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Roe v. Operation Rescue

filed: November 26, 1990; As Corrected January 4, 1991.

ROE, JANE; MOE, MARY; NATIONAL ABORTION RIGHTS ACTION LEAGUE OF PENNSYLVANIA; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA; ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN; REPRODUCTIVE HEALTH AND COUNSELING CENTER; WOMEN'S SUBURBAN CLINIC; ALLENTOWN WOMEN'S CENTER; NORTHEAST WOMEN'S CENTER; WOMEN'S MEDICAL SERVICES; KLINE, DR. ALLEN
v.
OPERATION RESCUE; TERRY, RANDALL; LISANT, REVEREND JAMES P.; PRO LIFE NONVIOLENT ACTION PROJECT OF BRONX, N.Y.; HERLIHY, THOMAS; PRO-LIFE NONVIOLENT ACTION PROJECT OF PHILADELPHIA; MC MONAGLE, MICHAEL; CHESTER COUNTY CITIZENS CONCERNED ABOUT LIFE; O'BRIEN, JOHN J.; COUNCIL FOR THE SANCTITY OF HUMAN LIFE; FOREMAN, JOSEPH; ADVOCATES FOR LIFE; BURNETT, ANDREW; AMERICAN LIFE LEAGUE; BROWN, JUDIE; DIRECT ACTION COMMITTEE; HOFFER, KATHY; HOFFER, CRAIG; LIFE AND FAMILY CENTER; SCHULBERG, ANDREW; PRO LIFE ACTION LEAGUE; SCHEIDLER, JOSEPH; PRO LIFE DIRECT ACTION LEAGUE; RYAN, JOHN; OMAHA CHRISTIAN ACTION COUNCIL; HARTFORD, DENNY; PRO LIFE NONVIOLENT ACTION PROJECT OF WASHINGTON, D.C.; O'KEEFE, JOHN CAVANAUGH; SMITH(S), JOHN AND SMITH(S) JANE, 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, RANDALL TERRY, MICHAEL MCMONAGLE, JOSEPH FOREMAN, TINA KRAIL AND OPERATION RESCUE, APPELLANTS IN NO. 89-1011, JOSEPH FOREMAN, RANDALL TERRY, OPERATION RESCUE, MICHAEL MCMONAGLE AND TINA KRAIL, APPELLANTS IN NO. 89-1428 NATIONAL ABORTION RIGHTS ACTION LEAGUE OF PENNSYLVANIA, PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA; ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN, REPRODUCTIVE HEALTH AND COUNSELING CENTER, WOMEN'S SUBURBAN CLINIC, ALLENTOWN WOMEN'S CENTER, NORTHEAST WOMEN'S CENTER, AND CHERRY HILL WOMEN'S CENTER, APPELLANTS IN NO. 89-1471



Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 88-5157.

Higginbotham, Chief Judge, Becker and Nygaard, Circuit Judges.

Author: Becker

BECKER, Circuit Judge

This is an appeal by defendant Operation Rescue, a group of organizations and individuals whose purpose, the district court found, is to "organize and coordinate disruptions of abortion and family planning facilities," and by a number of individual defendants associated with Operation Rescue. These defendants appeal from the district court's grant of a permanent injunction preventing them from demonstrating in front of and disrupting activities at various women's health facilities in the Philadelphia area. They also appeal from the district court's order holding them and a number of other anti-abortion protesters in civil contempt for violating a temporary restraining order and requiring them to pay compensatory damages to those plaintiff-clinics that were subjected to unlawful protests. In addition, plaintiffs have filed a cross-appeal in which they challenge the district court's dismissal of certain plaintiffs for lack of standing and the court's holding that it is powerless to award compensatory damages to non-party clinics.

The parties have briefed a considerable number of issues, including: (1) whether the dismissed plaintiffs have standing; (2) whether the plaintiffs have met the requirements of 42 U.S.C. § 1985(3) by establishing -- (a) sufficient class-based animus, (b) violation of their constitutional rights to abortion and/or travel, and (c) sufficient government involvement to establish an infringement of the abortion right; and (3) whether a non-party (one of the clinics) is entitled to civil contempt damages. The standing and contempt questions, although requiring some discussion, are relatively straightforward. We have little difficulty concluding that the dismissed plaintiffs have standing to sue and that the district court correctly found itself unable to award contempt damages to a non-party -- i.e., Cherry Hill Women's Center. By contrast, the § 1985(3) issues are considerably more complex.

We need not grapple with these federal issues here, however, because we are satisfied that the injunction must be affirmed on state-law grounds of trespass and intentional interference with contractual relations, regardless of our ultimate resolution of the § 1985(3) questions. When the district court granted the injunction, it specifically stated that each of plaintiffs' three causes of action -- their § 1985(3) claim and their two state-law claims -- was by itself sufficient to warrant injunctive relief. Defendants have not appealed the court's grant of summary judgment on plaintiffs' two state-law claims. Considering the complexity of the federal issue and the unchallenged bases for upholding the permanent injunction, we decline to issue an ambitious advisory opinion, and we will therefore affirm the order granting the injunction.

