NEAL P. McCURN, S.J.
MEMORANDUM-DECISION AND ORDER
This action is one of the countless lawsuits which have been filed across the country as the national debate regarding abortion continues to rage. It pits Upper Hudson Planned Parenthood ("UHPP"), a provider of women's reproductive health care services, including first trimester abortions,
against antiabortion activists. The primary legal theory advanced by UHPP is the same one which numerous other beleaguered abortion providers have resorted to as peaceful antiabortion demonstrators have become increasingly violent in their tactics.
As a means of preventing antiabortion activists from, among other things, engaging in unlawful conduct such as trespassing, these providers have turned to 42 U.S.C. § 1985(3),
commonly referred to as the Ku Klux Klan Act.
The thrust of UHPP's § 1985(3) argument is that the defendant protestors have entered into a conspiracy to deprive UHPP's patients of the following asserted rights: to choose an abortion; to travel interstate and to travel intrastate. In addition to this federal cause of action, in its amended complaint UHPP asserts eight other state law based causes of action.
UHPP's three facilities have not been the target of antiabortion protests in the same way as have other similar clinics in, for example, Buffalo, New York
and Wichita, Kansas,
where Operation Rescue members and others have traveled from around the country to participate in antiabortion activities at clinics in those communities. Nevertheless, as a provider of abortion services, UHPP has not escaped the wrath of antiabortion activists in the Capitol District. Although UHPP had been the target of some antiabortion protests prior to 1988, it was not until December 8, 1988, that UHPP experienced the full impact of such protests. On that date, UHPP's Hudson clinic was the site of a blockade by antiabortion activists, including many of the defendants named herein. UHPP's Executive Director, Ruth Klepper, described it as a "mob scene." The clinic was surrounded by protestors; they were also on the curb and in the parking lot. Some of the protestors were sitting and others were carrying signs. In addition to thee descriptions offered by Ms. Klepper, photographs in the record taken the day of this incident show approximately forty protestors, locking arms, three persons deep, completely blocking the door to the Hudson clinic. Plaintiff's exhs. 17 and 18. Overwhelmed by the number of protestors, UHPP's Hudson clinic did not open on schedule that day because access could not be gained to the clinic. Instead, the clinic opened later that day between 2:30 and 3:00 p.m.
Approximately three and a half months later, on March 24, 1989, this time at UHPP's Albany clinic, antiabortion protestors, again many of the defendants, engaged in a "rescue" as that term is commonly used in the "pro-life" community. Ms. Klepper observed a scene of "complete chaos," with far more protestors present than had been at Hudson earlier. She estimated that altogether there were several hundred protestors - many of them singing and chanting. These protestors effectively blocked access to the Albany clinic via the main entrance by standing, tightly grouped, en masse, in front of the door. See, e.g., Plaintiff's exh. 82Q. Some of the protestors employed passive resistance techniques when approached by the police. See Plaintiff's exhs. 82D and 82 N. According to Ms. Klepper, however, Albany area police did remain near the rear door of the clinic all day, which is not usually used for patient access, to keep it clear of protestors. A few of the defendants were arrested in connection with their activities at Albany on this date.
For reasons unknown to the court, rather than promptly taking some form of legal action in the months immediately following those two rescues, UHPP waited until nearly 18 months after the second rescue - October 9, 1990 - to file this action. Named as defendants in this lawsuit are certain individuals whom UHPP believes to be actively involved in the Capitol District antiabortion movement, as well as several entities which allegedly sponsor antiabortion demonstrations outside UHPP's three clinics. Just after the commencement of this lawsuit, UHPP sought a temporary restraining order seeking almost identical relief to that sought on this application for a preliminary injunction. The court denied that application because, inter alia, there was no showing of irreparable harm. After that, this case proceeded in the usual fashion, although, as will be seen, with more than the usual amount of court intervention along the way. Finally, from August 25 through 28, 1992 the court conducted an evidentiary hearing to determine whether UHPP would be entitled to a preliminary injunction.
Following those four days of proof, the court reserved decision and directed the parties to file post-hearing memoranda of law. Before the court rendered its decision, on January 13, 1993, the Supreme Court decided Bray, which significantly impacts the present case. The court therefore required the parties to submit supplemental memoranda of law as to the status of this case after Bray, and that was done. The court has now had an opportunity to carefully examine the applicable law (which, as will be seen, was not an easy task given the state of flux of § 1985(3) jurisprudence
), and to consider the numerous exhibits, including photographs and videotapes taken at UHPP clinics when defendant protestors were present, which were proffered at the preliminary injunction hearing. Following constitutes the court's decision in this regard.
