Cousins v. Terry

• Citation: 721 F. Supp. 426
• Decision Date: 22 September 1989
• Docket Number: No. 89-CV-973.,89-CV-973.
• Parties: Amy R. COUSINS, M.D.; Margaret R. Johnston; Southern Tier Women's Services, Inc., a New York Corporation; Salomon N. Epstein, M.D.; Binghamton Women's Services; The Women's Center, an unincorporated association, Plaintiffs, v. Randall TERRY, Individually, as President of, and d/b/a Operation Rescue, an unincorporated association; Gary Leber, Individually and as a representative of Operation Rescue; Project Life, an unincorporated association; Crisis Pregnancy Center, an unincorporated association; John Doe(s), Jane Doe(s), the last two 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 — Northern District of New York

721 F. Supp. 426

Amy R. COUSINS, M.D.; Margaret R. Johnston; Southern Tier Women's Services, Inc., a New York Corporation; Salomon N. Epstein, M.D.; Binghamton Women's Services; The Women's Center, an unincorporated association, Plaintiffs, v. Randall TERRY, Individually, as President of, and d/b/a Operation Rescue, an unincorporated association; Gary Leber, Individually and as a representative of Operation Rescue; Project Life, an unincorporated association; Crisis Pregnancy Center, an unincorporated association; John Doe(s), Jane Doe(s), the last two 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. 89-CV-973.

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

September 22, 1989.

Butler Allen Clark & Place, Vestal, N.Y., Abigail F. Cousins, New York City, for plaintiffs; Earl D. Butler, of counsel.

Peter J. Hopkins, Chittenango, N.Y., John Broderick, Syosset, N.Y., A. Lawrence Washburn, Jr., Deer Park, N.Y., for defendants.

MEMORANDUM-DECISION AND ORDER FOR PRELIMINARY INJUNCTION

McCURN, Chief Judge.

Presently before the court is a motion by the plaintiffs for a preliminary injunction to bar the defendants from engaging in an allegedly illegal effort to prevent women from obtaining abortions and family planning services at two medical facilities in Broom County, New York. An evidentiary hearing was held on September 21, 1989. The following constitutes this court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

The plaintiffs include two medical facilities, two doctors at the facilities, the management at one facility and a women's organization who are providers of abortion services in Broom County, New York. Plaintiffs also maintain that they represent the interests of women who use these facilities. The defendants are individuals and organizations who are active in the anti-abortion movement and who are allegedly involved in a consistent pattern of illegal conduct at the two plaintiff medical clinics. Attached to the plaintiffs papers are a number of affidavits and attachments which purport to detail the anti-abortion activities of the defendants. Plaintiffs claim, for example, that the defendants have consistently blockaded the abortion clinics, trespassed on plaintiffs' property including actual occupation of offices, jammed telephone lines, engaged in disorderly conduct resulting in arrests, and screamed insulting epithets at clients and staff.

The complaint, which seeks only declaratory and injunctive relief, alleges eight causes of action. The first seven are state law claims for (1) violation of New York Civil Rights Law, § 40c and New York Executive Law § 296; (2) public nuisance; (3) tortious interference with business facilities; (4) trespass; (5) intentional infliction of emotional distress; (6) harassment, and (7) false imprisonment.

The federal question, upon which this court's jurisdiction is based, is presented in the eighth cause of action of the complaint. There, the plaintiffs assert claims pursuant to 42 U.S.C. § 1985(3) based on an alleged conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and the equal privileges and immunities of national citizenship. As stated in paragraph 44 of the complaint:

Defendants conspired together with each other and other parties presently unknown for the purpose of denying women seeking abortions and other family planning services at targeted facilities the equal protection of the laws and the equal privileges and immunities under the law and obstructing travel, in violation of 42 U.S.C. § 1985(3). Defendants are and continue to be motivated by an invidiously discriminatory animus directed at the class of women seeking to exercise their constitutional and legal right to choose abortions and other family planning services at the targeted facilities.

With respect to the federal claims, plaintiffs assert that women traveling interstate to receive abortion services have been affected by the defendants' actions. Complaint at para. 16. Moreover, plaintiffs claim that defendants, by their actions, seek to prevent responsible state and local officials from enforcing civil rights laws, thereby "causing state authorities to violate the New York State Constitution and the 14th Amendment to the Constitution of the United States." Complaint para. 19.

