Women's Health Care Services v. Operation Rescue
| Decision Date | 07 August 1991 |
| Docket Number | No. 91-1303-K.,91-1303-K. |
| Parties | WOMEN'S HEALTH CARE SERVICES, P.A.; George R. Tiller, M.D., P.A.; George R. Tiller, M.D., Individually; and Wichita Family Planning, Inc., Plaintiffs, v. OPERATION RESCUE-NATIONAL, a/k/a Operation Rescue; Randall Terry; Patrick Mahoney; Keith Tucci; Wendy Wright; Joe Slovenec; and Jim Evans, Defendants. |
| Court | U.S. District Court — District of Kansas |
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John E. Cowles, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for Women's Health Care Services and George R. Tiller.
Dale V. Slape, of Slape & Howard, Wichita, Kan., for Wichita Family Planning, Inc.
Richard A. Macias, Wichita, Kan., Jay Alan Sekulow, Decatur, Ga., Thomas P. Monaghan and Walter M. Weber, New Hope, Ky., for defendants Randall Terry, Operation Rescue, Patrick Mahoney, Keith Tucci, Joe Slovenec, Jim Evans.
On July 23, 1991, the court entered a temporary restraining order prohibiting, among other things, defendant Operation Rescue from blocking the entrances or exits to the Wichita, Kansas clinic operated by plaintiff Women's Health Care Services, P.A. On August 5, 1991, the court took up for hearing whether to issue a preliminary injunction against the defendants, collectively known herein as Operation Rescue. At the same time, the court took up the motion to dismiss filed by Operation Rescue on August 1, 1991. For the reasons stated by the court during the hearing on the motions immediately before the court, and for the reasons stated herein, the motion of defendants Operation Rescue is hereby denied. The court hereby reaffirms its entry of the preliminary injunction, which follows and enlarges upon the terms of its earlier temporary restraining order.
Initially, the court notes that several of the issues presented herein may be resolved upon the Supreme Court's decision in Bray v. Alexandria Women's Health Clinic, ___ U.S. ___, 111 S.Ct. 1070, 112 L.Ed.2d 1176 (1991) (granting cert.). However, the same exigent circumstances which warrant the granting of injunctive relief, lest irreparable injury occur to the plaintiffs, also mandate an expeditious treatment of the issues before the court.
Nor have the issues herein escaped the attention of other courts. The great majority of these courts, when faced with activities similar to those of the defendants herein, and in many instances involving the same defendants, have issued injunctive or other relief to protect the rights of the plaintiffs. See Planned Parenthood Assn. of San Mateo County v. Holy Angels Catholic Church, 765 F.Supp. 617 (N.D.Cal.1991); NOW v. Operation Rescue, 747 F.Supp. 760 (D.D.C.1990); Southwestern Medical Clinics v. Operation Rescue, 744 F.Supp. 230 (D.Nev.1989); NOW v. Operation Rescue, 726 F.Supp. 1483 (E.D.Va.1989), aff'd, 914 F.2d 582 (4th Cir. 1990), cert. granted sub nom. Bray v. Alexandria Women's Health Clinic, ___ U.S. ___, 111 S.Ct. 1070, 112 L.Ed.2d 1176 (1991); Cousins v. Terry, 721 F.Supp. 426 (N.D.N.Y.1989); New York State NOW v. Terry, 704 F.Supp. 1247 (S.D.N.Y.), aff'd, 886 F.2d 1339, 1359 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); Roe v. Operation Rescue, 710 F.Supp. 577 (E.D.Pa.1989), aff'd, 919 F.2d 857 (3rd Cir.1990); Portland Feminist Women's Health Center v. Advocates for Life, Inc., 712 F.Supp. 165 (D.Or. 1988), aff'd, 859 F.2d 681 (9th Cir.1988); Northeast Women's Center, Inc. v. McMonagle, 665 F.Supp. 1147 (E.D.Pa.1987), aff'd, 868 F.2d 1342 (3rd Cir.1989). See also Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir. 1980). But cf. Mississippi Women's Medical Clinic v. McMillan, 866 F.2d 788, 794 (5th Cir.1989); Roe v. Abortion Abolition Soc'y, 811 F.2d 931 (5th Cir.), cert. denied, 484 U.S. 848, 108 S.Ct. 145, 98 L.Ed.2d 101 (1987); National Abortion Federation v. Operation Rescue, 721 F.Supp. 1168 (C.D.Cal.1989), app. pending, Case No. 90-55199 (9th Cir.).
