Mississippi Women's Medical Clinic v. McMillan

• Decision Date: 28 February 1989
• Docket Number: No. 88-4311,88-4311
• Citation: 866 F.2d 788
• Parties: MISSISSIPPI WOMEN'S MEDICAL CLINIC, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants Cross-Appellees v. Roy McMILLAN, William Conlee, Individually, and in His Official Capacity as a Police Officer of the City of Jackson, Mississippi, and Mississippi Right To Life, Inc., Defendants-Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 788

866 F.2d 788

MISSISSIPPI WOMEN'S MEDICAL CLINIC, Individually, and on Behalf of All Others Similarly Situated Plaintiffs-Appellants Cross-Appellees v. Roy McMILLAN, William Conlee, Individually, and in His Official Capacity as a Police Officer of the City of Jackson, Mississippi, and Mississippi Right To Life, Inc. Defendants-Appellees Cross-Appellants.

No. 88-4311.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1989.

Shirley Payne, Jackson, Miss., for plaintiffs-appellants cross-appellees.

William Conlee, Jackson, Miss., pro se.

Edward L. Walsh, Mississippi Right to Life, Inc., Jackson, Miss., for Mississippi Right to Life, Inc.

Matthew Moore, City Attorney's Office, Jackson, Miss., for Conley--in his capacity as City Police Officer.

Douglas E. Barfield, Walter E. Wood, Ridgeland, Miss., for Ray McMillan.

Appeals from the United States District Court for the Southern District of Mississippi.

Before WISDOM, GEE and RUBIN, Circuit Judges.

GEE, Circuit Judge:

Mississippi Women's Medical Clinic ("MWMC") appeals the denial by the district court of a preliminary injunction prohibiting abortion protestors from picketing its clinic, contending that the picketers' advocacy abridges the privacy rights of women seeking to have abortions performed there, creates an "atmosphere" that intimidates women patients, and effectively denies them their rights to abortions. The protestors assert their rights to express their views on an issue of public concern in a public forum--the street. The appeal presents a conflict between competing rights declared by the Court to be constitutional ones: freedom of expression and the right to have an abortion.

Background

MWMC wants to protect the right of its clients to obtain an abortion and to do so in utmost privacy. The protestors seek to confront women with the consequences of such a decision before they enter the clinic. On the public sidewalk in front of the clinic, the protestors march carrying signs condemning the slaughter of the unborn and displaying stark photographs of aborted fetuses. According to MWMC, the protestors create sufficient noise to be heard inside the clinic and to dissuade some from having abortions. In addition, MWMC asserts that the protestors have trespassed on its property and vandalized its signs. In consequence, MWMC seeks to prevent the protestors from approaching within 500 feet of the clinic and to control the language employed in their protests, forbidding the use of such terms as "kill," "murder," and "butcher." Only by issuing the preliminary injunction and by moving the protestors away from the clinic, MWMC contends, can women be enabled to receive the care they seek and the clinic's property be rendered secure.

Prerequisites for Issuing a Preliminary Injunction

Our Circuit has termed the remedy that MWMC seeks an "extraordinary" one, holding that "[i]t should only be granted if the movant has clearly carried the burden of persuasion on all four Callaway prerequisites." Mississippi Power & Light v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir.1985). These are:

(1) a substantial likelihood that [MWMC] will prevail on the merits, (2) a substantial threat that [MWMC] will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to [MWMC] outweighs the threatened harm injunction merits to [the protestors] and (4) that granting the preliminary injunction will not disserve the public interest.

See Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). Since the "decision to grant or deny a preliminary injunction is discretionary with the district court[,] the standard we must apply in reviewing [these prerequisites] is whether the district court's decision constitutes an abuse of discretion." Mississippi Power & Light, 760 F.2d at 621. Our review of the record and of case law indicates that MWMC did not carry the burden of persuasion on the Callaway prerequisites and, therefore, that the district court did not abuse its discretion in denying the injunction. Hence we affirm.

A. Likelihood of Success on the Merits.

MWMC contends under 42 U.S.C. Secs. 1983, 1985(3) and 1986 that the protestors are violating the constitutional rights of its potential patients. We examine these statutes in numerical order.

