Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc.

• Decision Date: 15 October 1998
• Docket Number: A-Z,No. 97-0171,RESCUE-NATIONAL,97-0171
• Citation: 975 S.W.2d 546,41 Tex. Sup. Ct. J. 1071
• Parties: 41 Tex. Sup. Ct. J. 1071 OPERATIONa/k/a Operation Rescue, Rescue America, Dallas Rescue, Rev. Phillip L. "Flip" Benham, Bob Jewitt, Don Treshman, and Rev. Keith Tucci, Petitioners, v. PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, INC., AAA Concerned Women's Center, Inc., Aaron's Family Planning Clinic of Houston, Inc.,Women's Health Services, P.A., Downtown Women's Center a/k/a Downtown Women's Clinic, et al., Respondents.
• Court: Texas Supreme Court

Page 546

975 S.W.2d 546

41 Tex. Sup. Ct. J. 1071

OPERATION RESCUE-NATIONAL a/k/a Operation Rescue, Rescue America, Dallas Rescue, Rev. Phillip L. "Flip" Benham, Bob Jewitt, Don Treshman, and Rev. Keith Tucci, Petitioners, v. PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, INC., AAA Concerned Women's Center, Inc., Aaron's Family Planning Clinic of Houston, Inc., A-Z Women's Health Services, P.A Downtown Women's Center a/k/a Downtown Women's Clinic, et al., Respondents.

No. 97-0171.

Supreme Court of Texas.

Argued Dec. 2, 1997.

Decided July 3, 1998.

Rehearing Overruled Oct. 15, 1998.

Cactus Jack Cagle, Houston, James Austin Pinedo, San Antonio, Jay Alan Sekulow, Washington, DC, Benjamin W. Bull, Scottsdale, AZ, Richard W. Schmude, Tomball, for Petitioners.

Neal S. Manne, Kathy D. Patrick, Collyn A. Peddie, Houston, for Respondents.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, ENOCH, OWEN, ABBOTT and HANKINSON, Justices, joined.

Petitioners challenge on procedural and constitutional grounds a permanent injunction restricting their anti-abortion demonstrations at certain clinics and residences in Houston. We conclude that portions of the injunction infringe upon petitioners' freedom of expression guaranteed by the First Amendment to the United States Constitution and by Article I, Section 8 of the Texas Constitution. We therefore modify the judgment of the court of appeals. ¹

I

Petitioners ² and others planned to stage massive, concerted demonstrations against abortion providers in Houston coincident with the 1992 Republican National Convention there both to protest abortion and to pressure convention delegates to retain a pro-life plank in their party's platform. Petitioners agreed to join together in picketing abortion clinics and the homes of physicians who worked for the clinics. Petitioners also planned blockades and "rescues" designed to shut down clinics by having protesters conduct sit-ins on clinic premises or chain themselves to doors and fixtures. Petitioners were not furtive; demonstration leaders announced their plans at a press conference prior to the Convention.

To forestall these plans, respondents ³ and others--various clinics and physicians targeted by petitioners, plus one business adjacent to Planned Parenthood--obtained a temporary restraining order prohibiting, among other things, demonstrations within 100 feet of the clinics. Soon after the order issued, petitioners Tucci, Benham, and Jewitt, along with four other individuals, intentionally violated the 100-foot buffer zone and were jailed. On their application to this Court for writ of habeas corpus, we ordered them released, holding that the 100-foot buffer zone created by the temporary restraining order violated the protestors' freedom of expression guaranteed by the Texas Constitution. ⁴

Meanwhile the district court issued a temporary injunction nearly as restrictive as the temporary restraining order. Among its provisions, the temporary injunction retained the 100-foot buffer zone but allowed four demonstrators to approach to within 25 feet of the clinics' entrances. Additionally, one demonstrator could approach patients going to and from the clinics to talk with them--"sidewalk counsel" in the demonstrators' vernacular--but the demonstrator was required to remain at least 10 feet from the patient unless invited to come closer. The record does not reflect whether the temporary injunction was ever enforced, although many of the protesters' activities described in the record clearly violated its prohibitions. Petitioners did not appeal the temporary injunction.

