Feminist Women's Health Center v. Blythe

Citation39 Cal.Rptr.2d 189,32 Cal.App.4th 1641
Decision Date08 March 1995
Docket NumberNo. C011874,C011874
PartiesFEMINIST WOMEN'S HEALTH CENTER, Plaintiff, Cross-Defendant and Respondent, v. Don BLYTHE, et al., Defendants, Cross-Complainants and Appellants.
CourtCalifornia Court of Appeals

[32 Cal.App.4th 1652] Michael D. Imeld, Mike Millen, and David L. Llewellyn, for defendants, cross-complainants and appellants.

Dickstein & Merin, Mark E. Merin, and Fred J. Hiestand, for plaintiff, cross-defendant and respondent.

SCOTLAND, Associate Justice.

In Feminist Women's Health Center v. Blythe (1993) 17 Cal.App.4th 1543, 22 Cal.Rptr.2d 184, we addressed defendants' challenges to the trial court's issuance of a permanent injunction imposing time, place and manner restrictions on the activities of antiabortion demonstrators at plaintiff's Sacramento clinic, and to the court's order awarding plaintiff attorney fees pursuant to Code of Civil Procedure section 1021.5. 1

Rejecting defendants' attack on the propriety and scope of the permanent injunction, we concluded: the evidence supported a finding that their conduct posed a significant threat of harm to plaintiff's patients, infringed upon the patients' right to privacy, and would continue if not enjoined permanently; the designation of a "speech free zone" in front of plaintiff's clinic and the building's private parking lot driveway was based not upon the content of defendants' speech but upon conduct of defendants which was unprotected by the First Amendment to the United States Constitution and article I, section 2 of the California Constitution; and the injunction was tailored narrowly to protect the patients' privacy interest while providing defendants with ample opportunity to communicate their antiabortion message.

Upholding the attorney fee order as to all defendants except John Walker and Operation Rescue, we concluded: the record supported the trial court's finding that plaintiff did not have a sufficient financial interest in this [32 Cal.App.4th 1653] litigation to preclude an attorney fee award and that plaintiff's primary motivation in seeking the injunction was to further the public interest of protecting its patients' constitutional rights to abortion by ensuring that their access to abortion services was not restricted unlawfully; and the attorney fee award would not operate to chill the constitutional rights to freedom of speech because even the most naive person would have known defendants' conduct--obstructing access to the clinic and engaging in acts of assault and harassment to prevent women who had expressed disinterest in defendants' views from exercising the constitutional right to abortion--was not protected by the First Amendment to the United States Constitution or by article I, section 2 of the California Constitution, and because the attorney fee order did not prevent defendants from continuing to demonstrate and exercise their freedom of speech within the lawful limits set forth in the injunction.

We reversed the attorney fee order as to defaulting defendants Walker and Operation Rescue because plaintiff's complaint did not demand such attorney fees and Code of Civil Procedure section 580 precludes an award against a defaulting defendant which exceeds the relief demanded in the complaint.

The unpublished portions of our opinion rejected defendants' contentions that the trial court erred in ruling on the admissibility of certain evidence and that the court's statement of decision is inadequate.

In Reali v. Feminist Women's Health Center (1994) 512 U.S. 1249, 114 S.Ct. 2776, 129 L.Ed.2d 888, the United States Supreme Court vacated our judgment and remanded the matter to us for further consideration in light of Madsen v. Women's Health Center (1994) 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593, which was decided after our opinion in Feminist Women's Health Center v. Blythe, supra, 17 Cal.App.4th 1543, 22 Cal.Rptr.2d 184. In Madsen, a case involving an injunction which prohibited antiabortion protesters from demonstrating in certain places and in various ways outside a health clinic that performed abortions, the Supreme Court set forth and applied a standard for evaluating the constitutionality of content-neutral injunctions which restrict speech.

At our invitation, the parties in this case have submitted briefs addressing what effect the holding in Madsen has on the issues raised by defendants. Having complied with the directive of the United States Supreme Court, we conclude that application of the standard of review set forth in Madsen does not alter the outcome we reached in Feminist Women's Health Center v. Blythe, supra, 17 Cal.App.4th 1543, 22 Cal.Rptr.2d 184. Accordingly, we shall republish our opinion therein with modifications occasioned by the Supreme Court's holdings in Madsen.

