Upper Hudson Planned Parenthood, Inc. v. Doe

• Decision Date: 18 October 1993
• Docket Number: No. 90-CV-1084.,90-CV-1084.
• Citation: 836 F. Supp. 939
• Parties: UPPER HUDSON PLANNED PARENTHOOD, INC., Plaintiff, v. John DOE, Jane Doe, XYZ Corporation, Francis Benjamin, Dominick J. Brignola, Larry Crandall, Margaret Crossett, Randall Deschamps, Marjorie Dujack, Frank Fonseca, Sue Halbedel, Stephen Lawlor, Emerson Martin, Jr., Francis Murray, Linda Varriale, Joseph Vittolo, Dennis Wolterding, Heather Birnbaum, Jefferson Daniels, Paul Kerin, Gary Winn, Citizens Concerned for Human Life, Inc., Full Gospel Community Church, Operation Rescue, Inc., and People Concerned for People, Inc. Defendants.
• Court: U.S. District Court — Northern District of New York

836 F. Supp. 939

UPPER HUDSON PLANNED PARENTHOOD, INC., Plaintiff, v. John DOE, Jane Doe, XYZ Corporation, Francis Benjamin, Dominick J. Brignola, Larry Crandall, Margaret Crossett, Randall Deschamps, Marjorie Dujack, Frank Fonseca, Sue Halbedel, Stephen Lawlor, Emerson Martin, Jr., Francis Murray, Linda Varriale, Joseph Vittolo, Dennis Wolterding, Heather Birnbaum, Jefferson Daniels, Paul Kerin, Gary Winn, Citizens Concerned for Human Life, Inc., Full Gospel Community Church, Operation Rescue, Inc., and People Concerned for People, Inc. Defendants.

No. 90-CV-1084.

United States District Court, N.D. New York.

October 18, 1993.

COPYRIGHT MATERIAL OMITTED

Pattison, Sampson Law Firm, Troy, NY, for plaintiff; Gerald H. Katzman, of counsel.

A. Lawrence Washburn, Jr., New York City, for defendants Benjamin, Crossett, Dujack, Halbedel, Martin and Varriale.

Kriss, Kriss Law Firm, Albany, NY, for defendants Crandall, Deschamps, Lalor, Murray, Wolterding, Daniels, Kerin, Citizens Concerned for Human Life, Inc., and Full Gospel Community Church; Charles R. Kriss, of counsel.

Dominick J. Brignola, pro se.

Joseph Vittolo, pro se.

MEMORANDUM-DECISION AND ORDER

McCURN, Senior District Judge.

INTRODUCTION

This action is one of the countless lawsuits which have been filed across the country as the national debate regarding abortion continues to rage. It pits Upper Hudson Planned Parenthood ("UHPP"), a provider of women's reproductive health care services, including first trimester abortions,¹ against antiabortion activists. The primary legal theory advanced by UHPP is the same one which numerous other beleaguered abortion providers have resorted to as peaceful antiabortion demonstrators have become increasingly violent in their tactics.² As a means of preventing antiabortion activists from, among other things, engaging in unlawful conduct such as trespassing, these providers have turned to 42 U.S.C. ž 1985(3),³ commonly referred to as the Ku Klux Klan Act.⁴ The thrust of UHPP's ž 1985(3) argument is that the defendant protestors have entered into a conspiracy to deprive UHPP's patients of the following asserted rights: to choose an abortion; to travel interstate and to travel intrastate. In addition to this federal cause of action, in its amended complaint UHPP asserts eight other state law based causes of action.⁵

UHPP's three facilities have not been the target of antiabortion protests in the same way as have other similar clinics in, for example, Buffalo, New York⁶ and Wichita, Kansas,⁷ where Operation Rescue members and others have traveled from around the country to participate in antiabortion activities at clinics in those communities. Nevertheless, as a provider of abortion services, UHPP has not escaped the wrath of antiabortion activists in the Capitol District. Although UHPP had been the target of some antiabortion protests prior to 1988, it was not until December 8, 1988, that UHPP experienced the full impact of such protests. On that date, UHPP's Hudson clinic was the site of a blockade by antiabortion activists, including many of the defendants named herein. UHPP's Executive Director, Ruth Klepper, described it as a "mob scene." The clinic was surrounded by protestors; they were also on the curb and in the parking lot. Some of the protestors were sitting and others were carrying signs. In addition to these descriptions offered by Ms. Klepper, photographs in the record taken the day of this incident show approximately forty protestors, locking arms, three persons deep, completely blocking the door to the Hudson clinic. Plaintiff's exhs. 17 and 18. Overwhelmed by the number of protestors, UHPP's Hudson clinic did not open on schedule that day because access could not be gained to the clinic. Instead, the clinic opened later that day between 2:30 and 3:00 p.m.

