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ROE v. OPERATION RESCUE

March 21, 1989

JANE ROE, ET AL.
v.
OPERATION RESCUE, ET AL.



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 This is an action for declaratory and injunctive relief sought against various anti-abortion activists. Presently before the court are the parties' motions for summary judgment.

 I. BACKGROUND

 Plaintiffs filed this action on June 29, 1988, seeking declaratory and injunctive relief addressed to the health and safety of women seeking abortions or other family planning services in the metropolitan Philadelphia area. After a hearing in open court on June 30, 1988, this court granted plaintiffs' motion for a temporary restraining order (TRO). On September 22, 1988, the court granted plaintiffs' motion for a preliminary injunction pursuant to a temporary consent decree agreed to by the parties. After another hearing on November 15-16, 1988, and pursuant to an agreement between the parties, the court issued an order that provided for the preliminary injunction to remain in effect until such time as a hearing on permanent injunctive relief was held. After the November hearing and in a Memorandum and Order dated December 5, 1988 [hereinafter Mem. Op.], defendants Randall Terry, Michael McMonagle, Joseph Foreman, Operation Rescue, and nondefendant Tina Krail were found in civil contempt for violating the temporary restraining order of June 30, 1988.

 II. SUMMARY JUDGMENT STANDARD

 A trial court may enter summary judgment if, after a review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). The evidence presented must be viewed in the light most favorable to the non-moving party. White, 862 F.2d at 59. Where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the nonmoving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981).

 The moving party has the initial burden of identifying evidence which it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). The moving party's burden may be discharged by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleading and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing there is a genuine issue for trial. Celotex, 477 U.S. at 324. Moreover, when the nonmoving party bears the burden of proof, it must "make a showing sufficient to establish the existence of [every] element essential to that party's case." Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322). Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White, 862 F.2d at 59 (quoting Celotex, 477 U.S. at 322).

 III. PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

 Plaintiffs seek summary judgment on their claim under 42 U.S.C. § 1985(3) and common law claims of trespass, intentional interference with business relations, false imprisonment, and intentional infliction of emotional distress. *fn1" Plaintiffs request the entry of summary judgment against defendants Randall Terry, Michael McMonagle, Joseph Foreman, and Operation Rescue only, and the relief sought is limited to declaratory relief and attorneys fees. *fn2"

 A. Claim under 42 U.S.C. § 1985(3)

 Section 1985(3) provides a remedy for persons injured by conspiracies to deprive them of their rights to equal protection under the laws. de Botton v. Marple Township, 689 F. Supp. 477, 482 (E.D. Pa. 1988). A cause of action under 1985(3) has four essential elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Bhd. of Carpenters and Joiners of America, Local 610 (Carpenters) v. Scott, 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983); de Botton, 689 F. Supp. at 482.

 Plaintiffs claim that some of the women seeking abortions in the metropolitan Philadelphia area reside in states other than Pennsylvania, and that defendants conspired together to obstruct these women in the exercise of their constitutional right to travel. They also claim that the purpose of defendants' conspiracy is to interfere with the exercise of the "constitutional right to abortion." I will now examine each of the elements of plaintiffs' § 1985(3) claims.

 1. The Conspiracy

 At the outset, defendants do not deny or dispute plaintiffs' allegation that the defendants constitute a conspiracy. See Defendants' Answer to Plaintiffs' Motion for Summary Judgment [Defendants' Answer] at 11 ("The conspiracy of defendants was motivated by an economic or commercial animus . . . .") (emphasis added). When the alleged conspiracy is aimed at a right protected only against state interference, the plaintiff must prove that the conspiracy included state involvement of some sort. Carpenters, 463 U.S. at 831-34; Rashid v. Public Sav. Ass'n, 97 Bankr. 187 (E.D. Pa. 1989); New York State Nat'l Org. of Women v. Terry, 704 F. Supp. 1247 (S.D.N.Y. 1989). In this case, plaintiffs claim that defendants' conspiracy is aimed at two of plaintiffs' constitutional rights: the right to travel; and the "constitutional right to abortion." These rights will be discussed more fully below.

 2. Motivation of the Conspiracy

 A conspiracy is within the scope of § 1985(3) only if it is motivated by some class-based, invidiously discriminatory intent. Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Although the Supreme Court in Griffin left open the question of whether conspiracies motivated by something other than racial bias would be actionable under § 1985(3), the Third Circuit answered this question in the affirmative in Novotny v. Great American Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1243-44 (3d Cir. 1978), vacated on other grounds, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). In Novotny, the Third Circuit held that sex discrimination falls within the categories of animus condemned by § 1985(3).

