Lewis v. Pearson Foundation, Inc.

• Decision Date: 07 September 1990
• Docket Number: No. 88-1293,A-A-A,88-1293
• Citation: 908 F.2d 318
• Parties: Warna Irene LEWIS, Appellant, v. PEARSON FOUNDATION, INC., Robert J. Pearson, Kathleen Pearson, John M. Byers, Mother and Unborn Baby Care of St. Louis, d/b/aPregnancy Problem Center, Rita Roberson, Richard Chrismer, Marie Becker, Mary Elizabeth Kretschmer, Susan Schlesinger, Thomas Rohan, and Elizabeth Doe, a fictitious name, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 318

908 F.2d 318

59 USLW 2045

Warna Irene LEWIS, Appellant, v. PEARSON FOUNDATION, INC., Robert J. Pearson, Kathleen Pearson, John M. Byers, Mother and Unborn Baby Care of St Louis, d/b/a A-A-A Pregnancy Problem Center, Rita Roberson Richard Chrismer, Marie Becker, Mary Elizabeth Kretschmer Susan Schlesinger, Thomas Rohan, and Elizabeth Doe, a fictitious name, Appellees.

No. 88-1293.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 22, 1988.

Decided July 10, 1990.

Rehearing Granted Opinion

Vacated Sept. 7, 1990.

Tom Mendelson, St. Louis, Mo., for appellant.

David C. Drury, St. Louis, Mo., for appellees.

Before JOHN R. GIBSON, Circuit Judge, and FLOYD R. GIBSON and ROSS, Senior Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Warna Lewis, pregnant and desiring an abortion, looked in the Yellow Pages directory under "Abortion Information and Services" and found an advertisement for the "AAA Pregnancy Problem Center" in St. Louis, Missouri. After Lewis discovered that the Center was a mock abortion clinic, run by persons opposed to abortion, she brought this action under 42 U.S.C. Sec. 1985(3) (1982). Lewis alleges that she was injured by a private conspiracy in which the staff of the Center visited a "lacerating psychological attack" upon her in an attempt to prevent her and others like her from carrying out the decision to have an abortion. On defendants' motion to dismiss, the district court held that while section 1985(3) supports actions against private conspiracies, Lewis had not sufficiently alleged that the defendants possessed the class-based, invidiously discriminatory animus required by section 1985(3). On appeal, Lewis contends that she, as a member of a class of pregnant women desiring an abortion, is entitled to assert a claim under the statute. Because we conclude that Lewis has properly asserted a claim under section 1985(3), we reverse and remand for further proceedings.

Lewis' complaint alleges that on September 29, 1986, she contacted the Pregnancy Problem Center after reading its advertisement in the Southwestern Bell Yellow Pages directory under the heading "Abortion Information and Services." Lewis was late in her first trimester of pregnancy and wanted an abortion. In reply to Lewis' telephone query, a staff member at the Center stated that they would "help her all they could," and invited Lewis to come in to take a free pregnancy test. Lewis scheduled an appointment for October 1, 1986.

When Lewis arrived for her appointment, she was directed to produce a urine sample for the pregnancy test. Lewis was then ushered into a room where an anonymous staff member, designated "Elizabeth Doe" in Lewis' complaint, activated a slide presentation before excusing herself. The color slides depicted scenes which were said to illustrate the abortion process. These included pictures of dismembered fetuses and abortions being performed by means of crude-appearing instruments. The slide show also contained intermittent family scenes.

Lewis alleges that after viewing this presentation, she confronted Doe with her feelings of anger, anxiety, and distress. After Doe suggested that Lewis rely on religious faith, Lewis insisted that she still wanted an abortion. Doe finally offered to arrange an abortion with "a respectable doctor." Upon Lewis' acceptance of the offer, Doe left the room and then returned with a note indicating that Lewis had an appointment on October 3 with a doctor at St. John's Mercy Medical Center in St. Louis.

When Lewis arrived at the hospital on October 3, she discovered that it was a Roman Catholic institution and that its doctors did not perform abortions. She obtained an abortion elsewhere one week later. Roughly a month thereafter, on November 11, Doe telephoned Lewis, stating that she had called to find out when the baby was due and to check whether "everything was alright" with Lewis. Lewis asserts that this call upset her greatly, as did the harassment she experienced at the hands of the Pregnancy Problem Center.

