National Abortions Federation v. Operation Rescue

• Decision Date: 29 October 1993
• Docket Number: No. 90-55199,90-55199
• Citation: 8 F.3d 680
• Parties: NATIONAL ABORTIONS FEDERATION, et al., Plaintiffs-Appellants, v. OPERATION RESCUE; Jeff White; Joseph Foreman; Dr. Randy Adler; John & Jane Does 1-100, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 680

8 F.3d 680

62 USLW 2284

NATIONAL ABORTIONS FEDERATION, et al., Plaintiffs-Appellants, v. OPERATION RESCUE; Jeff White; Joseph Foreman; Dr. Randy Adler; John & Jane Does 1-100, Defendants-Appellees.

No. 90-55199.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1990.

Submission Withdrawn Dec. 13, 1991.

Resubmitted Oct. 22, 1993.

Decided Oct. 29, 1993.

Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, CA, Betty Wheeler, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, Paul Persons, Chico, CA, for plaintiffs-appellants.

Victor L. Smith, Los Angeles, CA, Samuel B. Casey, Whittier, CA, Cyrus Zal, Folsom, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUG, and TROTT, Circuit Judges, and REED, ^* District Judge.

HUG, Circuit Judge:

This is an appeal from the dismissal of a class action seeking injunctive and declaratory relief to prevent Operation Rescue and others from interfering with women's access to abortion clinics and preventing and hindering state law enforcement officials from securing to women the ability to exercise that constitutional right, 721 F.Supp. 1168.

During the pendency of this appeal, the United States Supreme Court granted certiorari in a case involving a similar situation, in which abortion clinics and organizations having members who wish to use the clinics brought an action against Operation Rescue for blocking the access of women who sought the services of the clinic. That case presented issues of whether provisions of the Ku Klux Klan Act, codified at 42 U.S.C. § 1985(3), could be invoked as a basis for relief. Nearly identical issues are involved in this case. Therefore, submission of this case was withdrawn pending the decision of the United States Supreme Court. The Court has rendered its decision in Bray v. Alexandria Clinic, 506 U.S. ----, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), and we hereby resubmit this case.

The Supreme Court in Bray held that the first clause of section 1985(3), the "deprivation" clause, did not provide a federal cause of action against persons obstructing access to abortion clinics. The Court declined to decide whether the second clause of section 1985(3), the "hindrance" clause, provided a federal cause of action. It held that the issue was not properly before the Court and, thus, remanded the case for further proceedings. Bray, --- U.S. at ----, 113 S.Ct. at 765, 122 L.Ed.2d at 56.

The Bray decision forecloses the plaintiffs' claims under the first clause of section 1985(3), but leaves open for our consideration the plaintiffs' claims under the "hindrance" clause.

I. FACTS

The named plaintiffs-appellants are 12 health care providers, a not-for-profit corporation primarily consisting of member abortion providers, the membership organization of California National Organization of Women ("NOW"), a medical director of a health care provider, and two women denied access to non-abortion related family planning services and gynecological care furnished by such providers (collectively "Federation"). The defendants-appellants include Operation Rescue, a nationwide association that is opposed to abortion, and five alleged individual "blockade" organizers (collectively "Operation Rescue").

The Federation appeals the district court's dismissal of its two federal claims, based on 42 U.S.C. § 1985(3), and six pendent state claims, ¹ as well as denial of its motion for reconsideration or, alternatively, for leave to file a second amended complaint.

The order dismissing the first amended complaint was granted pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief. Review for failure to state a claim upon which relief can be granted is de novo. See, e.g., Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). Review is limited to the contents of the complaint and all allegations of material fact are accepted as true and construed in the light most favorable to the plaintiffs. Id. A Rule 12(b)(6) dismissal is inappropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Federation also appeals the denial of its alternative motion for leave to amend its complaint, pursuant to Fed.R.Civ.P. 15(a). Review is for an abuse of discretion. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987).

II. SUPREME COURT PRECEDENT

The alleged federal cause of action was brought under the first two clauses of section 1985(3). These clauses provide a civil cause of action If two or more persons ... conspire ... 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws;....

