NY State Organization For Women v. Terry

• Decision Date: 20 January 1989
• Docket Number: No. 88 Civ. 3071 (RJW).,88 Civ. 3071 (RJW).
• Citation: 704 F. Supp. 1247
• Parties: NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights-New York Metropolitan Area; New York State National Abortion Rights Action League, Inc.; Planned Parenthood of New York City, Inc.; Eastern Women's Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan); Ob-Gyn Pavilion; the Center for Reproductive and Sexual Health; VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan; and Pro-Choice Coalition, Plaintiffs, and City of New York, Plaintiff-Intervenor, v. Randall TERRY; Operation Rescue; Reverend James P. Lisante; Thomas Herlihy; 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.
• Court: U.S. District Court — Southern District of New York

704 F. Supp. 1247

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN; New York City Chapter of the National Organization for Women; National Organization for Women; Religious Coalition for Abortion Rights-New York Metropolitan Area; New York State National Abortion Rights Action League, Inc.; Planned Parenthood of New York City, Inc.; Eastern Women's Center, Inc.; Planned Parenthood Clinic (Bronx); Planned Parenthood Clinic (Brooklyn); Planned Parenthood Margaret Sanger Clinic (Manhattan); Ob-Gyn Pavilion; the Center for Reproductive and Sexual Health; VIP Medical Associates; Bill Baird Institute (Suffolk); Bill Baird Institute (Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Beatrice Blair; Rabbi Dennis Math; Reverend Donald Morlan; and Pro-Choice Coalition, Plaintiffs, and City of New York, Plaintiff-Intervenor, v. Randall TERRY; Operation Rescue; Reverend James P. Lisante; Thomas Herlihy; 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.

No. 88 Civ. 3071 (RJW).

United States District Court, S.D. New York.

January 20, 1989.

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Center for Constitutional Rights (David Cole, Mary M. Gundrum, Rhonda Copelon, of counsel), Now Legal Defense and Education Fund, (Alison Wetherfield, Sarah Burns, of counsel), Rabinowitz, Boudin, Standard, Krinsky & Lieberman (Judith Levin, of counsel), New York City, for plaintiffs.

Corporation Counsel for the City of New York (Peter Zimroth, Lorna Goodman, Hilary Weisman, of counsel), New York City, for plaintiff-intervenor.

Michael E. Tierney, New York City, A. Lawrence Washburn, Albany, N.Y., The Rutherford Institute of Connecticut, Inc. (Joseph R. Secola, George J. Mercer, of counsel), Milford, Conn., for defendants.

OPINION

ROBERT J. WARD, District Judge.

Defendants, a group committed to anti-abortion protests and individuals affiliated with the group, have moved, pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., to dismiss plaintiffs' amended complaint and plaintiff-intervenor's complaint. Plaintiffs, a coalition of women's organizations and abortion providers, have moved for summary judgment, pursuant to Rule 56, Fed.R. Civ.P., and they seek a permanent injunction prohibiting defendants from blocking access to medical facilities where abortions are performed. Plaintiff-intervenor, the City of New York ("the City"), has joined plaintiffs in their application for injunctive relief.

For the reasons that follow, defendants' motion to dismiss is denied, and plaintiffs' motion for summary judgment is granted.

BACKGROUND

Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988, seeking injunctive and declaratory relief. Exhibit A, annexed to Petition for Removal, filed May 3, 1988 ("Plaintiffs' Complaint").¹ Defendants had organized and publicized a week of protests called Operation Rescue to be carried out in the New York City area from April 30 until May 7, 1988.² According to the plan, protestors each day would converge on a facility at which abortions were performed in an effort to close down the facility. The target facility each day was not to be disclosed in advance.

By order to show cause plaintiffs sought to enjoin defendants, for the duration of the planned Operation Rescue, from obstructing access to any facility at which abortions were performed in New York City and the surrounding counties. Justice Cahn of the New York State Supreme Court, New York County, issued a first temporary restraining order on April 28, 1988. After hearing assurances from representatives of the New York City Police Department that the authorities would be able to ensure access to any protest site, Justice Cahn declined to include in this first restraining order any language specifically prohibiting the blocking of access to clinics.

It is undisputed that on May 2, 1988, Operation Rescue conducted a demonstration in front of a physician's office at 154 East 85th Street in Manhattan, where abortions are performed. Five hundred and three protestors sat on the sidewalk in front of the office for at least five hours, and the police arrested these 503 demonstrators for disorderly conduct in blocking ingress to and egress from the office. Statement of Stipulated Facts, filed May 4, 1988 ¶ 1.

