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Roe v. Operation Rescue

filed: April 18, 1995.

JANE ROE; MARY MOE; NATIONAL ABORTION RIGHTS ACTION LEAGUE OF PENNSYLVANIA; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA; ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN; REPRODUCTIVE HEALTH AND COUNSELING CENTER; WOMEN'S SUBURBAN CLINIC; ALLENTOWN WOMEN'S CENTER; NORTHEAST WOMEN'S CENTER; WOMEN'S MEDICAL SERVICES; ALLEN KLINE, DR.
v.
OPERATION RESCUE; RANDALL TERRY; REVEREND JAMES P. LISANTE; PRO LIFE NONVIOLENT ACTION PROJECT OF BRONX, N.Y.; THOMAS HERLIHY; PRO LIFE NONVIOLENT ACTION PROJECT OF PHILADELPHIA; MICHAEL MCMONAGLE; CHESTER COUNTY CITIZENS CONCERNED ABOUT LIFE; JOHN J. O'BRIEN; COUNCIL FOR THE SANCTITY OF HUMAN LIFE; JOSEPH FOREMAN; ADVOCATES FOR LIFE; ANDREW BURNETT; AMERICAN LIFE LEAGUE; JUDIE BROWN; DIRECT ACTION COMMITTEE; KATHY HOFFER; CRAIG HOFFER; LIFE AND FAMILY CENTER; ANDREW SCHULBERG; PRO LIFE ACTION LEAGUE; JOSEPH SCHEIDLER; PRO LIFE DIRECT ACTION LEAGUE; JOHN RYAN; OMAHA CHRISTIAN ACTION COUNCIL; DENNY HARTFORD; PRO LIFE NONVIOLENT ACTION PROJECT OF WASHINGTON, D.C.; JOHN CAVANAUGH O'KEEFE; JOHN SMITH(S); AND JANE SMITH(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 NATIONAL ABORTION RIGHTS ACTION LEAGUE OF PENNSYLVANIA, PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN, REPRODUCTIVE HEALTH AND COUNSELING CENTER, WOMEN'S SUBURBAN CLINIC, ALLENTOWN WOMEN'S CENTER AND NORTHEAST WOMEN'S CENTER, APPELLANTS.



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civ. Action No. 88-cv-05157).

Before: Greenberg, Roth and Rosenn, Circuit Judges.

Author: Roth

Opinion OF THE COURT

ROTH, Circuit Judge :

This is an action brought for declaratory and injunctive relief to stop blockades of abortion clinics. Aspects of this dispute have been before the courts for almost seven years. In the latest episode, the District Court for the Eastern District of Pennsylvania denied appellants' motion to hold Operation Rescue, Randall A. Terry, Robert Lewis, and Joseph Roach in contempt for violating a Revised Permanent Injunction, issued on July 17, 1989. Plaintiffs, National Abortion Rights Action League of Pennsylvania ("NARAL-PA"), Planned Parenthood Of Southeastern Pennsylvania, Elizabeth Blackwell Health Center for Women, Reproductive Health and Counseling Center, Women's Suburban Clinic, Allentown Women's Center, and Northeast Women's Center appeal that order. Because we find that the district court applied an incorrect legal standard in deciding the question of civil contempt, we will reverse the denial of the motion, and we will remand the case to the district court with instructions to grant the motion.

I.

The underlying action was originally brought on June 29, 1988, by eleven plaintiffs, consisting of NARAL-PA, seven abortion and family planning clinics, two pregnant women, and a physician who regularly performed abortions. It was brought in response to Operation Rescue's "publicly announced plans to close down clinics that offer abortions in the Philadelphia area by staging massive demonstrations and blockades at . . . [those] facilities." Roe v. Operation Rescue, 919 F.2d 857, 861 (3d Cir. 1990) ("Roe IV "). The plaintiffs sought declaratory and injunctive relief against these proposed activities. Operation Rescue and Randall Terry were among the named defendants.

