NOW v. Operation Rescue, Civ. A. No. 89-2968-LFO.

• Decision Date: 31 July 1990
• Docket Number: Civ. A. No. 89-2968-LFO.
• Citation: 747 F. Supp. 760
• Parties: NOW, et al., Plaintiffs, v. OPERATION RESCUE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

747 F. Supp. 760

NOW, et al., Plaintiffs, v. OPERATION RESCUE, et al., Defendants.

Civ. A. No. 89-2968-LFO.

United States District Court, District of Columbia.

July 31, 1990.

Laurence J. Eisenstein, Steven Semeraro, Richard H. Seamon, Covington & Burling, Washington, D.C., Sarah E. Burns, Alison Wetherfield,^* NOW Legal Defense & Educ. Fund Washington, D.C. and New York City, for plaintiffs.

C. Peter Thomas S. Cornell, Amshoff & Amshoff Louisville, Ky., Richard L. Swick, Washington, D.C., Jay Alan Sekulow, Atlanta, Ga., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

An Order filed January 20, 1990 denied defendants' motion to dismiss, granted plaintiffs' motion for summary judgment, and entered a permanent injunction enjoining defendants from, inter alia, "trespassing on, blockading, impeding or obstructing access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia." See Permanent Injunction at 2-3. The injunction was based on reasons to be amplified in a forthcoming Memorandum. This is that Memorandum.

I.

Plaintiffs include four health care facilities that provide abortion services, an organization that operates two such facilities, and five organizations that seek to establish and preserve a woman's right to choose an abortion. Defendants are four organizations and six individuals who are opposed to abortion and its legalization. On October 27, 1989, plaintiffs filed a complaint and an application for injunctive relief, seeking to enjoin planned blockades of plaintiff clinics. A hearing on plaintiffs' application was held on November 7 and 8, 1989, and a preliminary injunction was issued on November 8, 1989. See NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C. 1989). The preliminary injunction was based upon findings that plaintiffs were likely to succeed in proving that defendants had blockaded medical facilities in the past and were likely to do so in the future, and that such blockades violate local prohibitions against trespassing, public nuisance, and tortious interference with business relations. See id. at 304.

The preliminary injunction was limited to certain named clinics in the District of Columbia. Accordingly, on November 8, 1989, plaintiffs filed complaints in federal court in Maryland and Virginia seeking similar injunctive relief in those jurisdictions. See Plaintiffs' Cross-Motion for Summary Judgment at Exhibits A, B, C. The Maryland court entered a preliminary injunction on November 8, after receiving affidavits identical to those introduced at the hearing before this Court. See id. at Exhibit D. In Virginia, a Temporary Restraining Order was entered on November 9, and later extended on November 16. See NOW v. Operation Rescue, 726 F.Supp. 1483, 1486 n. 1 (E.D.Va.1989) ("Virginia Findings"). With the parties' consent, the hearing on plaintiffs' application for a preliminary injunction in Virginia was consolidated with the trial on the merits, pursuant to Federal Rule of Civil Procedure 65(a)(2). See id. at 1486. Plaintiffs presented nine witnesses during a two-day trial on November 16 and 20, including clinic directors from Virginia, Maryland, and the District of Columbia. Defendants presented no witnesses. See id. Following the trial on the merits, the Virginia court entered a Permanent Injunction on November 22, and filed written Findings of Fact and Conclusions of Law on December 6, 1989. See id. at 1483, 1486 n. 1.

In this action, defendants have moved to dismiss plaintiffs' complaint for lack of standing and failure to state a claim. Plaintiffs in turn have moved for summary judgment, arguing that the Virginia court's determination is res judicata and that no material facts remain in dispute. In opposing plaintiffs' summary judgment motion, defendants have argued that the Virginia court's ruling is not entitled to preclusive effect and that defendants' actions are protected by their constitutional right of association and the common law doctrine of justification.

II.

Defendants' motion to dismiss raises two jurisdictional issues: (A) whether plaintiffs have standing to assert their claims and (B) whether jurisdiction over plaintiffs' local law claims is appropriate.

A.