1. Section 1983

A successful claim under Sec. 1983 requires a showing of two elements: (1) deprivation of a right, privilege or immunity secured by the federal laws or Constitution (2) by one acting under color of state law. See Flagg Brothers v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978).

There is no record evidence that anyone has been deprived of a constitutional right to choose an abortion. MWMC argues, though, that the protestors, by their advocacy, created an atmosphere of psychological intimidation. MWMC points out that as the potential patients entered the clinic's property protestors, such as Dr. Beverly McMillan, would stand in front of the driveway and distribute literature and gratuitous counselling to potential patients against having an abortion. In addition, the protestors made so much noise that they could be heard inside the clinic. Some patients became emotionally agitated, and some chose to leave the clinic.

The clinic offers no evidence, however, that the protestors physically restrained potential patients from entering the clinic. ¹ Indeed, the fact that some women did obtain abortions from the clinic demonstrates that, while the atmosphere may not have been the most conducive to doing so, that option remained available. This situation stands in sharp contrast to that of Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980) where the citizens group protesting abortion were enjoined from trespassing in "entering upon the clinic's premises, blocking doors to procedure rooms and blocking access to the Center." Id. at 1048.

In the case before us, MWMC contends that the protestors had no right to create the tense and agitated atmosphere that surrounded the clinic, a position often advanced in the courts and as often rejected. Rather, "[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 2731, 41 L.Ed.2d 842 (1974) (quoting Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572 (1969)). Unlike Northern Virginia Women's Medical Center, the clash in this case is one between constitutional rights defined by the Supreme Court: an old one tracing its roots to the speech clause of the First Amendment and before, and a new one stemming from Roe v. Wade.

Because no local ordinance attempts to limit the public expressions of the protestors, and also because potential patients could come and go as they pleased and thus could avoid the communications, it is not possible for us to choose between those who believe in, and may wish to exercise, the right to have an abortion and those who believe that other rights are involved and wish to make this opinion known peaceably, if loudly.

The clash between these competing groups is a private one. MWMC fails to show that the protestors were acting under color of state law and as a result fails to satisfy the second prong needed to establish a claim under Sec. 1983.

As evidence of state involvement in depriving its potential patients of their constitutional rights, MWMC showed that William Conlee, one of the protestors, was a police patrolman and suggested that he exercised apparent authority in behalf of the Jackson, Mississippi Police Department. ² Moreover, the clinic claims that the police department did nothing to discourage the public perception that it supported the protestors. The record indicates, however, that the purported incidents of state involvement were either unsubstantiated or so inconsequential as to be meaningless. MWMC first points out that Mr. Conlee wrote a "threatening" letter ³ to one of the clinic's doctors on a letterhead identified with the Jackson Police Department. Upon inspection, the letterhead does bear the address of the Jackson Police Department. It is clear, however, that the letter is from a group that, while affiliated with the police department, is still distinct from it. Written in large letters across the top of the page are the words "Jackson Police Officers Christian Fellowship." There is no indication that this chapter of the Christian Fellowship sets policy for the police department or in fact affects the official behavior of any of its members.

Rather, on deposition the clinic's director conceded that the police had never failed to answer any call by the clinic to control the protestors. In addition, she acknowledged that the police officer, one Bradford, whom she had complained blocked the clinic's driveway for 30-45 minutes and spoke to the protestors, actually was responding to a call by the clinic. Officer Bradford's actions seem more properly interpreted as a stabilizing influence in controlling these opposing factions. Finally, we note that the clinic's director acknowledged that she never saw Mr. Conlee in uniform while picketing out in front of the clinic. On one occasion only Mr. Conlee wore his patrolman's uniform in public--at a trial in connection with these matters, ⁴--but this isolated instance does not change our overall evaluation that there is no evidence that Mr. Conlee or any other picketer acted, acutally or apparently, with authority of the Jackson Police Department.

In deciding whether there has been the state action necessary to support a claim under Sec. 1983, we have required that the state official affirmatively act in support of the violation. Thus "a person acts under color of state law only when exercising power 'possessed by virtue of state law and made possible only...