NOW v. Operation Rescue

Citation726 F. Supp. 300
Decision Date09 November 1989
Docket NumberCiv. A. No. 89-2968-LFO.
PartiesNOW, et al., Plaintiffs, v. OPERATION RESCUE, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

John H. Schafer, Laurence J. Eisenstein, Pamela S. Passman, Richard H. Seamon, Covington & Burling, Sarah E. Burns, Washington, D.C., Alison Wetherfield,* NOW Legal Defense and Educ. Fund, New York City, for plaintiffs.

Jay Alan Sekulow,** James Matthew Henderson, Sr., Douglas W. Davis, Christian Advocates Serving Evangelism, Washington, D.C., for Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Clifford Gannett, Michael McMonagle, Michael Bray, and Jayne Bray.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiffs, National Organization for Women, 51st State National Organization for Women, Maryland National Organization for Women, Virginia National Organization for Women, Planned Parenthood of Metropolitan Washington, National Abortion Federation, Commonwealth Women's Clinic, Capital Women's Center, Hillcrest Women's Surgi-Center, and Metropolitan Family Planning Institute move for a preliminary injunction enjoining defendants Operation Rescue, Project Rescue, The D.C. Project, Veterans Campaign for Life, Randall Terry, Patrick Mahoney, Clifford Gannett, Michael McMonagle, Michael Bray, and Jayne Bray from, among other things, physically impeding access to and egress from premises where plaintiffs render legal, but (to some) controversial, medical services and advice to women. Defendant Michael McMonagle has not been served. All other defendants have been served and have responded to the motion and appeared at a hearing through counsel, except defendant Patrick Mahoney who appeared pro se.

The complaint alleges five causes of action. Three of those are based on state law claims of trespass, tortious interference with business relationships, and public nuisance. The two federal causes of action allege a conspiracy under 42 U.S.C. § 1985(3) to deny the constitutional rights to travel and privacy of those women who seek services offered by plaintiffs.

A hearing on plaintiff's application was held on November 7 and 8, 1989. The following findings of fact and conclusions of law are made pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

1. Four of the plaintiffs render advice and medical service with respect to abortion and family planning. The Capitol Women's Center and the Hillcrest Women's Surgi-Center are located in the District of Columbia. The Metropolitan Family Planning Institute is located in Maryland. The Commonwealth Women's Clinic is located in Virginia. In addition, plaintiff Planned Parenthood provides medical services at sites in the Metropolitan Washington area—one located in the District of Columbia and the other located in Silver Spring, Maryland. See Complaint at ¶¶ 9, 11-14. A significant number of patients travel across state lines to obtain medical services at these sites. See Dickenson-Collins Aff. at 4; Codding Aff. at 3.

2. A pamphlet allegedly published, and not disavowed by defendant Veteran's Campaign for Life invites people to "Come to the nation's capital this Veteran's Day, November 10th and 11th, for the Veteran's Campaign For Life.... On the evening of the 10th, a prolife rally and training will be held to prepare as many as we can to rescue the unborn on the 11th at a local DC abortuary." The pamphlet further states that this activity is scheduled for the morning of November 11th. There is also in evidence a pamphlet containing a "Schedule of Events," which lists as the activity for November 17th and 18th at 7:30 a.m.: "Rescue those who are unjustly sentenced to death!" Plaintiffs' Exhibit D at 4 (Attachment A).

3. In a sworn affidavit, defendant Terry states that he has "participated in aborter blockades in the past." Terry further explains that "while the child-killing facility is blockaded, no one is permitted to enter past the rescuers.... Doctors, nurses, patients, staff, abortion-bound women, families of abortion-bound women—all are prevented from entering the aborter while the rescue is in progress." Terry Aff. at ¶ 6 (Attachment B).

4. Defendants' literature publicizing the upcoming protests contains no indication of which premises are to be targeted. Defendants' counsel and pro se defendant Mahoney have not been able to inform the court of any specific plans to blockade a particular premise, but conspicuously fail to traverse the allegations that there are such plans. In the past, defendants have not publicly revealed the premises that will be the target of their blockades. See Dickenson-Collins Suppl.Decl. at ¶ 2; Savarese Aff. at ¶ 3;

5. There is uncontradicted evidence that defendants Operation Rescue and Project Rescue have been the motivating force behind other blockades similar to those presently threatened. In a letter on Operation Rescue letterhead, defendant Terry explains "the growth of this movement":

On April 29th, the National Day of Rescue II, rescue groups in 46 cities participated in rescue missions. Also, prolifers in another 17 cities did not need to risk arrest because all of the killing centers closed down for fear of the upcoming rescues. In all, 49 babies were confirmed saved with over 5,000 risking arrest; and 3,400 actually arrested.

Plaintiffs' Exhibit D at 7 (see Attachment A).