Before determining whether UHPP is entitled to a preliminary injunction, there are several critical issues which the court must resolve. First, the court must decide whether, as the defendants urge, after the Supreme Court's decision in Bray, supra, UHPP's § 1985(3) cause of action should be dismissed. If that issue is resolved unfavorably to UHPP, then the issue becomes whether the court should exercise pendent jurisdiction
over UHPP's remaining eight state law based causes of action. Only after those two issues are decided will the court be in a position to decide whether UHPP is entitled to the injunctive relief which it is seeking.
I. Section 1985(3)
As the Second Circuit aptly stated, on January 13, 1993, the day the Supreme Court decided Bray, supra, "the judicial landscape of § 1985(3) was radically altered." Town of West Hartford v. Operation Rescue, 991 F.2d 1039, 1045 (2d Cir. 1993). The impetus for Bray was an announcement by the by now well-known antiabortion organization, Operation Rescue, that it planned to demonstrate at abortion clinics in the Washington, D.C. area. The plaintiffs, nine women's medical facilities, sought injunctive relief to restrain Operation Rescue, among others, from engaging in demonstrations which where obstructive (i.e. blockading and/or rescuing) and trespassory in nature. The district court granted the plaintiffs' application for a permanent injunction. In so doing, the district court found that plaintiffs' members and patients "constitute a sub-set of a gender-based class," that is "women seeking abortions," thus satisfying the requirement of a "class-based discriminatory animus" established in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). National Organization for Women v. Operation Rescue, 726 F. Supp. 1483, 1492 (E.D.Va. 1989) ("Bray I").11 Further, relying in part upon testimony that the plaintiff clinics serve out-of-state patients, the district court further found that the conspiracy there deprived women seeking abortions and related medical and counseling services of the constitutionally protected right to travel interstate. Id. at 1493. On appeal the Fourth Circuit affirmed. National Organization for Women v. Operation Rescue, 914 F.2d 582 (4th Cir. 1990) ("Bray II"). The Supreme Court disagreed, however, and reversed on several grounds.
The first ground pertained to the lower court's interpretation of the "class-based invidiously discriminatory animus" requirement of § 1985(3). Reviewing Griffin,12 the Supreme Court in Bray unequivocally held that, "'Women seeking abortion'" are not a qualifying class" for purposes of § 1985(3). 113 S. Ct. at 759. Rejecting the view that opposition to abortion reflects an animus against women, the Court expressly declined to decide however whether, as the clinics argued, women in general would qualify as a class under § 1985(3). Id. The Court went on to opine though:
We do not think that that the "animus" requirement can be met only by maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women. It does demand, however, at least a purpose that focuses upon women by reason of their sex - for example (to use an illustration of assertedly benign discrimination), the purpose of "saving" women because they are women from a combative, aggressive profession such as the practice of law. The record in this case does not indicate that petitioners' demonstrations are motivated by a purpose (malevolent or benign) directed specifically at women as a class; to the contrary, the District Court found that petitioners define their "rescue" not with reference to women, but as physical intervention "'between abortionists and the innocent victims,'" and that "all [petitioners] share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization." 726 F. Supp. at 1488. Given this record, respondents' contention that a class-based animus has been established can be true only if one of two suggested propositions is true: (1) that opposition to abortion can reasonably be presumed to reflect a sex-based intent, or (2) that intent is irrelevant, and a class-based animus can be determined solely by effect. Neither proposition is supportable.
113 S. Ct. at 759-60 (emphasis in original)
The second ground for the Bray Court's reversal was that the clinics failed to identify any "right protected against private action that [was] the object of the alleged conspiracy." Id. at 764. The Supreme Court found that even though substantial numbers of women seeking the services of the plaintiff clinics traveled interstate to do so, that was not enough to show that the defendants intended to deprive those women of the right to interstate travel. Id. at 762-63. In reaching that conclusion, the Bray Court reasoned:
Our discussion in Carpenters makes clear that it does not suffice for application of § 1985(3) that a protected right be incidentally affected. A conspiracy is not "for the purpose" of denying equal protection simply because it has an effect upon a protected right. The right must be "aimed at," 463 U.S. at 833, 103 S. Ct. at 3358 (emphasis added); its impairment must be a conscious objective of the enterprise. . . . . the "intent to deprive of a right" requirement demands that the defendant do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it. That was not shown to be the case here, and is on its face implausible. Petitioners oppose abortion, and it is irrelevant to their opposition whether the abortion is performed after interstate travel.
Id. (footnote omitted). The second reason given by the Supreme Court for holding that the clinics had failed to show a conspiracy to violate the right of interstate travel was that the demonstrators' activities did not implicate that right. Id. The Court explained that that right was not implicated under the facts presented therein because there was no "actual barrier to interstate movement;" nor was there a showing that the protestors' actions resulted in interstate travelers being treated differently than intrastate travelers. See id.