[32 Cal.App.4th 1654]


Having undertaken " 'an independent examination of the whole record' in order to

make sure 'that the judgment does not constitute a forbidden intrusion on the field of free expression,' " (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-501, 507-511, 104 S.Ct. 1949, 1958-1960, 1963-65, 80 L.Ed.2d 502, 515-517, 521-523), we find that the evidence supports the judgment. Summarized in the light most favorable to the judgment, and stated in the present tense as they existed at the time of the trial court hearings in this action, the facts are as follows

Plaintiff is a nonprofit corporation operating four medical clinics in Northern California, including one located on J Street in Sacramento (hereafter "the clinic") which is the subject of the injunction in this case. The clinic is open six days a week and provides gynecological health care, birth control services, pregnancy testing and screening, sexually transmitted disease testing and screening, and abortions. The clinic is on the second floor of a medical building in which several doctors' offices and a pharmacy also are located. The front entrance of the building opens onto a sidewalk running parallel to J Street along the entire length of the building and extending from the front of the building to J Street. The back entrance opens onto a 40-space parking lot to which there is access from I Street. Signs posted in the parking lot state that it is reserved for the use of tenants of the building and their customers and that trespassers will be prosecuted under Penal Code section 602 (trespassing).

Defendants are Jay Baggett, Don Blythe, Murray Lewis, Theresa Reali, John Stoos, John Walker and Operation Rescue (hereafter we shall refer to these parties collectively as "defendants"). According to the record, Operation Rescue is a national antiabortion group whose members are willing to risk arrest in an effort to blockade abortion clinics and make it impossible for patients to enter medical facilities where abortions are performed. There is no evidence that any of the individual defendants are members of, or affiliated with, Operation Rescue.

The clinic opened in June 1987. Defendants commenced antiabortion demonstrations there in early 1988. Every Saturday, one or more of the defendants and others would arrive at the clinic and use various techniques in an effort to counsel patients and persuade or stop them from submitting to abortions. These techniques included picketing in front of the medical building and in the parking lot, distributing antiabortion literature both inside and outside of the medical building, blocking or impeding entrance to the building and the parking lot, hitting the hoods of cars entering the parking [32 Cal.App.4th 1655] lot, blocking the doors of arriving patients' vehicles in the parking lot so that patients had difficulty getting out and entering the clinic, following patients in order to give them literature even if the patients indicated they were not interested, stepping into the paths of patients as they approached the clinic, urging patients not to "kill" their babies, shouting "murder, murder, murder" at patients, and pointing cameras at them.

The antiabortion demonstrations have caused problems for patients trying to enter the clinic. As previously noted, among other things demonstrators have blocked patients at the entrance to the medical building and have refused to leave. The clinic has received telephone calls from patients in nearby phone booths complaining they were unable to enter the clinic. When clinic staff offered to help and went out to escort those patients into the building, the patients sometimes could not be found. Other patients rescheduled appointments to avoid the demonstrations and called the clinic to request escort assistance into the building. Several times, police assistance has been necessary to stop blocking of the parking lot and building entrance and other activities of the demonstrators. After the district attorney's office declined to prosecute defendants who had been arrested for trespass, the parking lot "became a sort of battleground," and patients were unable to get out of their cars or enter the building without being subjected to the conduct summarized above.

The noise made by picketing demonstrators and the confrontations and other activities initiated by defendants and others at the clinic have upset and agitated clinic patients. In some instances, patients have been reduced to tears. This heightened level of

anxiety has required that abortion patients receive greater amounts of medication and has lengthened the time necessary to perform abortion procedures, thereby increasing the risks to patients. Heightened anxiety of staff members, including the doctors performing abortions, has impaired their concentration, further increasing the risks to patients

On January 6, 1989, plaintiff obtained a temporary restraining order imposing time, place and manner restrictions on the antiabortion...

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