 Subsequent cases in the Third Circuit demonstrate the continuing vitality of Novotny and the applicability of § 1985(3) to gender-based animus. See C&K Coal Co. v. United Mine Workers of America, 704 F.2d 690, 700 (3d Cir. 1983) (citing Novotny as valid law); Dudosh v. City of Allentown, 629 F. Supp. 849, 853 (E.D. Pa. 1985) (class of abused women denied adequate protection came within the scope of § 1985(3)); Skadegaard v. Farrell, 578 F. Supp. 1209, 1217-19 (D. N.J. 1984) (class of female employees sexually or otherwise harassed by supervisor came within scope of § 1985(3)). Based on the foregoing, the court finds that "women seeking abortions" are a class entitled to protection under § 1985(3), and that a conspiracy to deprive women seeking abortions of their constitutional rights is actionable under § 1985(3). *fn3" Accord New York State Nat'l Org. of Women v. Terry, 704 F. Supp. at 1258 (S.D.N.Y. 1989); Portland Feminist Women's Health Center v. Advocates for Life, Inc., 712 F. Supp. 165 (D. Ore. 1988).

 I turn now to examine the rights that plaintiffs claim defendants have interfered with.

 a. Right to Travel

 As the Supreme Court has stated, "Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986). The constitutional right to travel includes the right to travel interstate to obtain an abortion. Doe v. Bolton, 410 U.S. 179, 200, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973). Since this right is protected from purely private as well as governmental interference, state action or involvement need not be shown. Carpenters, 463 U.S. at 832-33; Griffin, 403 U.S. at 105-06.

 In opposition, defendants do not contest that out-of-state women obtain abortions at plaintiff clinics and that defendants blockaded the clinics. See Defendants' Answer at 12-13. Instead, defendants contend that there has been no showing that their actions actually deterred any travel or that impeding travel was one of their primary objectives.

 Based on the foregoing, it is undisputed that defendants blockaded plaintiff clinics with the intention of "closing them down" and that women were prevented from obtaining services during the blockades. *fn5" In addition, the court finds that in at least one instance as described above (with a reasonable inference that the situation arose or will arise more often), a woman was forced to travel from New Jersey to Pennsylvania to obtain abortion services, after defendants' blockade prevented her from completing a the two-day procedure begun in New Jersey. Because women from out-of-state travel to plaintiff clinics seeking abortions and because defendants' blockades prevent women from obtaining abortions at plaintiff clinics, all of which defendants admit, the court finds that plaintiffs have conclusively shown that defendants actions have impermissibly interfered with and impaired the constitutional right of such women to travel freely. See Griffin, 403 U.S. at 106; *fn6" New York State Nat'l Org. of Women v. Terry, 704 F. Supp. 1247 (S.D.N.Y. 1989) (plaintiffs need only show that exercise of the right to travel was penalized; undisputed facts established that activities of anti-abortion protesters obstructed out-of-state women's access to medical facilities).

 b. Right to Abortion

 As noted above, when the alleged conspiracy is aimed at a right protected only against state interference, the plaintiff must prove that the conspiracy included state involvement of some sort. Carpenters, 463 U.S. at 831-34; Rashid v. Public Sav. Ass'n, 97 B.R. 187 (E.D. Pa. March 6, 1989); New York State Nat'l Org. of Women v. Terry, 704 F. Supp. 1247 (S.D.N.Y. Jan. 10, 1989). In addition to the "right to travel" claim, plaintiffs claim that defendants violated § 1985(3) by interfering with the exercise of their "constitutional right to abortion." One of the essential elements of this claim, then, is a showing of state involvement. New York State Nat'l Org. of Women, 704 F. Supp. 1247; Portland Feminist Women's Health Center v. Advocates for Life, Inc., 712 F. Supp. 165 (D. Ore. 1988); Feminist Women's Health Center v. Roberts, No. C86-161 (W.D. Wash. March 11, 1988).

 Plaintiffs claim that by blocking access to abortion clinics and by failing to notify police of their next target, defendants have acted to render police officials incapable of securing women seeking abortions equal access to medical treatment. Additionally, plaintiffs assert that the purpose of defendants' activities is to influence state and federal legislators to change current ...


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