I. FACTS AND PROCEDURAL HISTORY

In the early summer of 1988, Operation Rescue publicly announced plans to close down clinics that offer abortions in the Philadelphia area by staging massive demonstrations and blockades at these facilities during the week of July 4. These demonstrations, described below, constituted one phase of a well-orchestrated campaign to disrupt and shut down abortion clinics throughout the nation. Operation Rescue's plans for Philadelphia involved a rally on July 4 and "rescue missions" -- i.e., blockades and demonstrations -- at abortion clinics on July 5 and 6. The organization, however, did not identify in advance which Philadelphia area clinics it intended to target.

The success of Operation Rescue's blockades elsewhere, particularly in New York City, and its public boasts about the prospective Philadelphia demonstrations led eleven plaintiffs to file a complaint in the district court for the Eastern District of Pennsylvania on June 29, 1988, seeking declaratory and injunctive relief against the threatened protests, as well as money damages.*fn1 The original eleven plaintiffs consisted of seven abortion and family planning clinics;*fn2 the National Abortion Rights Action League of Pennsylvania ("NARAL/PA"), the local chapter of a national organization representing people who wish to keep abortion legal; Jane Roe and Mary Moe, two pregnant women for whom abortions had been scheduled during the week of July 4; and Dr. Albert Klein, a physician who regularly performs abortions in Philadelphia.*fn3 The thirty named defendants included Operation Rescue; Randall Terry, the National Director and Organizer of Operation Rescue; Joseph Foreman, the Regional Director of Operation Rescue; and Michael McMonagle, the Executive Director of Pro-Life Coalition of Southeastern Pennsylvania.*fn4

Plaintiffs' complaint alleged two federal causes of action, one under the federal civil rights statute prohibiting conspiracies to deprive others of their constitutional rights, 42 U.S.C. § 1985(3), and the other under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). The complaint also set forth four pendent, state-law claims: (1) tortious interference with existing and prospective contractual relations; (2) trespass; (3) intentional infliction of emotional distress; and (4) false imprisonment. Along with the complaint, plaintiffs filed a motion for a temporary restraining order ("TRO") and for a preliminary injunction to ensure that defendants' planned activities for the week of July 4 did not interfere with their rights to obtain and provide abortions.

After a hearing on June 30, 1988, the district court issued a TRO, enjoining the defendants and others acting in concert with them from trespassing on, blocking entrances at, or physically abusing or harassing persons working or obtaining services at abortion facilities in the metropolitan Philadelphia area from July 4 to 9. The court stated:

The explicit purpose of [defendants'] protests, as stated in the promotional literature regarding the event and as demonstrated in recent protests by defendants, is to block access to clinics or doctors' offices where abortions are performed. There is a strong likelihood that plaintiffs, including women scheduled for abortion procedures at various clinics in Philadelphia during the week of July 4, 1988, will suffer both physical and emotional harm if they cannot gain access to the various abortion facilities in this City for their scheduled appointments.

Five days later, on July 5, the court modified its TRO to include Cherry Hill, New Jersey as part of the protected area. A hearing on plaintiffs' request for a preliminary injunction was scheduled for July 11 and ultimately was continued until September 13.

In spite of the TRO, defendants carried out their planned "rescue missions." Acting with extensive support, they demonstrated and blocked access to entrances at WSC on July 5, NEWC on July 6, and CHWC on July 9. In the course of these demonstrations, police arrested over 900 people. Defendants' protests succeeded in obstructing the operation of these three clinics. In particular, WSC, NEWC, and CHWC suffered significant scheduling disruptions and financial loss.

In the wake of these events, plaintiffs, on July 28, 1988, moved for an order adjudging certain defendants in civil contempt. The affidavits accompanying this motion described in detail how the defendants, after acquiring actual knowledge of the TRO, violated its provisions on three separate occasions between July 5 and 9. The plaintiffs also renewed their motion for a preliminary injunction. These motions were scheduled for argument on September 13, 1988, together with a hearing on plaintiffs' request for a permanent injunction. On that date, the parties agreed to a temporary consent decree that provided for a preliminary injunction to remain in effect until the hearing on the permanent injunction. An order was entered by the court in accordance with this consent decree on September 22, 1988, and the hearing on plaintiffs' motions for a permanent injunction and to hold defendants in civil contempt was continued until November 15, 1988.

On November 9, 1988, prior to the hearing on civil contempt and permanent injunctive relief, the district court denied McMonagle's motion in limine to permit him to produce "medical and scientific evidence as to the humanity of the unborn child." Roe v. Operation Rescue, 123 F.R.D. 508, 510 (E.D. Pa. 1988). McMonagle planned to show that he and other defendants reasonably believed that their actions were necessary to protect human life. He hoped to introduce such evidence as part of a justification defense to the contempt charge. The court, however, held that "defendants may not introduce evidence bearing on justification or motive for the acts allegedly committed." Id. at 511.