This action was initiated on August 9, 1989, when the plaintiffs sought and received a temporary restraining order from this court enjoining the defendants from engaging in a threatened blockade action on August 9-11 of 1989. The TRO expired on August 21, 1989, when the court, after a hearing, refused to extend the TRO based on the fact that defendants had complied with the order until that time. On August 24, 1989, the plaintiffs again sought and received a TRO due to actions by certain defendants, on August 23, 1989, which included a sit-in demonstration and driveway blockade of plaintiff Epstein's office. The court granted plaintiffs' request for an extension of the temporary restraining order on September 6th after having heard the defendants' objections to such an extension.

Discussion

Standing

At oral argument on September 21, 1989, the defendants for the first time raised the issue of whether the plaintiffs have standing to represent the interests of women who seek to use the plaintiff medical facilities. Defendants assert that by not producing a single woman denied access to a clinic due to the defendants' activities, plaintiffs have failed to allege a justiciable controversy. The defendants are in error. In the recent decision, N.Y. State National Organization for Women v. Terry, 886 F.2d 1339, 1346-1348 (2nd Cir.1989), the Second Circuit held that health care providers have independent standing to assert the rights of their patients to travel freely and to obtain abortion services. The court reasoned that a patient's "enjoyment of those rights is `inextricably bound up with the activity the litigant wishes to pursue,'" and thus, the court could be "assured that the clinics represent the rights and interests of the women seeking their assistance." Id. at 1347; see Singleton v. Wulff, 428 U.S. 106, 114, 118, 96 S.Ct. 2868, 2876, 49 L.Ed.2d 826 (1976). Therefore, the plaintiffs have standing to bring this suit.

Preliminary Injunction

The standard for the issuance of a preliminary injunction in this circuit is well settled. "The party seeking the injunction must show a risk of irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make a fair ground for litigation and a balance of hardships tipping in the movant's favor." Johnson v. Kay, 860 F.2d 529, 540 (2nd Cir.1988). In general, a deprivation of constitutional rights which cannot be repaired by an award of damages, constitutes irreparable injury. See Abdul Wali v. Coughlin, 754 F.2d 1015, 1027, (2nd Cir.1985); see also Buffalo Courier Express v. Buffalo Evening News, 601 F.2d 48, 57 (2nd Cir.1979).

The 42 U.S.C. § 1985(3) Claim

Plaintiffs' claim pursuant to 42 U.S.C. § 1985(3) is the logical starting point for any legal analysis because it is the sole federal question upon which the jurisdiction of the court is based. The complaint asserts that an action pursuant to § 1985(3) is cognizable in this court due to the defendants invidiously discriminatory conspiracy to deprive a class of pregnant women of the constitutional rights of travel and to terminate a pregnancy.

There are four essential elements to a cause of action under 42 U.S.C. § 1985(3): (1) a conspiracy; (2) 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; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338; United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-829, 103 S.Ct. 3352, 3355-56, 77 L.Ed.2d 1049 (1983). Moreover, where the right which is allegedly being violated is solely a right against state interference, such as a Fourteenth Amendment right, the plaintiff must also plead and prove that the conspiracy involved state action of some sort. Id. 463 U.S. at 830-35, 103 S.Ct. at 3357-59.

Right to Travel

Plaintiffs allege that approximately 15 to 20% of the patients seen at the plaintiffs' clinics are out-of-state residents who travel to Broom County, New York, for consultation and medical services. And, that these women, have had their ability to enter the clinics and receive services impeded by the actions of the defendants.

The Supreme Court has long held that the right to interstate travel "is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference." Griffin v. Breckenridge, 403 U.S. 88, 105, 91 S.Ct. 1790, 1800, 29 L.Ed.2d 338 (1971) (citing Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 1328-29, 22 L.Ed.2d 600; United States v. Guest, 383 U.S. 745, 757-60 and n. 17, 86 S.Ct. 1170, 1177-79 and n. 17, 16 L.Ed.2d 239; Twining v. New Jersey, 211 U.S. 78, 97, 29 S.Ct. 14, 18, 53 L.Ed. 97; Slaughter-House Cases, 16 Wall. 36, 79-80, 21 L.Ed. 394 (1872)). In Breckenridge the court held that completely private interference with interstate travel was actionable through 42 U.S.C. § 1985(3) because "the `right to pass...