering the clinic. By disrupting and "blockading" family planning and abortion clinics, and conducting "sidewalk counseling," defendants and their followers hope to: (1) prevent abortions; (2) dissuade women from seeking abortion services; and (3) impress upon the public the moral righteousness of their "pro-life" views.

 A.

 Blockading

 The first type of "rescue" demonstration involves physically "blockading" access to and egress from the plaintiffs' clinics. This type of "rescue" demonstration is usually well organized and involves a large number of "pro-life" demonstrators. During these "blockades," the demonstrators trespass on the clinic property and sit or lay in the entrances of the clinic in an attempt to block access to and egress from the clinic. The demonstrators often lock arms or chain themselves together in order to make it more difficult for police to remove them. The plaintiff health care providers have been victims of these "blockades" on numerous occasions. On many of those occasions, the operation of the targeted facility was effectively stopped or significantly hampered. This physical "blockade" type of "rescue" demonstration was the type scheduled by defendants for September 28, 1990, and was the impetus behind the Court's TRO. *fn5"

 B.

 Constructive Blockade

 Besides physically "blockading" the clinics, defendants also constructively "blockade" them by demonstrating and picketing around the entrances of the clinics, and by harassing patients and staff entering and leaving the clinics. The constructive "blockade" has the same purpose as the physical "blockade," i.e., to prevent or dissuade patients from entering the clinic. However, instead of physically blocking patient access to the clinics, defendants constructively "blockade" the clinics by forcing patients to run a gauntlet of harassment and intimidation in the hope that the patients will turn away before entering.

 On days when abortions are scheduled to be performed, defendants and others acting in concert with them under the auspices of the organizational defendants, picket and demonstrate in and around plaintiffs' health care facilities. Demonstrators frequently and routinely congregate in or near the driveway entrances to the facility parking lots in order to impede and obstruct access to the facilities. The presence of numerous demonstrators in the driveway entrances intimidates and impedes the drivers of cars seeking access to the parking lots of the facilities and creates a danger to both the occupants of the cars and the demonstrators themselves. The demonstrators also make loud and disruptive noises and chant persistently. On some occasions, the drivers and occupants of the cars trying to enter the clinic parking lots are so intimidated or confused by the demonstrators that they leave the area thereby causing those occupants seeking health care to suffer a delay in obtaining such care.

 At tines, demonstrators yell at patients, patient escorts and medical staff entering and leaving the health care facilities. The demonstrators also crowd around people trying to enter the facilities in an intimidating and obstructing manner, and grab, push and shove the patients, patient escorts and staff. This activity causes stress and sometimes even physical injury to the patients, patient escorts and medical staff, and disrupts the atmosphere necessary for rendering safe and efficacious health care.

 C.

 "Sidewalk Counseling"

 During these encounters, "sidewalk counselors" often become angry and frustrated when patients and patient escorts persist in entering the clinics. *fn6" The "counselors" then turn to harassing, badgering, intimidating and yelling at the patients and patient escorts in order to dissuade them from entering. They continue to do so even after the patients signal their desire to be left alone. The "sidewalk counselors" often crowd around patients, invade their personal space and raise their voices to a loud and disturbing level. At times, the voices of "sidewalk counselors" can be heard inside the health care facilities, thereby disturbing the quiet environment necessary for providing safe and efficacious health care. Some "counselors" have even used bullhorns to reach patients who have already entered the clinics.

 The "sidewalk counselors" are comprised of a small group of dedicated "pro-life" activists who station themselves in front of plaintiffs' medical facilities on a regular basis. Many of the "sidewalk counselors" and other defendants have been arrested on more than one occasion for harassment, yet persist in harassing and intimidating patients, patient escorts and medical staff. Defendant Project Rescue offers training in the technique of "sidewalk counseling" and organizes the activities of "sidewalk counselors" by designating times and locations for "counseling," designating site captains for such "counseling," and directing "counselors" to keep a log of their activities and send information about their "counseling" to a designated member of the organization. Project Rescue has also reimbursed "sidewalk counselors" for their expenses.

 Besides abortions, plaintiff health care facilities provide women with a variety of other medical and family planning services. Because information about patients is kept strictly confidential, the "sidewalk counselors" do not know which patients entering the facilities are there for an abortion and which are there to obtain some other medical or family planning service. The "sidewalk counselors" target younger-looking women because they are the ones most likely to be seeking an abortion. They also target cars that arrive at the facilities with out-of-state license plates because many of the patients coming to area clinics are from nearby states, especially Pennsylvania and Ohio, and from Canada. There is no way, however, for the "sidewalk counselors" to know for sure whether a woman entering the clinic is even seeking an abortion.

