Roe v. Aware Woman Center for Choice, 00-10231

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation253 F.3d 678
Docket NumberNo. 00-10231,00-10231
Parties(11th Cir. 2001) Jane ROE, II, Plaintiff-Appellant, v. AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle, and William P. Egherman, M.D., Defendants-Appellees.
Decision Date08 June 2001

Page 678

253 F.3d 678 (11th Cir. 2001)
Jane ROE, II, Plaintiff-Appellant,
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle, and William P. Egherman, M.D., Defendants-Appellees.
No. 00-10231.
United States Court of Appeals,
Eleventh Circuit.
June 8, 2001.

Page 679

Appeal from the United States District Court for the Middle District of Florida.(No. 99-00850-CIV-ORL-19), Patricia C. Fawsett, Judge.

Before CARNES and HILL, Circuit Judges, and ALAIMO *, District Judge.

CARNES, Circuit Judge:

A woman seeking to proceed in this lawsuit under the name Jane Roe alleges that she was injured during the course of an abortion procedure performed by Dr. William P. Egherman at the Aware Woman Center for Choice, which is operated by a Florida corporation controlled by Edward and Patricia Windle. Roe sued Egherman, the Windles, and the corporation under the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248. That statute provides civil remedies for anyone whose ability to obtain reproductive health services has been intentionally interfered with. This is Roe's appeal from the district court's dismissal of her complaint under Federal Rule of Civil Procedure

Page 680

12(b)(6) and from its denial of her motion to proceed anonymously.


Of course, in reviewing the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), we, like the district court, "must accept the allegations set forth in the complaint as true." See United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir.1999) (en banc) (citation omitted). Accepting the allegations of the complaint in this case as true, the facts are that on March 29, 1997, Roe entered the defendants' clinic for what was to be her third abortion procedure. Soon after the procedure began, she felt "extreme, excessive pain in her abdomen" that she had not experienced during her previous two abortion procedures. Roe demanded that Dr. Egherman stop the procedure and call an ambulance for her. He refused and, instead, instructed four assistants to restrain Roe while he continued to perform the procedure. Roe was eventually taken by ambulance to an emergency room where it was discovered that during the procedure at the clinic she had suffered both a perforated uterus and a colon laceration. At the hospital, the dead fetus was removed from Roe's uterus and she underwent surgery to repair her organs.

On July 9, 1999, Roe filed suit against the defendants pursuant to FACE, 18 U.S.C. § 248(c)(1). Alleging the facts we have just summarized, Roe's complaint claimed that defendants " 'interfere[d] with' ... 'intimidat[ed]' ... and use[d] 'physical obstruction'... to restrain Plaintiff and render impassable her desired egress from [the clinic]," in violation of 18 U.S.C. § 248(a)(1). In response, the defendants filed Rule 12(b)(6) motions to dismiss, arguing that Roe was attempting to use FACE in a manner contrary to both the language and purpose of the statute. 1 Along with her opposition to the motions to dismiss, Roe filed a motion to proceed anonymously. The district court granted the motions to dismiss, explaining that in its view the complaint failed to allege the defendants had acted "in order to prevent [Roe] from obtaining reproductive health services." The dismissal was without prejudice, the court giving Roe leave to amend her complaint within ten days of the dismissal. In the same order, the district court also denied Roe's request to proceed anonymously, concluding that the "presumption of openness in judicial proceedings" was not outweighed by any substantial privacy right of Roe's.



