67 F.3d 359 (2nd Cir. 1994), 1215, Pro-Choice Network v. Schenck

Docket Nº:1215, 1310, Dockets 92-7302, 93-7918.
Citation:67 F.3d 359
Party Name:PRO-CHOICE NETWORK, of Western New York, Buffalo Gyn Women Services, Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Plaintiffs-Appellees, v. Rev. Paul SCHENCK, Dwight Saunders, Defendants-Appellants, Project Rescue Western New York, Operation Rescue, James L. Evans, Rev., Ted Cadwallader, Rev., David Anderson,
Case Date:September 06, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 359

67 F.3d 359 (2nd Cir. 1994)

PRO-CHOICE NETWORK, of Western New York, Buffalo Gyn Women

Services, Erie Medical Center, Paul J. Davis,

M.D., Shalom Press, M.D., Barnett

Slepian, M.D., Plaintiffs-Appellees,

v.

Rev. Paul SCHENCK, Dwight Saunders, Defendants-Appellants,

Project Rescue Western New York, Operation Rescue, James L.

Evans, Rev., Ted Cadwallader, Rev., 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, Daniel Hamlin, Rev., James Handyside, Pamela

Huffnagle, Donna Johanns, Eric Johns, Neal Kochis, Paulette

Likoudis, Charles McGuire, Christopher Morrow, Annemarie

Nice, Nicholas Pukalo, Carla Rainero, Thomas Riley, Patricia

Ostrander, Linda Ross, David Smith, Mark Sterlace, Joyce

Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr.,

Nancy Walker, Leonard Winter, Horace Wolcott, John Does,

Jane Does, the last two names 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 herein, Project Life of

Rochester, Gerald Crawford, David Long, Defendants.

PRO-CHOICE NETWORK, of Western New York, Buffalo Gyn Women

Services, P.C., Erie Medical Center, Paul J. Davis, M.D.,

Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman,

M.D., Highland Obstetrical Group, Alexander Women's Group,

Plaintiffs-Appellees,

v.

PROJECT RESCUE WESTERN NEW YORK, Operation Rescue, Project

Life of Rochester, Paul Schenk, James L. Evans, 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, Daniel Hamlin, Donna Johanns, James Handyside, Pamela

Huffnagle, Eric Johns, Neal Kochis, Paulette Likoudis,

Charles 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, JohnDoes, Jane Does,

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-Appellants.

Nos. 1215, 1310, Dockets 92-7302, 93-7918.

United States Court of Appeals, Second Circuit

September 6, 1994

Argued March 24, 1994.

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Vincent P. McCarthy, Joseph P. Secola, New Milford, CT (McCarthy & Secola, Jay Alan Sekulow, James M. Henderson, Mark N. Troobnick, Byron J. Babione, American Center for Law and Justice, of counsel), for appellants Schenck and Saunders in No. 92-7302.

Laurence D. Behr, Buffalo, NY, A. Lawrence Washburn, Jr., New York City, of counsel, for appellants in No. 93-7918.

Lucinda M. Finley, Buffalo, NY, for appellees.

Before OAKES, MESKILL and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

The principal issue in these appeals is the validity of a preliminary injunction issued by the United States District Court for the Western District of New York, Arcara, J. 1

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In No. 92-7302, the appellants appeal from the order issuing the injunction, Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417 (W.D.N.Y.1992) (Pro-Choice I ); in No. 93-7918, the appellants appeal from the district court's denial of a motion to vacate the injunction, Pro-Choice Network of Western New York v. Project Rescue Western New York, 828 F.Supp. 1018 (W.D.N.Y.1993) (Pro-Choice II ). For the reasons stated below, we affirm in part and reverse in part in Pro-Choice I, and we affirm in Pro-Choice II.

BACKGROUND

Both appeals arise out of the same underlying case, which commenced on September 24, 1990, when the plaintiffs filed a suit against the defendants alleging, primarily, that the defendants were engaged in a conspiracy to deprive women seeking abortions the privileges and immunities of national citizenship and the equal protection of the laws. The plaintiffs (collectively "Pro-Choice") include an organization, Pro-Choice Network of Western New York, that seeks to ensure legal access to abortion, as well as individual doctors and clinics in western New York that provide health care services, including the performance of abortions. The defendants (collectively "Project Rescue") are various individuals and organizations, including Project Rescue Western New York, that oppose abortion and have engaged in demonstrations at or near certain abortion clinics in western New York.

Pro-Choice's conspiracy claim against Project Rescue, which alleged that Project Rescue sought to violate women's constitutional rights to seek abortion and to travel, was predicated on the first clause of 42 U.S.C. Sec. 1985(3). That provision states in pertinent part:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

Pro-Choice's complaint also alleged six pendent state law claims against Project Rescue, including trespass and violation of New York Civil Rights Law Sec. 40-c (section 40-c). 2

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Pro-Choice sought declaratory and injunctive relief, as well as compensatory and punitive damages.

Simultaneously with the filing of its complaint, Pro-Choice moved, pursuant to Fed.R.Civ.P. 65(b), for a temporary restraining order (TRO) prohibiting Project Rescue from conducting an abortion clinic blockade scheduled for September 28, 1990. After a hearing, the district court granted the TRO, enjoining Project Rescue from blockading any of the plaintiff medical facilities and from harassing patients or staff members as they entered or exited those facilities. In accordance with the TRO, Project Rescue held a peaceful demonstration instead of conducting a blockade on September 28.

With the consent of the parties, the district court extended the TRO pending the parties' briefing on whether the TRO should be converted into a preliminary injunction. During this period of extension, Project Rescue moved to dismiss or to stay the action pursuant to the abstention doctrine on the ground that a parallel proceeding was pending in state court. After a hearing, the district court denied the motion. On Project Rescue's motion for reconsideration, the district court agreed to reconsider the denial, but reaffirmed its previous decision on the ground that the pending state action was " 'dead in the water.' " Pro-Choice I, 799 F.Supp. at 1439. Also during the period in which the TRO was extended, Pro-Choice filed motions for civil contempt against several individual defendants and against Project Rescue itself. The district court ultimately granted these motions. See Pro-Choice II, 828 F.Supp. at 1028-29; see also Pro-Choice Network of Western New York v. Walker, 994 F.2d 989 (2d Cir.1993) (Pro-Choice III ) (dismissing for lack of appellate jurisdiction appeals by three individuals against whom motions for civil contempt were granted).

As to whether the TRO should be converted into a preliminary injunction, the district court heard arguments and took evidence, and made numerous factual findings. See Pro-Choice I, 799 F.Supp. at 1424-27. The court first found that Project Rescue utilizes several different demonstration techniques: actual physical blockades of abortion facilities, constructive blockades of such facilities, and sidewalk counseling. The court then noted that, because Project Rescue had conceded that the physical blockades could be enjoined and in fact had not engaged in any physical blockades of clinics since the issuance of the TRO enjoining such blockades, the court would focus on the other two demonstration techniques. Id. at 1424 n. 5.

The district court found that constructive blockades are designed to prevent access to abortion clinics by intimidation or dissuasion and by physical obstruction of people trying to enter the clinics. Moreover, the court found that constructive blockades involve not only "forcing patients to run a gauntlet of harassment and intimidation," but also picketing, congregating near driveway entrances, making "loud and disruptive noises," yelling, pushing, and shoving. Id. at 1424. The court found that these constructive blockade techniques cause stress and physical injury to clinic patients and employees and disrupt the atmosphere necessary for providing medical care.

The court also found that sidewalk counseling, in which demonstrators seek to persuade a patient not to have an abortion, often becomes a "charged encounter"...

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