 During "rescue" activities, defendants regularly use video cameras. Defendants insist that the purpose of the cameras is to record the actions of the "sidewalk counselors" so that the videotapes can be used to defend the "counselors" against unfounded harassment charges. However, the evidence adduced at the hearings clearly indicates that, instead of using cameras for defensive purposes, defendants employ them as offensive weapons to intimidate patients seeking abortions. *fn7"

 Instead, the evidence clearly shows that defendants use cameras as offensive weapons to harass and intimidate patients entering the clinics. Defendants have even pointed the cameras directly into the faces of patients seeking access to the clinics. They have also videotaped patient vehicles and their license plates as they enter the medical facilities. Defendants are well aware that women seeking abortions, especially younger women, are often terrified at the prospect of anyone, especially family members, finding out that they are having an abortion, and that the presence of cameras increases patients' fear that their identities might be revealed.

 Thus, in view of all the evidence, it is reasonable to infer that defendants use cameras not as a defensive measure against unfounded harassment charges, but as offensive weapons to intimidate and embarrass patients into foregoing their scheduled appointments.

 D.

 Response of Local Law Enforcement

 Local law enforcement has been unable to respond effectively to plaintiffs' complaints about "pro-life" demonstrators harassing patients and blocking access to the clinics. Defendants participate in their "rescue" activities on a continual basis and the local police do not have the resources necessary to monitor the situation constantly. Often times when they respond to a complaint, the demonstrators simply disperse, only to return later when the police depart. Even when police arrest a "pro-life" demonstrator for harassing a patient, successful prosecution is often difficult because the patient is reluctant to testify or cooperate out of fear that her identity might be made public. Furthermore, the record shows that arrest and conviction pursuant to local laws has not deterred defendants from repeatedly engaging in their illegal pattern of activity.

 The large scale "blockades" pose a particular problem for police. The time and location of "blockades" are kept secret from the police so that they will be delayed in responding. Local law enforcement's response to large scale "blockades" requires a substantial commitment of police resources. Testimony adduced at the hearings also indicates that defendants have attempted to strike "deals" with the police as to the conditions under which they will cease their illegal activity, i.e., defendants agree to cease "blockading" only if the clinic is closed down for the rest of the day.

 In addition, defendants have attempted to hinder and interfere with local law enforcement by harassing those who invoke legal process against them. Local deputy police chief Samuel Camilleri testified that he and his fellow officers have been the object of harassment--both verbally and by mail--by the demonstrators. Chief Camilleri indicated that this harassment made it more difficult for him to do his job. Similar harassment has been directed against people who have testified against the demonstrators in local criminal court proceedings.

 E.

 The Health Risks to Women Caused by Defendants' Activities

 Women who have been the target of "sidewalk counseling" or other "rescue" demonstrations usually enter the medical facilities visibly shaken and severely distressed. Several of the plaintiff health care providers testified that, for most women, the decision to undergo an abortion is already difficult and stressful. Plaintiffs presented uncontradicted testimony that the risks associated with an abortion increase if the patient suffers from additional stress and anxiety. Increased stress and anxiety can cause patients to: (1) have elevated blood pressure; (2) hyperventilate; (3) require sedation; or (4) require special counseling and attention before they are able to obtain health care. Patients may become so agitated that they are unable to lie still in the operating room thereby increasing the risks associated with surgery.

 Often times, patients are too upset to undergo the medical procedures scheduled for that day and must reschedule the procedure, though there is no guarantee that they will not encounter the demonstrators again upon returning. This delay can increase the risks associated with an abortion. For example, the delay may move the pregnancy from the first trimester to the second trimester during which the risks associated with the procedure increase. Other women who are seeking a post-abortion check-up might delay their appointment or simply cancel it altogether, thereby enhancing the possibility of complications. For some women who elect to undergo an abortion, clinic medical personnel prescribe and insert a device known as a pre-abortion laminaria to achieve cervical dilation. In these instances, timely removal of the laminaria is necessary to avoid infection, bleeding and other potentially serious complications. If a woman returning to have the laminaria removed finds that her access to the clinic entrance is blocked or impeded, or if she becomes so distressed by the "sidewalk counselors" that she cannot undergo surgery, the above-mentioned complications may result.

 For some women, the option to reschedule their appointment is not readily available. As stated earlier, many of the women seeking abortions in this area come from out-of-state and cannot readily reschedule their appointments if they are prevented or deterred by defendants' conduct from obtaining the abortion on the scheduled day.

 The presence of video cameras is especially distressing to patients seeking abortions. The use of video cameras by defendants often makes patients hysterical or severely upset, thereby causing a delay in their readiness for prompt medical attention. Furthermore, defendants' use of the video cameras prolongs the patients' stress and anxiety as they worry that their identity may be obtained by defendants and revealed to others, such as family members.

 IV.

 CONCLUSIONS OF LAW

 A. Standing

 In Terry, the Second Circuit held that health care providers have independent standing to assert the rights of their patients to travel freely and to obtain abortion services. The court reasoned that a patient's "enjoyment of those rights is inextricably bound up with the activity the litigant wishes to pursue," and thus, the court could be "assured that the clinics represent the rights and interests of the women seeking their assistance." Terry, 886 F.2d at 1348 (citations ...


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