Defendants first argue that plaintiff clinics lack standing to assert the rights of their patients. This argument applies only to the federal claims, as plaintiff clinics' local law claims are based on their own rights. To establish standing to assert the rights of third parties, plaintiff clinics must overcome both constitutional and prudential barriers. First, the clinics must allege a sufficiently concrete "injury in fact" to create a case or controversy under Article III. See Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). Second, the clinics must show that they are "the proper proponents of the particular legal rights on which they base their suit." Id. Based on the facts alleged in the complaint, plaintiff clinics can overcome both of these barriers. The complaint clearly alleges an injury in fact, based on the blockades of plaintiff clinics by defendants. See Complaint at ¶¶ 34-35. Moreover, the clinics are the proper proponents of their patients' abortion rights for two reasons: first, "the constitutionally protected abortion decision is one in which the physician is intimately involved"; and second, patients face practical obstacles to effective advocacy, such as a desire to protect their own privacy and the inherent mootness of any individual claim. See Singleton, 428 U.S. at 117-18, 96 S.Ct. at 2875-76; see also Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir.1987) (holding that clinics providing abortion services have standing to assert the rights of their patients, as those rights are "`inextricably bound up' with the activity the ... clinic desires to pursue") (quoting Singleton, 428 U.S. at 114, 96 S.Ct. at 2874)). The Virginia court reached a similar holding. See Virginia Findings, 726 F.Supp. at 1491.

Defendants' argument that the organizational plaintiffs lack standing is similarly misplaced. The complaint alleges, and defendants have not disputed, that each of the organizational plaintiffs has as members "women who will need to use abortion and family planning clinics in the Washington Metropolitan area." Complaint at ¶¶ 5-8. The organizational plaintiffs therefore have standing to assert the rights of those members. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 6, 108 S.Ct. 2225, 2230, 101 L.Ed.2d 1 (1988) (holding that an association has standing to sue on behalf of its members when those members would have standing to sue on their own behalf); New York State NOW v. Terry, 886 F.2d 1339, 1348-49 (2d Cir.1989) (holding that various abortion rights organizations had standing as representatives of their members to challenge blockades of abortion clinics). The Virginia court likewise found that the organizational plaintiffs had standing. See Virginia Findings, 726 F.Supp. at 1491-92.

B.

Defendants also object to the exercise of pendant jurisdiction over plaintiffs' local law claims. Plaintiffs' local law claims are cognizable in federal court, however, because plaintiffs' federal claims are "not insubstantial" and the federal and state claims would "ordinarily be tried in one judicial proceeding." See NOW v. Operation Rescue, 726 F.Supp. at 304 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966)). The substantiality of plaintiffs' federal claims is evidenced by the Virginia court's judgment entered in plaintiffs' favor on one of those claims. See Virginia Findings, 726 F.Supp. at 1492-93.

III.

Plaintiffs' complaint sets forth five claims: (1) conspiracy to interfere with the right to travel; (2) conspiracy to interfere with the right to privacy; (3) trespass; (4) public nuisance; and (5) tortious interference with business relationships. Based on the prior proceedings in the Virginia litigation and the preclusive effect of that judgment, plaintiffs are entitled to summary judgment on the federal right to travel claim and the local law claims of trespass and public nuisance.¹ The Virginia court conclusively determined that defendants' actions comprise a conspiracy to interfere with plaintiffs' constitutionally protected right to travel. The Virginia court also determined facts which establish that defendants have violated District of Columbia law and are likely to do so in the future.

A.

The following findings of fact made by the Virginia court are relevant to this proceeding:

14. It is indisputable that all defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization. To achieve these goals, it appears from the record that the individual defendants have agreed and combined with one another and with defendant Operation Rescue to organize, coordinate and participate in "rescue" demonstrations at abortion clinics in various parts of the country, including the Washington Metropolitan area. The purpose of these "rescue" demonstrations is to disrupt operations at the target clinic and indeed ultimately to cause the clinic to cease operations entirely. No one has put this point any better than defendant Terry, who in an affidavit, states that "while the child-killing facility is blockaded, no one is permitted to enter past the rescuers.... Doctors, nurses, patients, staff, abortion-bound women, families of abortion-bound women — all are prevented from entering the abortuary while the rescue is in progress." Operation Rescue's literature defines "rescues" as "physically blockading abortion mills with human bodies, to intervene between abortionists and the innocent victims." Operation Rescue, National Day of Rescue — October 29, 1988 (1988) (emphasis in original). By disrupting and blockading family

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