In seeking a preliminary injunction, the movant must establish four factors: (1) irreparable injury to the movant, (2) that the threatened injury outweighs whatever damage may be caused by the injunction, (3) the injunction is not adverse to the public interest, and (4) there is a substantial likelihood the movant will eventually prevail on the merits. Tri-State Generation & Transmission Ass'n v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986).
The movant need only show a reasonable probability of success; it is not necessary that she demonstrate an "overwhelming" likelihood of victory. Atchison, T. & S.F. Ry. v. Lennen, 640 F.2d 255, 261 (10th Cir.1981). Moreover, if the movant successfully demonstrates the first three elements, the burden of proof on the remaining element is lessened; it is enough if the movant has raised questions on the merits sufficiently difficult and substantial so as to render the issues "a fair ground for litigation and thus for more deliberate investigation." Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir.1964).
A preliminary injunction's purpose is to "preserve the status-quo" while the case is resolved. Tri-State, 805 F.2d at 355. The temporary or preliminary injunction serves the same purpose under Kansas law. Comanche County Hospital v. Blue Cross of Kansas, Inc., 228 Kan. 364, 366, 613 P.2d 950 (1980). See Wichita Wire, Inc. v. Lenox, 11 Kan.App.2d 459, 461, 726 P.2d 287 (1986) ().
The purpose of Operation Rescue's mission in Wichita is to interfere with the constitutionally protected rights of women. As acknowledged by counsel for Operation Rescue during the hearing on the present motion, the purpose of Operation Rescue "is to prevent women from having abortions." The tactics employed by the organization in furtherance of that goal, also as admitted by counsel for Operation Rescue, include "sidewalk counseling" in which Operation Rescue seeks to abuse, harass, or intimidate women patients of the plaintiffs so that they do not enter the plaintiffs' clinics. The second tactic used is to physically blockade the driveways and doors of the clinics, thereby preventing anyone from entering.
In the course of the present hearing, and during previous hearings for contempt against several of the principals of Operation Rescue, this court has heard the testimony of several witnesses familiar with the situation presented by Operation Rescue's activities in Wichita. In addition, plaintiff has submitted videotape recordings of protests at the sites of both the clinic on Kellogg Avenue operated by plaintiff Women's Health Care Services and the clinic on Central Avenue operated by plaintiff Wichita Family Planning. These videotapes were accepted into evidence without objection by Operation Rescue.1
When employing the tactic of physically blockading the clinics, Operation Rescue has succeeded in its avowed intent to "shut them down." The court has carefully reviewed the videotape evidence submitted by plaintiffs. These videotapes demonstrate the utter lack of spontaneity of tortious and criminal actions of the individual protestors who make up Operation Rescue. Rather, the individual and collective acts of lawlessness consistently occur at the behest or direction of either the named defendants Terry, Evans, Mahoney, Tucci, or another of a small group of leaders of the organization.
These leaders often wear distinctive clothing to assist in their control of the protesting crowds. The leaders communicate with each other by means of cellular telephones and hand radios, and with the crowd as a whole via bullhorns. The overall mass of protestors is divided into different "teams," which then dutifully march into place upon the instructions of a given leader. To the extent that they are identifiable by the court, all of the leaders supervising the operations of the tortious and criminal actions appear to be national participants in Operation Rescue and are not from Wichita; none of the site leaders are women.
In pursuing their goal of preventing women from having abortions, Operation Rescue has not limited itself to the blocking of the private driveways leading to the clinics. The videotapes demonstrate also the intentional blocking of public streets at the direction of Operation Rescue leaders. Protest participants routinely enter upon the private yards of other homes. Nor have the protests been limited to passively blocking the entrances to the clinics. There is evidence that the locks to the doors of both clinics have been sabotaged by the insertion of foreign substances into the door keyholes, thereby rendering it impossible to open the doors.
The protestors have also acted to frustrate or delay effective police action. Upon arrest, and with the acquiescence of either the Wichita police or the City of Wichita, individual protestors move in a slow motion, heel-to-toe fashion, thereby greatly delaying the speed with which officers can clear the entryways. In addition, many protestors have refused to identify themselves to booking officers, giving their names as either John or Jane Doe.
The court finds that the requested preliminary injunction satisfies the first three requirements for injunctive relief. First, the plaintiffs have demonstrated the likelihood of irreparable injury, for which legal remedies are inherently inadequate. The plaintiffs seek to prevent the blockading of clinics providing abortion-related medical services. The actions of Operation Rescue, in interfering with and seeking to "shut down" the plaintiffs, violate the constitutional rights of the clinics' patients. Further, these actions represent illegal trespass, tortious disruption of legal contractual relations, and create a public and private nuisance. These actions interfere with the rights of the plaintiffs to peaceably enjoy their property and to conduct legitimate business relations. The same...
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