In order to decide whether the complaint made the necessary allegations, we first look at the elements of a cause of action under FACE, an inquiry which requires us to construe the statute. The statute itself sets out the three elements of a FACE claim:

1) that a defendant, by "force or threat of force or by physical obstruction";

2) "intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person";

3) "because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services"

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18 U.S.C. § 248(a)(1). See generally United States v. Balint, 201 F.3d 928, 932 (7th Cir.2000); United States v. Dinwiddie, 76 F.3d 913, 923 (8th Cir.1996); American Life League, Inc. v. Reno, 47 F.3d 642, 650 (4th Cir.1995). 2

The defendants do not contest that the first element is met by the allegations, and it clearly is. Regarding the second element, the statute provides that "[t]he term 'interfere with' means to restrict a person's freedom of movement." 18 U.S.C. § 248(e)(2). Thus, the second element is satisfied if the defendants, in restraining Roe, intended to restrict her freedom of movement. Dr. Egherman concedes that Roe has alleged sufficient facts to satisfy the second element. While the other defendants do not concede as much, the allegation that the defendants held Roe down sufficiently implies that in doing so they intended to restrict her freedom of movement. 3

It is the third element, that of the defendants' motive, which is primarily at issue in this case. The district court determined that in order to satisfy the third element, Roe's complaint must contain allegations that the defendants, in restraining her, were motivated by a desire to "prevent [Roe] from obtaining reproductive health services."4 The parties agree on that much. They disagree, however, about whether the complaint can be fairly read as alleging that element. Included in their disagreement is a difference about the nature of "reproductive health services."

The statute defines "reproductive health services" to include "medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." Id. § 248(e)(5). The defendants attempt to limit the "reproductive health services" at issue in this case to Roe's abortion procedure, arguing that "Roe has failed to allege [the defendants'] acts were intended to interfere with Roe's egress from the clinic in order to prevent her from obtaining an abortion." However, the complaint, properly construed, alleges that Roe was denied a type of "reproductive health service" other than the termination of her pregnancy. It alleges that while undergoing the abortion procedure Roe told Dr. Egherman's assistants that she was experiencing "extreme, excessive pain in her abdomen." She "begged the abortionist to stop" and "demanded

Page 682

that an ambulance be called to take her to the emergency room at the local hospital." However, "[i]nstead of calling an ambulance, defendants' staff forcibly held [Roe] on the table" thereby "preventing her escape from the facility." As a result of those acts of the defendants, Roe alleges that she "suffered a perforated uterus" which required several days of hospitalization.

Viewed in the light most favorable to her, Roe's complaint alleges that she wanted to go to the hospital to obtain some kind of "medical" or "surgical" services "relating to" either her "reproductive system" or "the termination of [her] pregnancy." Id. § 248(e)(5). For purposes of FACE, it matters not whether the reason Roe wanted to leave the clinic immediately and go to a hospital emergency room was so that she could have the damage done to her uterus repaired, or because she had changed her mind and wanted to save the pregnancy, or because she wanted to have the abortion completed at a hospital instead of at the clinic. If the defendants restrained Roe for the purpose of preventing her from obtaining any of those services, then she has adequately pleaded a violation of FACE because all of those services fall within the statutory definition of "reproductive health services."

The next question then is whether Roe's complaint can be construed as alleging that defendants, in restraining Roe, were motivated by a desire to prevent her from obtaining those services. Defendants contend that it is unreasonable to assume that they restrained Roe in order to prevent her from obtaining reproductive health services. They argue that if they did restrain Roe, the only reason they did so was to protect her life and health and prevent further injury from the complications that had arisen during the course of the abortion procedure. Roe concedes that if that were the defendants' motive, there was no violation of FACE. 5

A complaint cannot be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Shands Teaching Hosp. and Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir.2000) (citation omitted). And that is true even where "it may appear on the face of the pleadings that a recovery is very remote and unlikely." Scheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citations and quotations omitted). The possibility that defendants were motivated by considerations other than protecting Roe's life and health may be "remote and unlikely," but it is not a possibility that is inconsistent with the allegations of the complaint.

The reasonableness of that assumption aside, the defendants correctly point out that Roe failed to allege anything at all regarding defendants' motive. Defendants argue that the motive requirement is the load-bearing element of a FACE claim and that Roe's failure to plead motive should

Page 683

result in the dismissal of her complaint. As observed by the Eighth Circuit:

FACE's motive requirement accomplishes ... the perfectly constitutional task of filtering out conduct that Congress believes need not be covered by a federal statute. Congress enacted FACE to prohibit...

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