Lewis proceeded to sue the Pearson Foundation, Inc., which organized and ran the Pregnancy Problem Center, and several other defendants involved in the operation of the clinic, including staff member Doe. Lewis alleges that they conspired to deprive her of the equal protection of the law through denial of her "constitutionally granted rights of privacy, autonomy, personhood, and liberty in exercising a choice as to the continuation or discontinuation of her pregnancy." Lewis further claims that the conspiracy was "motivated by an invidiously discriminatory animus toward a class of women each of whom, like [Lewis] herein, has made the decision in answer to an unwanted pregnancy to terminate the pregnancy by a lawful abortion." Lewis asserts that she has been injured in suffering mental distress, torment, anguish, morbid recall, sadness, embarrassment, humiliation, and anger. She seeks actual damages of $150,000 and punitive damages of up to $10 million.

Lewis also alleges that despite receiving complaints about the methods of fake abortion clinics, and specifically those of the Pregnancy Problem Center, the Missouri Attorney General encouraged appellees' alleged conspiracy by publicly announcing that their advertising did not constitute misrepresentation. Lewis alleges that the Attorney General aided the conspiracy by refusing to invoke broad state statutory and common law remedies available to prevent the use of deceptive advertising practices, and that he did this either because of "his personal concurrence" with the acts of the Pregnancy Problem Center and other "mock abortion clinics," or because of "his desire not to displease any element of his pro-life constituency."

Various defendants filed motions to dismiss the complaint for failure to state a claim. They argued that while Lewis had asserted her action against private persons, 42 U.S.C. Sec. 1985(3) requires that a plaintiff allege state action in order to assert fourteenth amendment claims for violations of rights to liberty and privacy. Granting these motions to dismiss, the district court relied in particular on Roe v. Abortion Abolition Society, 811 F.2d 931 (5th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 145, 98 L.Ed.2d 101 (1987), which rejected a claim under section 1985(3) charging defendants with entering into a religiously motivated conspiracy to deny plaintiffs' rights of education, freedom of choice, privacy, and travel. Id. at 937. The district court concluded that because Lewis alleged only that defendants acted out of moral-religious beliefs similar to those supposedly held by the defendants in Abortion Abolition Society, her complaint failed to establish the class-based discriminatory animus against which section 1985(3) was intended to protect. The court also held that Lewis' plaintiff class, composed of women desiring abortions, did not possess a unifying common characteristic distinguishing it from the remainder of the population.

On appeal, Lewis argues that her complaint, alleging conspiracy against her as a woman for the purpose of denying her and other women their right under the fourteenth amendment to choose to have an abortion, states a valid claim for relief under 42 U.S.C. Sec. 1985(3). The Pearson Foundation and other defendants appeal, urging, among other things, that Roe v. Wade is wrongly decided.

I.

We first treat appellees' argument that Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and the case law developed under it, are wrongly decided. Since the case before us was argued, the Supreme Court has decided two cases which have recognized the continuing viability of Roe v. Wade. In Webster v. Reproductive Health Services, --- U.S. ----, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), Chief Justice Rehnquist stated that the case afforded "no occasion to revisit the holding of Roe," id. 109 S.Ct. at 3058, despite the urging of Justice Scalia, in a separate concurrence, to overrule Roe, id. at 3064 (Scalia, J., concurring in part and concurring in the judgment). See also Hodgson v. Minnesota, --- U.S. ----, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990). Thus, Roe v. Wade both controls our decision and establishes the fundamental rights upon which Lewis' claim is based.

II.

Appellees argue that Lewis must allege state action in order to assert her claim under 42 U.S.C. Sec. 1985(3). ¹ In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court held that section 1985(3), on its face, omits any requirement of state action and that the statute could, in some situations, reach wholly private conspiracies. Id. at 97, 101, 91 S.Ct. at 1796, 1797. Since Griffin, the Court has significantly refined the scope of the cause of action established by 42 U.S.C. Sec. 1985(3) by stating that:

Sec. 1985(3) ... "provides no substantive rights itself" to the class conspired against. Great American Federal Savings & Loan Assn. v. Novotny, 442 U.S. 366, 372 [99 S.Ct. 2345, 2349, 60 L.Ed.2d 957] (1979). The rights, privileges, and immunities that Sec. 1985(3) vindicates must be found elsewhere, and here the right claimed to have been infringed has its source in the First Amendment. Because that Amendment restrains only official conduct, to make out their Sec. 1985(3) case, it was necessary for respondents to prove that the State was somehow involved in or affected by the conspiracy.

United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983). To determine whether Lewis must plead state action in order to prosecute her claim under section 1985(3), therefore, we must look not to the statute itself but rather to the nature of the underlying constitutional right which she seeks to assert through the statute. In Griffin, for example, the rights enforced were derived from the thirteenth amendment and the constitutional right of interstate travel, which are assertable against...