Justice Cahn held another hearing on the afternoon of May 2, 1988, in view of defendants' conduct at the demonstration earlier that day. At the conclusion of the hearing, Justice Cahn issued a second, modified temporary restraining order. Id. ¶ 2. This second order included an express prohibition against the blocking of access to facilities where abortions are performed.³

Operation Rescue conducted a demonstration on the morning of May 3, 1988, in front of a clinic at 83-06 Queens Boulevard, Queens, New York. Defendant Terry was present at the demonstration in a leadership capacity and was personally served with Justice Cahn's order at approximately 9:00 a.m. The demonstration continued after Terry was served with the order. The police arrested several hundred demonstrators for blocking ingress to and egress from the clinic, and the sidewalk was cleared by approximately 11:45 a.m. Id. ¶¶ 3, 10.

On the afternoon of May 3, 1988, Justice Cahn conducted a further hearing on the matter, during the course of which defendants removed the action to this Court. This Court scheduled a hearing to be conducted in the late afternoon of the following day, May 4, 1988. Apparently, no demonstration was carried out on the morning of May 4.

After argument by the parties, this Court ruled on Wednesday evening, May 4, 1988, that it would adopt and continue Justice Cahn's May 2 order and would modify it by (1) adding coercive sanctions of $25,000 for each day that defendants violated the terms of the order; and (2) requiring defendants to notify the City in advance of the location of any demonstrations, and providing that if such notice was not provided, defendants would be liable for the City's excess costs incurred due to the lack of notice. See Transcript of Hearing, conducted May 4, 1988, at 61-62, 65-66, 72-73 ("the May 4 Order"). Defendant Terry received oral notice of this Court's action from his attorney on the evening of May 4, and the Court signed the May 4 Order the following morning. Second Statement of Stipulated Facts, filed July 19, 1988 ¶ 1.

On Thursday morning, May 5, 1988, Operation Rescue demonstrators sat on the sidewalk in front of the Women's Choice Clinic, where abortions are performed, at 17 W. John Street, Hicksville, Long Island. The demonstrators blocked ingress to and egress from the clinic for approximately three hours. Id. ¶ 3.

On Friday morning, May 6, 1988, "Operation Rescue" demonstrators returned to the same site where they had demonstrated on Monday, at 154 East 85th Street, Manhattan, blocking access to the office. Id. ¶ 4. Defendant Terry personally participated in physically blocking access to the abortion facility during the May 6 demonstration and was arrested. Third Statement of Stipulated Facts, filed July 26, 1988 ¶ 5. Approximately 320 Operation Rescue demonstrators were arrested at the May 6 demonstration. Id. ¶ 7.

At no time after he received notice of the May 4 Order did defendant Terry direct demonstrators to obey the Order, nor did he at any time alter his prior written instructions to Operation Rescue participants that their goal must be to block access to abortion facilities. At the May 6 demonstration, defendant Terry did communicate to demonstrators the terms of the Court's Order. Id. ¶ 6. The City did not receive advance notice of the location of the demonstrations on May 5 or May 6. Second Statement of Stipulated Facts, filed July 19, 1988 ¶ 5.

On May 31, 1988, plaintiffs filed a motion for civil contempt against all defendants, pursuant to 18 U.S.C. § 401 and Rule 70, Fed.R.Civ.P. On July 6, 1988, defendants filed a cross-motion to dismiss the complaint. In an Opinion dated October 27, 1988 ("the October 27 Opinion"), the Court adjudged defendants Operation Rescue and Randall Terry in civil contempt of the Court's Order for their activities during the May 5 and May 6 demonstrations. Defendants' cross-motion was denied. Accordingly, the Court entered on November 4, 1988 a judgment in the amount of $50,000 payable to the National Organization for Women; and on December 9, 1988 judgment was entered in the amount of $19,141 in favor of the City. Defendants have filed notices of appeal from both judgments.

In light of defendants' plan to conduct a National Day of Rescue at the end of October, see Exhibit B, annexed to Affirmation of Mary M. Gundrum, filed December 21, 1988 ("Gundrum Aff."), plaintiffs, on October 7, 1988, sought modification of the Court's prior injunction, to cover the dates October 28, 29 and 31, 1988. At the conclusion of an evidentiary hearing conducted October 25 and 27, 1988, the Court granted plaintiffs' motion and signed an order granting plaintiffs the modified preliminary relief they sought ("the October 27 Order"). Defendants' application to this Court and to the Court of Appeals for a stay pending appeal of the October 27 Order was denied.

Notwithstanding the issuance of the modified injunction and the denial of the requested stay, defendants conducted two demonstrations on the morning of October 29, 1988 within the geographic area covered by the October 27 Order. From at least 8:00 a.m. until about 12:15 p.m. on October 29, approximately 250 Operation Rescue demonstrators blocked ingress to and egress from the Women's Pavilion medical clinic on Ashford Avenue in Dobbs Ferry, New York. Exhibits A, H &...