Finally, even though the district court did not rely upon a right to abortion theory to sustain the § 1985(3) cause of action, the Supreme Court reasoned that § 1985(3) "applies only to [private] conspiracies . . . 'aimed at interfering with rights . . . protected against private, as well as official, encroachment[,]" and "the right to abortion is not among them." 113 S. Ct. at 764 (quoting Carpenters, supra, 463 U.S., at 833, 103 S. Ct., at 3358).
Significantly, in addressing the elements of a § 1985(3) cause of action, the majority in Bray did so in the context of a claim brought under the first clause of that statute or what is sometimes referred to as the "deprivation" clause.
However, because it was the subject of much discussion by the dissenters, Justice Scalia, writing for five members of the Court, did discuss the second clause of § 1985(3), which is sometimes referred to as the "hindrance" or "prevention" clause.
Relying exclusively upon Bray, the defendants offer several reasons as to why UHPP's § 1985(3) claim must be dismissed.
Focusing on the retroactivity principles enunciated by the Supreme Court in James B. Beam Distilling Co. v. Georgia, 501 U.S. , 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991), the Washburn defendants argue, rather simplistically, that after Bray, UHPP's § 1985(3) cause of action is so insubstantial that the complaint must be dismissed in its entirety for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3).
The Kriss defendants take a different approach. Recognizing that the majority in Bray addressed only § 1985(3)'s deprivation clause,
the Kriss defendants argue that UHPP cannot avoid the clear mandate of Bray, which they believe is outright dismissal of the § 1985(3) claim, by now relying upon the prevention clause of that statute. More specifically, the defendants
assert that UHPP cannot, with the advantage of hindsight, avoid dismissal of its § 1985(3) cause of action based upon a purported prevention clause claim because such a claim was not alleged in the amended complaint. Next, they argue that even if the amended complaint can be read as alleging a claim under the prevention clause, such claim must fail because under Bray the class-based animus requirement essential to a deprivation clause claim applies equally to a prevention clause claim. Third, again assuming UHPP did properly assert a prevention clause claim, such claim cannot form the basis for a cause of action under § 1985(3) because, in the defendants' opinion, Bray requires more than an incidental impact on intrastate travel to support such a claim.
After Bray, UHPP is willing to concede that its § 1985(3) deprivation claim must be dismissed, but only insofar as it is based upon an interference with the right to interstate travel. Even post-Bray, UHPP maintains that it has a viable deprivation claim under § 1985(3) based upon an alleged interference with intrastate travel. UHPP is also willing to concede that Bray requires dismissal of its § 1985(3) deprivation clause claim against some but not all of the defendants. In particular, UHPP contends that as to defendants Benjamin, Crossett, Halbedel, Lawlor, Martin and Dujack, there is an admission in their answer which supplies the necessary class-based animus which the Supreme Court found lacking in Bray. Therefore, UHPP believes that it should be allowed to proceed against those defendants on a deprivation clause theory of liability. UHPP further asserts that, in any event, it still has a viable § 1985(3) cause of action against all of the defendants based upon the prevention clause because the Supreme Court in Bray did not hold that a class-based animus is a necessary element of such a claim. In addition, in what seems to be an alternative argument, although not couched in those terms, UHPP asserts that, nevertheless, a class-based animus has been established here based upon what UHPP believes are admissions of some of the defendants that their activities are directed at women.
Because there is no dispute that UHPP's § 1985(3) cause of action encompasses a deprivation claim thereunder, the court will first address the impact of Bray on that claim. The court will then move on to consider whether UHPP has also pleaded a § 1985(3) cause of action based upon the prevention clause; and, if it has, whether the present record supports such a claim after Bray. Then, finally, in this section the court will consider whether Bray mandates dismissal of this action in its entirety, as the Washburn defendants alone strongly urge.
A. "Deprivation" Clause
As just mentioned, it is UHPP's position that even in the wake of Bray, it can still maintain a § 1985(3) cause of action based upon the deprivation clause of that statute because Bray considered such a cause of action only in the context of an asserted interference with the right to interstate travel, whereas UHPP also bases this particular claim upon interference with the right to intrastate travel. The Court in Bray did not consider whether interference with intrastate, as opposed to interstate, travel can form the basis for a deprivation clause claim. Nonetheless, Bray is instructive on this issue.
Assuming arguendo that even after Bray an alleged infringement upon the right to intrastate travel could support a § 1985(3) deprivation clause claim in this setting (something about which the court now has serious reservations), this claim by UHPP still cannot survive the defendants' motion to dismiss.