The first clause is commonly designated the "deprivation" clause; the second as the "prevention" or "hindrance" clause. We shall refer to the latter as the "hindrance" clause.

A. Deprivation Clause

In order to state a cause of action under the deprivation clause, the conspiracy must be for the purpose of depriving the person or class of persons of the "equal protection of the laws or of equal privileges and immunities under the laws."

The Supreme Court in Bray stated:

Our precedents establish that in order to prove a private conspiracy in violation of the first clause of § 1985(3), a plaintiff must show, inter alia, (1) that "some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action," Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L.Ed.2d 338, 91 S.Ct. 1790 [1798] (1971), and (2) that the conspiracy "aimed at interfering with rights" that are "protected against private, as well as official, encroachment," Carpenters v. Scott, 463 U.S. 825, 833, 77 L.Ed.2d 1049, 103 S.Ct. 3352 [3358] (1983).

--- U.S. at ----, 113 S.Ct. at 758, 122 L.Ed.2d at 45. The plaintiffs' complaint under the deprivation clause was based upon the theory that either women in general or women seeking abortions constituted a protected class under the deprivation clause. The Bray opinion forecloses this assertion. The Court held that the phrase "otherwise class-based, invidiously discriminatory animus" could not apply to a class of women seeking abortions because they were not a protected class, and could not apply to women as a whole because the animus was not directed toward women but toward abortion. Bray, --- U.S. at ----, 113 S.Ct. at 759, 122 L.Ed.2d at 46.

Further, the Bray opinion held that the deprivation clause requires "an intent to deprive persons of a right guaranteed against private impairment." Id. --- U.S. at ----, 113 S.Ct. at 762, 122 L.Ed.2d at 49. The Court held the right to abortion was guaranteed against state impairment, but not private impairment. Id. --- U.S. at ---- - ----, 113 S.Ct. at 763-64, 122 L.Ed.2d at 51-52 The Court also held that although the right of interstate travel is a right constitutionally protected against private impairment, that right was not the purpose of the alleged conspiracy. The Court stated that

A conspiracy is not "for the purpose" of denying equal protection simply because it had an effect upon a protected right. The right must be "aimed at," ... That was not shown to be the case here, and is on its face implausible. Petitioners oppose abortion and it is irrelevant to their opposition whether the abortion is performed after interstate travel.

Id. --- U.S. at ---- - ----, 113 S.Ct. at 762-763, 122 L.Ed.2d at 50-51.

The Court also held that plaintiffs failed to establish a conspiracy to violate the right to interstate travel for a second reason. The guarantee of the right of interstate travel protects against two burdens, neither of which was established. The two burdens are the erection of actual barriers to interstate travel and treating interstate travelers differently from intrastate travelers. There was no indication of either in Bray. Id. --- U.S. at ----, 113 S.Ct. at 763, 122 L.Ed.2d at 51.

The substantive holding of the Court in Bray was that a cause of action under the deprivation clause did not exist for two reasons--the lack of a protected class and the lack of an alleged interference with a right guaranteed against private impairment. Though the application of the hindrance clause was discussed, the claim under that clause was remanded for further proceedings.

Justice Scalia wrote the opinion of the Court, in which Chief Justice Rehnquist and Justices White, Kennedy, and Thomas concurred in its entirety. Justice Souter concurred in part and dissented in part. He concurred in the holding that no cause of action was stated under the deprivation clause and agreed that the case should be remanded for consideration of whether a cause of action existed under the hindrance clause. In his partial dissent, he disagreed, however, with the analysis of the hindrance clause that was expressed in the dictum of Justice Scalia's opinion. Id. --- U.S. at ---- - ----, 113 S.Ct. at 769-76, 122 L.Ed.2d at 59-67.

B. Hindrance Clause

The Bray case left open for later consideration the interpretation of the hindrance clause, but provides conflicting views on the issue. As we look to the opinions in the Bray case for guidance as to the intention of the Court, we are left with a perplexing situation. Given Justice White's resignation, four justices have indicated in dictum that the hindrance clause should be interpreted with the same restrictions as the deprivation clause and four...