Approximately three and a half months later, on March 24, 1989, this time at UHPP's Albany clinic, antiabortion protestors, again many of the defendants, engaged in a "rescue" as that term is commonly used in the "pro-life" community. Ms. Klepper observed a scene of "complete chaos," with far more protestors present than had been at Hudson earlier. She estimated that altogether there were several hundred protestors ÔÇö many of them singing and chanting. These protestors effectively blocked access to the Albany clinic via the main entrance by standing, tightly grouped, en masse, in front of the door. See, e.g., Plaintiff's exh. 82Q. Some of the protestors employed passive resistance techniques when approached by the police. See Plaintiff's exhs. 82D and 82 N. According to Ms. Klepper, however, Albany area police did remain near the rear door of the clinic all day, which is not usually used for patient access, to keep it clear of protestors. A few of the defendants were arrested in connection with their activities at Albany on this date.

For reasons unknown to the court, rather than promptly taking some form of legal action in the months immediately following those two rescues, UHPP waited until nearly 18 months after the second rescue ÔÇö October 9, 1990 ÔÇö to file this action. Named as defendants in this lawsuit are certain individuals whom UHPP believes to be actively involved in the Capitol District antiabortion movement, as well as several entities which allegedly sponsor antiabortion demonstrations outside UHPP's three clinics. Just after the commencement of this lawsuit, UHPP sought a temporary restraining order seeking almost identical relief to that sought on this application for a preliminary injunction. The court denied that application because, inter alia, there was no showing of irreparable harm. After that, this case proceeded in the usual fashion, although, as will be seen, with more than the usual amount of court intervention along the way. Finally, from August 25 through 28, 1992 the court conducted an evidentiary hearing to determine whether UHPP would be entitled to a preliminary injunction.

Following those four days of proof, the court reserved decision and directed the parties to file post-hearing memoranda of law. Before the court rendered its decision, on January 13, 1993, the Supreme Court decided Bray, which significantly impacts the present case. The court therefore required the parties to submit supplemental memoranda of law as to the status of this case after Bray, and that was done. The court has now had an opportunity to carefully examine the applicable law (which, as will be seen, was not an easy task given the state of flux of ž 1985(3) jurisprudence⁸), and to consider the numerous exhibits, including photographs and videotapes taken at UHPP clinics when defendant protestors were present, which were proffered at the preliminary injunction hearing. Following constitutes the court's decision in this regard.

DISCUSSION⁹

Before determining whether UHPP is entitled to a preliminary injunction, there are several critical issues which the court must resolve. First, the court must decide whether, as the defendants urge, after the Supreme Court's decision in Bray, supra, UHPP's ž 1985(3) cause of action should be dismissed. If that issue is resolved unfavorably to UHPP, then the issue becomes whether the court should exercise pendent jurisdiction¹⁰ over UHPP's remaining eight state law based causes of action. Only after those two issues are decided will the court be in a position to decide whether UHPP is entitled to the injunctive relief which it is seeking.

I. Section 1985(3)

As the Second Circuit aptly stated, on January 13, 1993, the day the Supreme Court decided Bray, supra, "the judicial landscape of ž 1985(3) was radically altered." Town of West Hartford v. Operation Rescue, 991 F.2d 1039, 1045 (2d Cir.1993). The impetus for Bray was an announcement by the by now well-known antiabortion organization, Operation Rescue, that it planned to demonstrate at abortion clinics in the Washington, D.C. area. The plaintiffs, nine women's medical facilities, sought injunctive relief to restrain Operation Rescue, among others, from engaging in demonstrations which were obstructive (i.e. blockading and/or rescuing) and trespassory in nature. The district court granted the plaintiffs' application for a permanent injunction. In so doing, the district court found that plaintiffs' members and patients "constitute a sub-set of a gender-based class," that is "women seeking abortions," thus satisfying the requirement of a "class-based discriminatory animus" established in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). National Organization for Women v. Operation Rescue, 726 F.Supp. 1483, 1492 (E.D.Va.1989) ("Bray I").¹¹ Further, relying in part upon testimony that the plaintiff clinics serve out-of-state patients, the district court further found that the conspiracy there deprived women seeking abortions and related medical and counseling services of the constitutionally protected right to travel interstate. Id. at 1493. On appeal the Fourth Circuit affirmed. National Organization for Women v. Operation Rescue, 914 F.2d 582 (4th Cir.1990) ("Bray II"). The Supreme Court disagreed, however, and reversed on several grounds.

The first ground pertained to the lower court's interpretation of the "class-based invidiously discriminatory animus" requirement of ž 1985(3). Reviewing Griffin,¹² the Supreme Court in Bray unequivocally held that, "`Women seeking abortion'" are not a qualifying class" for purposes of ž 1985(3). ___ U.S. at ___, 113 S.Ct., at 759. Rejecting the view that opposition to abortion reflects an animus against women, the Court expressly declined to decide however whether, as the clinics argued, women in general would qualify as a class under ž 1985(3). Id. The Court went on to opine though:

We do not think that that the "animus" requirement can be met only by maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women. It does

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