6. Patricia Ireland, the Executive Vice President of plaintiff NOW has attested that between 7:00 a.m. and 7:30 a.m. on April 29, 1989 hundreds of anti-abortion activists converged on the Metropolitan Family Planning Institute in College Park, Maryland and effectively blocked ingress and egress during the entire time that the clinic was scheduled to be open. Ms. Ireland alleges, without contradiction by defendants, that the "National Day of Rescue" was organized by Operation Rescue and that the "Day of Rescue" in the DC area was organized by Project Rescue and defendant Clifford Gannett. See Ireland Aff. at 1. See also Spears-Moore Aff. at ¶ 2 (explaining that persons associated with Operation Rescue have in the past blocked the entrance to the Hillcrest Women's Surgi-Center).

7. Decisions in other jurisdictions evidence the blockading by Operation Rescue of access to and egress from places performing lawful medical services. See, e.g., Cousins v. Terry, 721 F.Supp. 426 (N.D.N. Y.1989) (chronicling the efforts of Randall Terry and "Operation Rescue" to block access to premises in New York); see also Town of West Hartford v. Operation Rescue, 726 F.Supp. 371, 373-75 (D.Conn.1989); Aradia Women's Health Center v. Operation Rescue, No. C88-1539R, Order at 2 (W.D.Wash. January 10, 1989).

8. Plaintiffs' complaint alleges that defendant Terry is the National Director of defendant Operation Rescue and that he had been involved in organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 19. Defendant Terry has neither refuted nor disaffirmed this allegation. See Terry Aff. at ¶ 7(c).

9. At the hearing on November 7, 1989, pro se defendant Mahoney stated that he is a paid consultant for Operation Rescue and that he has been in the Washington Metropolitan area for the past five weeks organizing and coordinating the D.C. Project. Defendant Mahoney specifically disavowed any intention to participate in blockades of plaintiffs' premises, but was unable to refute the evidence that there are such plans.

10. Plaintiffs' complaint alleges that defendant Gannett is a director of Project Rescue and is organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 21. In addition, plaintiffs have submitted evidence indicating that defendant Gannett organized Operation Rescue activities in the Washington Metropolitan area on April 29, 1989, which activities resulted in the blockading and closing of at least one premises. See Ireland Aff. at ¶ 1. Defendant Gannett has not refuted or disaffirmed these allegations, See also Gannett Aff.

11. Plaintiffs' complaint alleges that defendant Michael Bray has organized and coordinated activities for Operation Rescue, and is organizing and coordinating activities planned by defendants for the Washington Metropolitan area. See Complaint at ¶ 23. Defendant Michael Bray, however, disputes these allegations. He has stated: "I have not been involved directly or indirectly in planning any of the actions complained of by Plaintiffs.... I have not distributed any literature, such as the exhibits which are part of Plaintiffs' Application for an Expedited Preliminary Injunction.... I do not plan, and have not made any commitment or representation, to participate in any of the training or rescue or penitential activities of either the Veterans Campaign for Life or the D.C. Project." See Michael Bray Aff. at ¶¶ 3-5.

12. Plaintiffs' complaint alleges that defendant Jayne Bray is organizing and coordinating activities planned by defendants for the Washington Metropolitan area, including meetings at the D.C. Armory on or around November 15-17, 1989. See Complaint at ¶ 24. Defendant Bray has neither refuted nor disaffirmed these allegations, though she has stated: "I do not plan, and have not made any commitment or representation, to participate in any illegal activity of either the Veterans Campaign for Life or the D.C. Project." Jayne Bray Aff. at ¶ 3.

13. Defendant organizations have not provided any evidence to refute nor have they disaffirmed their alleged intention to interfere with provision of medical services by blocking access to and egress from the premises where plaintiffs render such services.

14. Affidavits submitted by plaintiffs and the testimony of the District of Columbia Metropolitan Police Department Inspector Louis Widawski establish that police response to past blockades has not prevented interruption of patient ingress and egress to and from...

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6 cases
  • NAT. ORGANIZATION FOR WOMEN v. Operation Rescue
    • United States
    • U.S. District Court — Eastern District of Virginia
    • December 6, 1989
    ...(D.Ct.1989). 9 National Abortion Fed'n v. Operation Rescue, No. CV 89-1181 (C.D.Cal. March 15, 1989). 10 National Org. for Women v. Operation Rescue, 726 F.Supp. 300 (D.D.C.1989); National Org. for Women v. Operation Rescue, No. 89-3038 (D.Md. Nov. 9, 11 Where the claimed abortion right is ......
  • National Organization for Women v. Operation Rescue
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 18, 1994
    ...interference with business relationships. The district court issued a preliminary injunction on November 8, 1989, NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C.1989). The preliminary injunction was based solely on the pendent local law claims; the district court deferred any decision on t......
  • Town of West Hartford v. Operation Rescue
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 21, 1993
    ...State NOW v. Terry, 886 F.2d 1339 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C.1989); Roe v. Operation Rescue, 710 F.Supp. 577 (E.D.Pa.1989), aff'd, 919 F.2d 857 (3d Cir.1990). The two West Hartford demons......
  • NOW v. Operation Rescue, Civ. A. No. 89-2968-LFO.
    • United States
    • U.S. District Court — District of Columbia
    • July 31, 1990
    ...application was held on November 7 and 8, 1989, and a preliminary injunction was issued on November 8, 1989. See NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C. 1989). The preliminary injunction was based upon findings that plaintiffs were likely to succeed in proving that defendants had b......
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