Pro-Choice Network v. Project Rescue, Civ. 90-1004A.

799 F. Supp. 1417

PRO-CHOICE NETWORK OF WESTERN NEW YORK, Buffalo Gyn Womenservices, P.C., Erie Medical Center, Paul J. Davis, M.D., P.C., Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman, M.D., Highland Obstetrical Group, Alexander Women's Group, Plaintiffs, v. PROJECT RESCUE WESTERN NEW YORK, Operation Rescue, Project Life of Rochester, Rev. Paul Schenck, Rev. James L. Evans, Rev. Ted Cadwallader, Dwight Saunders, 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, Rev. Daniel Hamlin, 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, Linda Smith, Mark Sterlace, Joyce Strigel, John Thomann, John Tomasello, Paul Waldmiller, Jr., Nancy Walker, Leonard Winter, Horace Wolcott, Gerald Crawford, David Long, John Doe(s) and Jane Doe(s), the Last Two 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 of Herein, Defendants.

No. Civ. 90-1004A.

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

February 14, 1992.

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Isabelle Marcus, Lucinda Finley, Glenn Murray, Buffalo, N.Y., for plaintiffs.

James Duane, Virginia Beach, Va., for defendants.

DECISION AND ORDER

ARCARA, District Judge.

I. INTRODUCTION

Presently before the Court is plaintiffs' motion for a preliminary injunction, pursuant to Fed.R.Civ.P. 65(a), enjoining defendants from engaging in an allegedly illegal effort to prevent women from obtaining abortions and other gynecological and family planning services in a number of medical and family planning clinics located throughout the Western New York area. An evidentiary hearing was held over the course of several days from March 6, 1991 to April 1, 1991. The parties were then given an opportunity to brief and argue their respective positions. The Court has also considered evidence adduced at the contempt hearings of defendants Nancy Walker, Bonnie Behn, Carla Rainero, Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue Western New York ("Project Rescue"). Each of these defendants was charged with violating the Court's temporary restraining order ("TRO") in this case.

As part of their response to the motion for a preliminary injunction, defendants have moved the Court to reconsider its Decision and Order dated October 29, 1990, denying defendants' motion to dismiss the action pursuant to the abstention doctrine.

After considering the evidence adduced at the preliminary injunction and contempt hearings, reviewing the submissions of the parties, and hearing argument from counsel, the Court grants plaintiffs' motion for a preliminary injunction. The preliminary injunction is attached as an Appendix to this Decision and shall also be filed under separate cover. Further, the Court has reconsidered its Decision and Order dated October 29, 1990, and denies defendants' motion to dismiss the action based on the abstention doctrine. The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

II. BACKGROUND

Plaintiffs, Buffalo GYN Womenservices, Erie Medical Center, Paul Davis M.D., Shalom Press M.D., Barnett Slepian M.D., Highland Obstetrical Group and Alexander Women's Group, are health care providers located in the Western New York area. They offer family planning services, abortion services and gynecological services at their health care facilities. Plaintiff 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. It also organizes some of its members to serve as escorts for patients seeking access to plaintiff health care providers' facilities.

Defendants include three organizations, Project Rescue Western New York, Operation Rescue and Project Life of Rochester, and fifty individuals opposed to abortion and dedicated to the "pro-life" movement.¹ Plaintiffs allege that defendants have been engaged in a consistent pattern of illegal conduct at plaintiffs' health care facilities including blockading access to and egress from their facilities, trespassing, and harassment and intimidation of patients and staff.

