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CARR v. AXELROD

July 15, 1992

JOSEPH CARR, in his official capacity as President of Northern Westchester Putnam Assistance to Mother and Unborn Child, Inc., Plaintiff, against DAVID AXELROD, M.D., in his capacity as Commissioner of Health of the State of New York, and ROBERT ABRAMS, Attorney General of the State of New York, Defendants. The People of the State of New York, by ROBERT ABRAMS, Attorney General of the State of New York, Plaintiff, -against- NORTHERN WESTCHESTER PUTNAM ASSISTANCE TO MOTHER AND UNBORN CHILD, INC., d/b/a ALTERNATIVE PREGNANCY CENTER, and JOSEPH CARR, Individually and as President of NORTHERN WESTCHESTER PUTNAM ASSISTANCE TO MOTHER AND UNBORN CHILD, INC., Defendants.

GOETTEL


The opinion of the court was delivered by: GERARD L. GOETTEL

GOETTEL, D.J.:

 While Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), has been reaffirmed, the effect of the Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 120 L. Ed. 2d 674, U.S. , 60 U.S.L.W. 4795, 112 S. Ct. 2791 (June 29, 1992), has been simply to shift the battlegrounds for the abortion wars to the states who are now vested with the limited power to regulate abortions. A novel front has opened up in New York, a state which has relatively few restrictions upon abortion, where the skirmish concerns the application of consumer protection laws to the creative attempts of anti-abortion groups to reach women seeking abortions. A state enforcement proceeding, removed to federal court, and a federal action, filed to enjoin that state proceeding, have combined to create a question which goes to the very heart of the federal court's responsibility to decide federal questions.

 I. BACKGROUND

 On January 14, 1992, the Attorney General of the State of New York filed suit in the state supreme court against the Alternative Pregnancy Center ["APC"] and Joseph Carr, President of the Northern Westchester Putnam Assistance to Mother and Unborn Child, Inc., alleging that the defendants had violated New York laws concerning the practice of medicine, operation of clinical laboratories, and consumer protection. The APC is run by an anti-abortion organization. Its goal is to counsel women considering abortions and persuade them to carry the pregnancy to term. The Center advertises its services in local papers and in phone directories where it can be found under the headings Abortion Information Services, Health Care Services, and Birth Control Information Centers.

 A woman who believes she is pregnant can contact APC. She will be invited in for a pregnancy test and counseling. These services are offered free of charge. The client provides information about her medical history and current symptoms and provides urine for a pregnancy test. Allegedly, she is then shown pictures and diagrams concerning fetal development and a slide presentation which depicts failed abortions. According to APC, the thrust of the presentations is to show the risks and dangers of abortion as contrasted with the safe alternatives, i.e., full-term pregnancy. The State's complaint alleges that the clients are also given a lecture against abortion based on morality and that the atmosphere of all of this activity is coercive and disturbing.

 On November 27, 1991, the Attorney General, as required by state statute, mailed a "Notice of Proposed Litigation" to APC charging it with a variety of allegedly fraudulent and deceptive practices in connection with their operation of the pregnancy center. In response, APC's attorney contacted Assistant Attorney General G. Nicholas Garin and requested a chance to discuss the allegations made by the State. A meeting took place on December 17, 1991 and at its conclusion, Garin was told he would be advised of APC's position. APC responded, by letter, on December 31, 1991, agreeing to alter some of its practices as suggested by the Attorney General's office but refused to change the name of its organization or the content of its advertising, and declined to pay any civil penalties. APC's letter also specifically reserved APC's right to bring suit should the discussions fail to produce a satisfactory resolution of this dispute.

 On January 14, 1992, the Attorney General's office served APC and Mr. Carr with a summons, a complaint, and a motion for preliminary injunction. That same day, Joseph Carr filed suit in federal court against New York's Attorney General and Commissioner of Health, alleging that his civil rights were violated by the State's enforcement suit. On January 22, 1992, before the preliminary injunction motion was heard in state court, Carr and APC filed a petition of removal pursuant to 28 U.S.C. § 1443(1), removing the state action to federal court.

 Several motions have been presented for our consideration. We will address two: the State's motion to remand the enforcement proceeding and the State's motion to dismiss the federal suit.

 II. REMAND OF THE STATE ENFORCEMENT PROCEEDING

 Section § 1443(1) of Title 28 allows removal by the defendant to the district court of any state action "against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States." 28 U.S.C. § 1443(1). After an enforcement proceeding was filed by New York state against APC and Carr, defendants removed that case to federal court. People v. Northern Westchester Putnam Assistance to Mother and Unborn Child, Inc., 92 Civ. 0509. In their removal petition, the defendants contend that the State knew that they intended to file a federal suit alleging that their first amendment rights were violated by the enforcement of unconstitutional state laws. Defendants' position is that they have a right to try their federal claims in a federal court under 42 U.S.C. § 1985(c). This right, they maintain, was denied by the commencement of the state court action. APC and Carr suggest that the timing of the state's filing is so suspiciously close to the filing of Carr's case in federal court as to lead to the inference that the State case was filed only to preclude Carr's prosecution of a federal civil rights case. Notably, the defendants' theory of deprivation is wholly grounded on the assumption that the federal court must necessarily abstain from hearing the merits of Carr's case during the pendency of the state proceeding. Though we feel it is inappropriate for any plaintiff to base its legal argument on a guess about a decision yet to be rendered by the court, as will be seen later, abstention in the federal case is the proper step by this court.

 An enforcement proceeding may be removed pursuant to 42 U.S.C. § 1443(1) only if the defendants can show that the right upon which they rely is a right under a law providing for equal civil rights and that this right will be denied or cannot be enforced in the courts of New York. Georgia v. Rachel, 384 U.S. 780, 788, 16 L. Ed. 2d 925, 86 S. Ct. 1783 (1966). Carr and APC assert that 42 U.S.C. § 1985(3) protects their right to a federal forum in which to try their federal claims.

 In order to raise a claim under § 1985(3), the defendants must show that the State 1) engaged in a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the laws, or the equal privileges and immunities under the laws; 3) acted in furtherance of the conspiracy; and 4) deprived such person or class of persons the exercise of any right or privilege of a citizen of the United States. New York State National organization for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S. Ct. 2206, 109 L. Ed. 2d 532 (1990). We will assume, without deciding this issue, that Carr and APC belong to a class within the ambit of § 1985(3) by virtue of their philosophical positions concerning abortion.

 The defendants' claim fails because they cannot show that they have been deprived of a "right under a law providing for equal civil rights." 28 U.S.C. § 1443(1). They focus their attention on the "privileges and immunities" clause of § 1985(3) and argue that one of the privileges and immunities of United States citizenship is the right to obtain a federal forum for federal questions they wish to assert. There is simply no civil right to have a federal claim heard by a federal court unless exclusive jurisdiction over a federal cause of action has been vested in the federal courts. Where the federal courts do not have exclusive jurisdiction, due process requires only that some court, state or federal, be available to hear claims. Battaglia v. General Motors, 169 F.2d 254, 257 (2d Cir.), cert. denied, 335 U.S. 887, 93 L. Ed. 425, 69 S. Ct. 236 (1948). The privileges and immunities of national citizenship do not, as plaintiff contends, encompass the right to have a federal question heard in a federal forum. *fn1" Moreover, there are no federal statutes ...


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