The Bray Court reaffirmed the view "that it does not suffice for application of § 1985(3) that a protected right be incidentally affected." Bray, 113 S. Ct. at 762. As previously stated, the Supreme Court clearly wrote, "the right must be 'aimed at,'. . . (emphasis added); its impairment must be a conscious objective of the enterprise." Id. (quoting Carpenters, 463 U.S., at 833, 103 S. Ct., at 3358). There has been no showing in the record that any of these defendants acted even "in part" for the purpose of interfering with the right of UHPP's patients to travel intrastate. Even the most liberal reading of the record in this case, cannot support a finding that the "conscious objective" of these defendants was to impair the right of UHPP's patients to travel intrastate. See id.
When specifically asked at the hearing, the defendants uniformly and repeatedly stated that the purpose of their activities at UHPP clinics was to "save babies," or to give life (i.e. to persuade women not to have abortions). For example, Michael Schweigert, president of the defendant Citizens Concerned for Human Life ("CCHL") since 1988, testified that the primary purpose of CCHL pickets or demonstrations was to create a "pro-life" presence at UHPP's facilities. In his testimony, Mr. Schewigert further described the purpose of these antiabortion activities in terms of giving life; but in what seems to the court to be rather twisted logic, he disavowed that the purpose was to discourage women from giving birth. In any event, other defendants testified along the same lines. Margaret-Mary Crosset, for example, echoed this common theme, testifying that she too engaged in antiabortion protests motivated by her desire to "save babies." Thus, because there was a complete lack of proof that the defendants acted even in part to deprive UHPP's patients of the right to intrastate travel, the court concludes that after Bray, UHPP is not entitled to maintain a § 1985(3) deprivation clause claim premised upon an alleged interference with that asserted right. Indeed, in the present record there was not even a suggestion by any of the defendants that they were aware of a possible deprivation of the right to intrastate travel. As the Supreme Court plainly stated in Bray, when confronted with a record nearly identical to the present one in terms of the defendants' motivation, "petitioners oppose abortion, and it is irrelevant to their opposition whether the abortion is performed after interstate travel." 113 S. Ct. at 763. The same is true here with respect to intrastate travel.
The other argument advanced by UHPP with respect to the deprivation clause need not detain the court for too long. UHPP asserts that as to six of the individual defendants herein a § 1985(3) deprivation clause claim still may be asserted against them because they admitted in their answer the critical class-based animus not present in Bray. Even if the court were to agree with UHPP on this point, nonetheless there is no basis for allowing such a claim to stand against these six defendants identified by UHPP because, as just discussed, a section 1985(3) deprivation claim cannot be predicated upon the purported interference with the right to intrastate travel. Consequently, after Bray the court is left with no choice but to dismiss UHPP's § 1985(3) cause of action as to all of the defendants insofar as it is based upon the deprivation clause of that statute.
B. "Prevention" Clause
In an effort to save its § 1985(3) cause of action from the evidently broad sweep of Bray, UHPP asserts that such cause of action is also premised upon the prevention clause. Both the defendants and UHPP spend much time arguing that various allegations in the 28 page, 148 paragraph amended complaint do or do not support a prevention clause claim. As the defendants correctly point out, prior to this preliminary injunction hearing, UHPP had been before the Court on several occasions, including a motion to dismiss, yet not once, until the March, 1993 status conference did UHPP even mention the possibility of a prevention clause claim or characterize its § 1985(3) cause of action in those terms. Despite that, broadly construing UHPP's amended complaint, the court will assume arguendo that it does allege a prevention claim under § 1985(3).
2. "Class-Based Invidiously, Discriminatory Animus "
The issue thus become whether this supposed prevention clause claim should be allowed to stand after Bray. The defendants emphatically assert that it should not because the "animus" requirement, so thoroughly discussed in Bray with respect to a deprivation clause claim, also applies to a prevention claim. UHPP responds by urging this court to hold that even after Bray, the prevention clause does not require a showing of a class-based animus, and thus this aspect of its § 1985(3) cause of action remains viable. Then, in what seems to be an alternative argument, UHPP contends that, in any event, a class-based animus has been established here and so it has properly asserted a prevention clause claim.
The court will first examine whether, as UHPP suggests, after Bray, a prevention claim can be maintained even absent a showing of a class-based invidiously, discriminatory animus. As mentioned earlier, the Supreme Court in Bray, albeit in the context of a deprivation claim, held that opposition to abortion is not an "otherwise class-based, invidiously discriminatory animus." Bray, 113 S. Ct. at 759. Further, in discussing the ambit of § 1985(3)'s animus requirement, the Supreme Court emphatically stated:
Whatever may be the precise meaning of a 'class' for purposes of Griffin's speculative extension of § 1985(3) beyond race, the term unquestionably connotes something more than a group of individuals who desire to engage in conduct that the § 1985(3) defendant disfavors . . . . the class 'cannot be defined simply as the group of victims of the tortious action.'