Town of West Hartford v. Operation Rescue, 2:89 CV 400 (PCD).

• Citation: 792 F. Supp. 161
• Decision Date: 12 May 1992
• Docket Number: No. 2:89 CV 400 (PCD).,2:89 CV 400 (PCD).
• Parties: TOWN OF WEST HARTFORD, et al., v. OPERATION RESCUE, et al.
• Court: U.S. District Court — District of Connecticut

792 F. Supp. 161

TOWN OF WEST HARTFORD, et al., v. OPERATION RESCUE, et al.

No. 2:89 CV 400 (PCD).

United States District Court, D. Connecticut.

May 12, 1992.

Pamela R. Hershinson, West Hartford, Conn., and Jon L. Schoenhorn, Hartford, Conn., for plaintiffs.

Vincent P. McCarthy, New Milford, Conn., for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DORSEY, District Judge.

This case arises out of protests on June 17 and June 26, 1989 at the Summit Women's Center ("Center") in West Hartford. Plaintiff, the Center, and defendants, who include Operation Rescue and several of its supporters ("Operation Rescue"), each move for summary judgment.

Background

The following facts are undisputed for purposes of these cross-motions. As a result of the two demonstrations staged by defendants protesting abortions performed at the Center, the Town of West Hartford ("Town") filed the original complaint alleging, inter alia, violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, as well as myriad state law claims and seeking declaratory relief. The undisputed facts underlying that complaint are detailed fully in this court's ruling on plaintiff's motion for preliminary injunction dated September 21, 1989, familiarity with which is assumed. A temporary restraining order was granted on June 26, 1989, extended on July 13, 1989. The Center became an intervening plaintiff on August 28, 1989 and filed an amended complaint on September 22, 1989. A preliminary injunction based upon the Town's public nuisance claim was granted after a three-day hearing on September 21, 1989. Town of West Hartford v. Operation Rescue, 726 F.Supp. 371 (D.Conn. 1989). The court of appeals reversed for lack of federal jurisdiction with respect to the Town and ordered all of the Town's claims dismissed, addressing neither the jurisdictional basis nor the merits of claims set forth by the Center, the sole remaining plaintiff, 915 F.2d 92. Plaintiff now asserts, on its own behalf, a conspiracy by defendants to deprive women of their constitutional rights, both to seek an abortion and to travel, in violation of 42 U.S.C. § 1985 (Count I); violation of RICO (Count III); as well as state claims of trespass (Count VI), tortious interference with business (Count VIII), and negligence (Count IX). Defendants argue that this court continues to lack subject-matter jurisdiction and that plaintiff has failed, as a matter of law, to set forth any legal or factual basis to support its federal claims.¹

Discussion

Motions for summary judgment involve a determination as to whether there exists any genuine issue of material fact. That standard is articulated more fully in Cote v. Durham Life Ins. Co., 754 F.Supp. 18 (D.Conn.1991).

A. 42 U.S.C. § 1985(3) (Count I)

Plaintiff asserts that defendants have conspired to deprive women of their constitutional right to privacy by interfering with their right to choose, seek, and obtain abortions. Title 42 U.S.C. § 1985(3) provides, in pertinent part:

If two or more persons in any State or Territory conspire, ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the law, 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; ... in any case of conspiracy set forth in this section, if one or more person engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

Thus, a claim under § 1985(3) requires (1) a conspiracy; (2) for the purpose of depriving a person or class of persons of equal protection of the laws or the equal privileges and immunities under the law; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584, 587 (2d Cir.1988). The statute provides no substantive rights, but "provides a remedy for a violation of the rights it designates." Id., quoting Great American Federal Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Section 1985(3) clearly provides a remedy for conspiracies to deprive persons of their rights under the United States Constitution. See, e.g., United Bd. of Carpenters v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). Defendants maintain that plaintiff's allegation of the deprivation of the right to abortion is not actionable under § 1985, as its underlying constitutional claim — violation of the fourteenth amendment— necessitates a concomitant level of state action which plaintiff has failed to allege.²

Defendants' argument rests on the premise that, because § 1985 confers no substantive rights but affords a remedy for the deprivation of a constitutional right, the "rights, privileges and immunities that § 1985 vindicates must be found elsewhere." Scott, 463 U.S. at 833, 103 S.Ct. at 3358. While § 1985(3) makes no reference to state action and has thus been found to reach wholly private conspiracies, see Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the necessity for state action depends on whether the underlying substantive right can only be asserted against state interference. See New York State NOW v. Terry, 704 F.Supp. 1247 (S.D.N.Y.), aff'd as modified, 886 F.2d 1339 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990). Whether a conspiracy to deprive women of the right to an abortion can be alleged against purely private parties under § 1985(3) is thus dependent upon the constitutional source of that right.

Given the controversial nature of the right in question and its contentious legal and political history, it will come as no surprise to learn that there exists neither uniformity of opinion nor jurisprudential consistency regarding the foundation or derivation of the right to choose abortion in the federal Constitution. In Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 725, 35 L.Ed.2d 147 (1972), the Supreme Court located the right as subsumed by the right to privacy, finding its roots in the first, fourth, fifth, ninth, and fourteenth amendments, as well as in the penumbras of the Bill of Rights. It was noted, however, that the right to privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 153, 93 S.Ct. at 727. The subsequent decisional law has overwhelmingly situated the right to privacy within the fourteenth amendment, as suggested but never conclusively established by the Court in Roe, thereby affirming the existence of a right that cannot be abrogated by state interference. See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 2936, 111 L.Ed.2d 344 (1990) ("A woman's decision to beget or to bear a child is a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution."); Webster v. Reproductive Health Serv., 492 U.S. 490, 521, 109 S.Ct. 3040, 3058, 106 L.Ed.2d 410 (1989) ("This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause."); Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427, 103 S.Ct. 2481, 2491, 76 L.Ed.2d 687 (1983) ("In Roe v. Wade, the Court held that the `right of privacy, ... founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.' 410 U.S. at 153, 93 S.Ct. at 727. Although the Constitution does not specifically identify this right, the history of this Court's constitutional adjudication leaves no doubt that `the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.'"); Harris v. McRae, 448 U.S. 297, 312, 100 S.Ct. 2671, 2685, 65 L.Ed.2d 784 (1980) ("The constitutional underpinning of Wade was a recognition that the `liberty' protected by the Due Process Clause of the Fourteenth Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life."); Maher v. Roe, 432 U.S. 464, 476, 97 S.Ct. 2376, 2383, 53 L.Ed.2d 484 (1977) ("This distinction between direct state interference with a protected activity and state encouragement of an alternative activity is implicit in ... cases cited in Roe in support of the pregnant woman's right under the Fourteenth Amendment."). It is, therefore, reasonable to conclude that the greater body of case law interpreting the constitutional source from which the right to abortion springs locates that right firmly in the fourteenth amendment. But see Lewis v. Pearson Foundation, Inc., 908 F.2d 318 (8th Cir.1990), petition for cert. filed, 59 U.S.L.W. 3726 (U.S. Apr. 10, 1991) (No. 90-1575) ("We observe that Roe v. Wade finds support for the existence of personal privacy interests and freedom of personal choice in marriage and family life in...