Pro-Choice Network of Western New York v. Schenck

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before NEWMAN, Chief Judge, OAKES, MESKILL, KEARSE, WINTER, MINER, ALTIMARI, MAHONEY, WALKER, McLAUGHLIN, JACOBS, LEVAL, CALABRESI, CABRANES, and PARKER; OAKES; WINTER, Circuit Judge, with whom NEWMAN, Chief Judge, KEARSE, MAHONEY, McLAUGHLIN, JACOBS
• Citation: Pro-Choice Network of Western New York v. Schenck, 67 F.3d 377 (2nd Cir. 1995)
• Decision Date: 28 September 1995
• Docket Number: No. 1215,PRO-CHOICE,1215
• Parties: NETWORK OF WESTERN NEW YORK, Buffalo GYN Women Services, Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Plaintiffs-Appellees, v. Rev. Paul SCHENCK, Dwight Saunders, Defendants-Appellants, Project Rescue Western New York, Operation Rescue, James L. Evans, Rev., Ted Cadwallader, Rev., David Anderson, Jeffrey Baran, Brian Bayley, Bonnie Behn, Ronald Breymeier, Gilbert Certo, Scott Chadsey, Kim Day, Constance Debo, Mark Dent, Wayne Dent, Paul Diemert, Joan Giangreco, Delores Glaser, Carmelina Golba, Kevin Golba, Linda Hall, Nancy Hall, Thomas Hall, Daniel Hamlin, Rev., James Handyside, Pamela Huffnagle, Donna Johanns, Eric Johns, Neal Kochis, Paulette Likoudis, Charles McGuire, Christopher Morrow, Annemarie Nice, Nicholas Pukalo, Carla Rainero, Thomas Riley, Patricia Ostrander, Linda Ross, David Smith, Mark Sterlace, Joyce Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr., Nancy Walker, Leonard Winter, Horace Wolcott, John Does, Jane Doe, the last two names being fictitious names, the real names of said defendants being presently unknown to plaintiffs, said fictitious names being intended to designate organizations or persons who are members of defendant organizations and others acting in concert with any of the defendants who are engaging in, or intend to engage in the conduct complained herein, Project Life of Rochester, Gerald Crawford, David Long, Defendants. Docket 92-7302.

Page 377

67 F.3d 377

64 USLW 2198

PRO-CHOICE NETWORK OF WESTERN NEW YORK, Buffalo GYN Women Services, Erie Medical Center, Paul J. Davis M.D., Shalom Press, M.D., Barnett Slepian, M.D., Plaintiffs-Appellees, v. Rev. Paul SCHENCK, Dwight Saunders, Defendants-Appellants Project Rescue Western New York, Operation Rescue, James L Evans, Rev., Ted Cadwallader, Rev., David Anderson, Jeffrey Baran, Brian Bayley, Bonnie Behn, Ronald Breymeier, Gilbert Certo, Scott Chadsey, Kim Day, Constance Debo, Mark Dent Wayne Dent, Paul Diemert, Joan Giangreco, Delores Glaser, Carmelina Golba, Kevin Golba, Linda Hall, Nancy Hall, Thomas Hall, Daniel Hamlin, Rev., James Handyside, Pamela Huffnagle, Donna Johanns, Eric Johns, Neal Kochis, Paulette Likoudis, Charles McGuire, Christopher Morrow, Annemarie Nice, Nicholas Pukalo, Carla Rainero, Thomas Riley, Patricia Ostrander, Linda Ross, David Smith, Mark Sterlace, Joyce Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr., Nancy Walker, Leonard Winter, Horace Wolcott, John Does, Jane Doe, the last two names being fictitious names, the real names of said defendants being presently unknown to plaintiffs, said fictitious names being intended to designate organizations or persons who are members of defendant organizations and others acting in concert with any of the defendants who are engaging in, or intend to engage in the conduct complained herein, Project Life of Rochester, Gerald Crawford, David Long, Defendants.

No. 1215.

Docket 92-7302.

United States Court of Appeals, Second Circuit.

Argued March 24, 1994.

Decided Sept. 6, 1994.

Argued in banc April 17, 1995.

Decided Sept. 28, 1995.

Vincent P. McCarthy, New Milford, CT (Joseph P. Secola, McCarthy & Secola, New Milford, CT; Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Byron J. Babione, American Center for Law & Justice, Washington, DC, of counsel), for Defendants-Appellants.

Lucinda M. Finley, Buffalo, NY (Glenn Murray, of counsel), for Plaintiffs-Appellees.

Deval L. Patrick, Assistant Attorney General, Washington, DC; David K. Flynn, Samuel R. Bagenstos, of counsel, for the United States as Amicus Curiae.

Michael P. Tierney, New York City, for Legal Center for Defense of Life as Amicus Curiae.

Martha F. Davis, Yolanda S. Wu, Deborah A. Ellis, New York City, for NOW Legal Defense and Education Fund, American Medical Women's Association, B'nai B'rith Women, Catholics for a Free Choice, Center for Reproductive Law and Policy, Connecticut Women's Education and Legal Fund, Inc., Feminist Majority Foundation, Lambda Legal Defense and Education Fund, National Abortion Federation, National Center for Lesbian Rights, National Women's Law Center, Northwest Women's Law Center, National Organization for Women, Women's Law Center, Women's Law Project, Women's Legal Defense Fund, and YWCA of the U.S.A. as Amici Curiae.

Dennis C. Vacco, Attorney General of the State of New York, New York City; Victoria A. Graffeo, Solicitor General, Robert A. Forte, Assistant Attorney General, of counsel, for State of New York as Amicus Curiae.

Steven R. Shapiro, Janet Gallagher, Louise Melling, Karen Laiter, New York City, for American Civil Liberties Union Foundation as Amicus Curiae.