After a hearing on June 30, 1988, the United States District Court for the Eastern District of Pennsylvania issued a temporary restraining order ("TRO") "enjoining the defendants and others acting in concert with them from trespassing on, blocking entrances at, or physically abusing or harassing persons working or obtaining services at abortion facilities in the metropolitan Philadelphia area from July 4," 1988, to July 9, 1988. Roe IV at 862.

In March 1989, the district court permanently enjoined the defendants from "trespassing on, blocking, obstructing ingress or egress from any facility at which abortions are performed in the City of Philadelphia or metropolitan area" and from "physically abusing or tortiously harassing persons entering, leaving, working at, or using any services at any facility at which abortions are performed in the City of Philadelphia and metropolitan area." Roe v. Operation Rescue, 710 F. Supp. 577, 589 (E.D. Pa. 1989) ("Roe II "), aff'd in part and rev'd in part in Roe IV. Subsequently, on plaintiffs' motion to modify the permanent injunction to provide for the United States Marshal for the Eastern District of Pennsylvania to read the injunction at protest sites, the district court granted the Revised Permanent Injunction at issue here. Roe v. Operation Rescue, No. 88-5157 (E.D. Pa. July 17, 1989) ("Roe III ").

The present appeal arose out of the third civil contempt motion to be filed in this on-going case. On September 7, 1993, plaintiffs sought civil contempt sanctions against Operation Rescue, Randall Terry, and non-party respondents Joseph Roach, Robert Lewis, and Owenna Nagy for alleged violations on July 9, 1993, of the district court's Revised Permanent Injunction. On December 1, 1993, the district court conducted a hearing on the motion.

At the hearing, the plaintiffs presented evidence that during the summer of 1993 Operation Rescue National organized, publicized, and raised money for a nationwide campaign to protest abortion rights in seven cities, designated "Cities of Refuge."*fn1 The campaign was to take place from July 8 through 18, 1993. Philadelphia was named as one of the "Cities of Refuge." Evidence established that Operation Rescue National, Randall Terry, and the Executive Director of Operation Rescue National, Keith Tucci, advertised and promoted the campaign in anti-abortion magazines.

The plaintiffs introduced into evidence a letter sent out over Randall Terry's name on stationery identifying Terry as "Founder, Operation Rescue." Terry acknowledged writing the letter. The letter asked supporters to contribute money and to participate personally "to help Operation Rescue National put on the Cities of Refuge." Appendix ("App.") at 183, 262-63.

The plaintiffs also submitted promotional literature, describing the Cities of Refuge campaign. These materials listed planned activities, including "rescues," which have been characterized in defendants' literature as "passive, non-violent direct action." See, e.g., App. at 265. Promotional fliers also listed local speakers who would address the participants in the Cities of Refuge Campaign at the Valley Forge Hilton on seven evenings during the campaign. Randall Terry, Keith Tucci, and Robert Lewis were among those listed as speakers. Terry's speech was scheduled for July 9. App. at 258-59, 261.

Testimony at the December 1 hearing established that from July 9th through the 18th several blockades and numerous anti-abortion demonstrations and protests occurred in the Philadelphia area. On the morning of July 9th, over 100 anti-abortion protestors assembled on the grounds of the Crozer-Chester Medical Center, in front of the Reproductive Health and Counseling Center ("RHCC"). The demonstrators, many of whom wore "Operation Rescue""Cities of Refuge" badges and "Rescue" arm bands, effectively blocked the clinic's three doors from approximately 10:30 a.m. until 3:30-3:45 p.m.

Witnesses testified that appellees Joseph Roach and Robert Lewis directed the protesters, moving those needing rest into the shade and interacting with the police. There was, however, no evidence that Roach or Lewis physically blocked a door. At about 12:45 p.m., a United States Marshal read the Revised Permanent Injunction over a bull horn to the protestors. Witnesses stated that Roach and Lewis, who conceded that they had actual knowledge ...


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