On September 24, 1990, plaintiffs commenced this action by filing a Complaint asserting seven causes of action. The first cause of action asserts claims under 42 U.S.C. § 1985(3), based on an alleged conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and the equal privileges and immunities of national citizenship. More specifically, plaintiffs allege that defendants have conspired to infringe the constitutional rights of women seeking abortion and family planning services to travel and to choose to have an abortion.² The Court has subject matter jurisdiction over this cause of action pursuant to 28 U.S.C. §§ 1331, 1343. The remaining six causes of action assert claims based on New York State law. They include: (1) violation of N.Y.Civ.Rights Law § 40-c, and N.Y.Exec.Law § 296; (2) tortious interference with business; (3) trespass; (4) intentional infliction of emotional harm; (5) tortious harassment; and (6) false imprisonment.³ These causes of action fall under the Court's supplemental jurisdiction. Along with declaratory and injunctive relief, plaintiffs seek compensatory and punitive damages.

Immediately upon filing their Complaint on September 24, 1990, plaintiffs moved for a TRO, pursuant to Rule 65(b), to enjoin a "blockade" that defendants had announced for September 28, 1990. The location of the "blockade" was to be kept secret until the morning it was scheduled to occur. On September 26, 1990, the Court conducted a hearing and heard oral argument on the application for a TRO. On September 27, 1990, after hearing further argument from plaintiffs' counsel and some of the named defendants, and after reviewing the Complaint and supporting affidavits, the Court, following New York State NOW v. Terry, 704 F.Supp. 1247 (S.D.N.Y.), aff'd, 886 F.2d 1339 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990), issued a TRO enjoining defendants from conducting any "blockade" of plaintiffs' medical facilities, and from harassing patients and staff entering or exiting the facilities.

Defendants complied with the TRO by holding a peaceful demonstration, rather than a "blockade," on September 28, 1990. The Court then scheduled a hearing for October 4, 1990, in order to determine whether the TRO should be converted into a preliminary injunction pursuant to Rule 65. At the October 4, 1990 hearing, plaintiffs established service on nearly all defendants, and James Duane, Esq. appeared on defendants' behalf. Mr. Duane alerted the Court that it was defendants' intention to file a motion to either dismiss or stay the action pursuant to the abstention doctrine. The Court then put the parties on a briefing schedule and issued an order extending the TRO until the motion was decided.

Oral argument on defendants' motion to dismiss or stay the action was held on October 19, 1990. In a Decision and Order dated October 29, 1990, the Court denied defendants' motion. In an Order dated November 2, 1990, the Court, with defendants' consent, ordered that the TRO would remain in effect until the motion for a preliminary injunction was decided.

On October 22, 1990, during the pendency of defendants' motion to dismiss, plaintiffs filed motions for civil contempt against defendants Bonnie Behn and Carla Rainero alleging that they violated the Court's TRO on October 20, 1990. On December 6, 1990, plaintiffs filed a motion for civil contempt against defendant Nancy Walker alleging that she violated the TRO on November 29 and December 1, 1990. On December 14, 1990, plaintiffs filed another motion for civil contempt against Walker alleging that she violated the TRO on December 8, 1990. On March 26, 1991, plaintiffs filed motions for civil contempt against defendants Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue alleging that they violated the TRO on December 29, 1990.⁴

During the months of December, 1990 and January, 1991, the parties, with the assistance of the Court, attempted unsuccessfully to settle this action. A hearing on the contempt motion against Nancy Walker was then held from February 6, 1991 to February 14, 1991. Then, as stated earlier, a preliminary injunction hearing was held from March 6, 1991 to April 1, 1991. Subsequently, a hearing on the contempt motions against Bonnie Behn and Carla Rainero was held from June 18, 1991 to July 12, 1991. Finally, a hearing on the contempt motions against Rev. Paul Schenck, Rev. Robert Schenck and Project Rescue was held from October 15, 1991 to January 30, 1992.

III. FINDINGS OF FACT

It is indisputable that all defendants in this case share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization. To achieve these goals, individual defendants have agreed and combined with one another and with the organizational defendants to coordinate, organize and participate in "rescue" demonstrations at abortion clinics located throughout Western New York. While these "rescue" demonstrations are usually peaceful in nature, they often become emotionally charged encounters between demonstrators,...