Arthur N. Eisenberg, Donna Lieberman, Yueh-ru Chu, New York City, for New York Civil Liberties Union Foundation as Amicus Curiae.

Before NEWMAN, Chief Judge, OAKES, MESKILL, KEARSE, WINTER, MINER, ALTIMARI, MAHONEY, WALKER, McLAUGHLIN, JACOBS, LEVAL, CALABRESI, CABRANES, and PARKER, Circuit Judges.

OAKES, Senior Circuit Judge, with whom Chief Judge NEWMAN and Circuit Judges KEARSE, MINER, WALKER, LEVAL, CALABRESI, CABRANES, and PARKER join:

This appeal was reheard in banc to reconsider the constitutionality of two provisions of an injunction issued against abortion clinic protesters. One provision creates fifteen-foot buffer zones around abortion clinic entrances, driveways, vehicles entering clinic driveways, and patients entering or leaving the clinics; two "sidewalk counselors" are allowed in the buffer zones to "counsel" patients as they approach or leave the clinics. The second provision requires that if a patient expresses a desire to be left alone, the counselors must "cease and desist" and retreat to outside the buffer zone. The issue arises on an appeal by anti-abortion protesters from an order of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, issuing the injunction. We hold that inclusion of the two provisions in the injunction was proper, as they burden no more speech than necessary to further significant government interests. We therefore vacate the portion of the panel opinion striking down these provisions, and we affirm these two provisions as modified.

Background

Plaintiffs-Appellees Buffalo GYN Womenservices, P.C., Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman, M.D., Highland Obstetrical Group, and Alexander Women's Group are health care providers located in Western New York that offer family planning and gynecological services, including abortion services, at their health care facilities. Plaintiff-Appellee Pro-Choice Network of Western New York is a not-for-profit corporation based in Buffalo, New York. Its primary goal is to maintain legal and safe access to family planning and abortion services in the Western New York area.

While the Defendants were comprised of the organizations Project Rescue Western New York, Operation Rescue and Project Life of Rochester, and fifty individuals who oppose abortion and have engaged in demonstrations at or near abortion clinics in Western New York, the only Appellants are the individuals Rev. Paul Schenck and Dwight Saunders.

I. The Lawsuit

This case commenced on September 24, 1990, when the Plaintiffs (collectively "Pro-Choice Network") filed suit against the Defendants (collectively "Project Rescue") asserting seven causes of action. The first alleges that the defendants are engaged in a conspiracy to deprive women seeking abortions of the privileges and immunities of national citizenship and the equal protection of the laws in violation of 42 U.S.C. Sec. 1985(3). The remaining six causes of action assert claims based on New York State law. They are: (1) violation of N.Y. Civil Rights Law Sec. 40-c and N.Y. Executive Law Sec. 296; (2) tortious interference with business; (3) trespass; (4) intentional infliction of emotional harm; (5) tortious harassment; and (6) false imprisonment.

Along with the complaint, Pro-Choice Network filed a motion for a temporary restraining order (TRO) pursuant to Fed.R.Civ.P. 65(b) to enjoin a "blockade" the defendants had announced for September 28, 1990. After a hearing, the district court issued a TRO enjoining defendants from "blockading" the plaintiffs' medical facilities and from harassing the patients and staff entering or exiting those facilities. ¹ On September 28, 1990, the defendants complied with the TRO by holding a peaceful protest rather than a blockade.

Pro-Choice Network moved to have the TRO converted into a preliminary injunction. With the consent of the parties, the district court ordered that the TRO would remain in effect until the motion for a preliminary injunction was decided. While the motion was pending, Pro-Choice Network filed civil contempt motions against six individual defendants and against Project Rescue, alleging violations of the TRO on six separate occasions (though hearings on only five of these were held prior to the issuance of the preliminary injunction).

II. The District Court Opinion

From March 6, 1991, to April 1, 1991, the district court held a hearing on the preliminary injunction motion. The court also held hearings on the civil contempt motions intermittently from February 6, 1991, through January 30, 1992.

A. Factual Findings

As a result of the evidence taken at those hearings, the district court, in an opinion and order issued February 14, 1992, made extensive findings of fact, as summarized below.

Project Rescue organizes and participates in "rescue" demonstrations at clinics throughout Western New York, including medical facilities associated with Plaintiffs-Appellees. Through these demonstrations, Project Rescue intends to prevent abortions, dissuade women from seeking abortion services, and impress upon the public the morality of its "pro-life" views. The demonstrations are mostly peaceful in nature, but they often become emotionally charged encounters between demonstrators, patients and patient escorts.

Project Rescue has stipulated that a physical "blockade," which prevents patients and staff from entering or exiting a medical facility, may be enjoined. Thus, only two demonstration methods used by Project Rescue are at issue in this case: (1) constructive "blockades," in which demonstrators protest and picket in a loud and disruptive manner outside the medical facilities and harass patients and staff entering and exiting the facilities; and (2) "sidewalk counseling" of patients entering the facilities.

The constructive blockades have the same goal as the physical blockades--preventing utilization of the clinics. Instead of physically blocking patient access to the clinics, Project Rescue constructively blockades the clinics by forcing patients and staff to run a gauntlet of harassment and intimidation.

At times, demonstrators yell at patients, patient escorts and medical staff entering and leaving the health care facilities. The demonstrators also crowd around people trying to enter the facilities in an intimidating and obstructing manner, and grab, push and shove the patients, patient escorts and staff.

Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417, 1424 (W.D.N.Y.1992) (Pro-Choice I ). This harassment and intimidation causes stress and sometimes even physical injury to the patients and medical staff, and generally disrupts the...