More than two years after the convention, the parties proceeded to trial before a jury on respondents' amended pleadings for a permanent injunction and respondent Planned Parenthood's claims for actual and punitive damages. For six weeks respondents offered evidence of petitioners' activities before, during, and after the convention. There was evidence that petitioners demonstrated at all respondents' clinics or residences during the Convention, at times mustering hundreds of protesters. Many of the demonstrations were entirely peaceful, with some protesters picketing the premises while others merely sang, prayed, or preached. At other times, however, demonstrations were more aggressive. Protesters yelled, used bull-horns, and played loud music to disturb people in clinics and homes. Protesters tried to block access to clinics by lying down in front of an entrance en masse, and even invaded the premises and chained their necks to cement blocks or to fixtures within the clinic. Bottles and rocks were thrown at buildings, and locks were glued shut. Although the perpetrators were never identified, several clinics during the convention and afterwards had butyric acid thrown into their offices, permeating the office with a nauseating smell that proved impossible to remove completely.

The protesters did not solely target the premises. Some protesters also acted as "sidewalk counselors", approaching people who drove or walked towards clinics and offering them anti-abortion literature. These encounters were often peaceful efforts to convey information in a helpful, persuasive way, but sometimes protesters were confrontational, coming within inches of patients' faces and shouting at them, causing respondents to have to provide "escorts" to shield patients from protesters. The converging patients, escorts, and demonstrators pushed, prodded, and yelled uncontrollably, creating a chaotic environment. As a result, patients would enter clinics visibly shaken, crying, and nervous. Physicians reported increased respiration, heart rate, and blood pressure among such patients, which at times required sedatives to treat. These symptoms, some of which patients experienced even in the absence of protesters, became more acute when the demonstrations occurred. Additionally, physicians and their families were threatened with serious harm, and at least one shoving match erupted at a physician's home between his family and protesters. All these activities were more frequent during the convention, but some were continuing at the time of trial.

The jury found that petitioners damaged respondents by conspiring to interfere with the clinics' businesses and to violate the physicians' privacy or property rights. The jury also found that petitioners wrongfully interfered with the clinics' ability to provide medical services to existing and prospective patients. The jury found that four petitioners each caused respondent Planned Parenthood $204,585 in compensatory damages, and assessed a total of $1,010,000 in punitive damages. Following a two-day hearing regarding injunctive relief, the district court rendered judgment awarding Planned Parenthood $204,585 jointly and severally as against four petitioners and punitive damages found by the jury, and granting a permanent injunction restricting demonstrations by petitioners. The district court concluded that the injunction would "serve several significant governmental interests", specifically:

a. ensuring that women have access to pregnancy counseling and abortion services;

b. ensuring that clinics can perform abortions safely and without increased medical risks;

c. public safety and order, including the free flow of traffic on public streets and sidewalks;

d. protection of property rights;

e. protection of physicians' residential privacy;

f. ensuring the psychological and physical well-being of patients seeking medical services from the clinics, and;

g. ensuring that competing constitutional rights of groups with differing viewpoints and interests are balanced equitably.

The injunction prohibited petitioners from:

A. Entering without consent upon or damaging any part of the [respondent clinics'] premises, facilities and parking lots....

B. Blocking or attempting to block, barricade, or in any other manner obstruct the entrances to, or the premises of [respondent clinics].

C. Inhibiting, impeding, obstructing or interfering with, or attempting to inhibit, impede, or obstruct or interfere with the free and unmolested ingress and egress of persons (either pedestrian or vehicular) to and from the facilities and parking lots and the streets and sidewalks adjacent to the facilities and parking lots of [respondent clinics].

D. Touching, physically abusing, intimidating, or harassing any individual attempting to enter or exit the facilities or parking lots of [respondent clinics].

E. Demonstrating [defined as publicly displaying, manifesting, or expressing one's feelings or opinions by oral or other expression, including "sidewalk counseling"] within the following areas:

1. Planned Parenthood (3601 Fannin, Houston, Texas)--(a) A zone around the clinic facility (from the easternmost edge of the facility on Berry, along Fannin, and to the easternmost edge of the clinic on Windbern) that extends 26 feet from the edge of the outermost facility structure (building or gate) into the streets of Berry, Fannin and Windbern. (b) A zone 15 feet from either side of the entrance to the Berry street parking lot that extends from the edge of the parking lot across Berry street to the inside edge of the south sidewalk on Berry. (c) A zone around the Fannin parking lot (from the westernmost edge of the lot on Berry around to a point 15 feet south of the Fannin entrance to the lot) that extends from the edge of the parking lot to the outermost edge of the adjacent sidewalks on Berry and Fannin. (d) A corridor 15 feet wide extending across Fannin (east/west) on the south side on the intersection. See Exhibit "C."

2. Houston Women's Clinic (4820 San Jacinto, Houston, Texas)--A zone around the clinic property (from the westernmost edge of the property on San Jacinto to the northernmost edge of the property on Arbor) extending 17 feet from the property line in to the streets of San Jacinto and Arbor. See Exhibit "D....