The district court heard two days of testimony in support of plaintiffs' motion for civil contempt. The plaintiffs presented evidence that certain named defendants were personally served with copies of the court's TRO and that other non-defendants were present while the TRO was read by federal marshals. The plaintiffs also presented witnesses from each of the three targeted clinics who testified concerning the details of Operation Rescue's blockades and the damages incurred by the clinics as a result. The court did not rule on plaintiffs' request for permanent injunctive relief at that time, however, for the parties mutually agreed to a continuation of the preliminary injunction then in effect. At the conclusion of the hearing, the court took the civil contempt matter under advisement, promising a prompt decision on plaintiffs' motion.

On December 5, 1988, the court held Operation Rescue, Randall Terry, Michael McMonagle, Joseph Foreman, and non-defendant Tina Krail in civil contempt for violating the TRO. The court imposed and then suspended conditional coercive fines on the contemnors in the amount of $5,000 for each past violation of the court's order and $5,000 for each future violation. Under the contempt order, any future violation by the contemnors would result in the immediate withdrawal of the suspension of these fines. The court also awarded plaintiffs attorneys' fees and compensatory damages, the latter amounting to $2,308.03 -- plaintiffs' payroll costs on the dates of defendants' demonstrations. Because CHWC was not a party to the action, however, the district court concluded that it was unable to award that clinic compensatory damages. The defendants and Krail filed an appeal (No. 89-1011) from the court's contempt order.

Several of the original plaintiffs subsequently were dismissed from the action. On December 5, the district court granted the motion for voluntary dismissal, pursuant to Fed. R. Civ. P. 41(a)(2), of plaintiffs Roe and Moe, the two pregnant women. Further, on December 19, the court dismissed for lack of standing certain other plaintiffs -- including Dr. Klein, NARAL/PA, and the four clinics that were not subjected to blockades during the week of July 4. These plaintiffs, the court concluded, had failed to demonstrate that they had sustained or were in immediate danger of sustaining some injury as a result of defendants' putatively illegal conduct.

After the close of discovery, the parties filed cross-motions for summary judgment. On March 21, 1989, the district court granted summary judgment for plaintiffs on several of their claims and issued a permanent injunction against defendants' anti-abortion activities. See Roe v. Operation Rescue, 710 F. Supp. 577 (E.D. Pa. 1989). This injunction rested on three alternative grounds: (1) plaintiffs' § 1985(3) claim of conspiracy to violate their constitutional right to travel; (2) plaintiffs' state-law claim of trespass; and (3) plaintiffs' state-law claim of intentional interference with contractual relations. At the same time, the court granted summary judgment for the defendants on plaintiffs' § 1985(3) claim of conspiracy to violate their constitutional right to abortion. The court also denied summary judgment to plaintiffs on their claim of false imprisonment and granted summary judgment for defendants on plaintiffs' claim of intentional infliction of emotional distress. Determining that plaintiffs were the prevailing parties, the district court awarded them attorneys' fees in the amount of $70,758.37 pursuant to 42 U.S.C. § 1988. Content with the relief accorded to them, plaintiffs moved to dismiss their remaining claims. This motion was granted, and final judgment was entered on April 19, 1989. An appeal (No. 89-1428) and cross-appeal (No. 89-1471) followed and were consolidated with the earlier appeal from the district court's contempt order.

On appeal, defendants ask us to review the district court's orders: (1) issuing a permanent injunction predicated on plaintiffs' § 1985(3) claim, and (2) holding McMonagle and Krail in contempt for violating the TRO. On cross-appeal, plaintiffs ask us to reverse: (1) the court's order dismissing certain plaintiffs for lack of standing, and (2) its refusal to award CHWC compensatory damages.

II. STANDING

The district court dismissed several plaintiffs from the case for lack of standing. Of these plaintiffs, Dr. Klein and WMS do not appeal their dismissal. The other dismissed plaintiffs, three area abortion clinics (RHCC, Planned Parenthood, and AWC) and a state affiliate of a national abortion rights organization (NARAL/PA), however, challenge the district court's determination that they lack standing. Our review of this determination is plenary. See Starks v. Perloff Bros., 760 F.2d 52, 55 (3d Cir. 1985).

A. The Clinics

As we have noted, the district court dismissed for lack of standing the abortion clinics that were not blockaded by defendants during the week of July 4. Although these facilities were potential targets of defendants' activities during that week and remain potential targets for their future demonstrations, the court concluded that the clinics had not established a "real and immediate" threat of future injury. We disagree. Considering defendants' past and likely future conduct, we believe that RHCC, Planned Parenthood, and AWC (the dismissed plaintiffs) are as vulnerable to future harassment by defendants as are the clinics that were actually subjected to blockades during the week of July 4. We therefore think that these clinics should also be protected by the court's permanent injunction.

Article III of the Constitution requires a litigant to allege an actual case or controversy before invoking the jurisdiction of a federal court. In particular, "the plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged . . . conduct and [that] the injury or threat of injury [is] both 'real and immediate,' not 'conjectural' or 'hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) (citations omitted); see also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) ("Article III requires the party who invokes the court's authority to 'show that he personally has suffered some actual ...


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