Opposition Brief — Pearson v. Planned Parenthood Margaret Sanger Clinic

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Bopreme Court, Us

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No. 93-828 as a

date 2st 19.54

IN THE | DFEICE OE THE CLERK |

Supreme Court of the United States o

OCTOBER TERM, 1993

> i

REVEREND ROBERT PEARSON, ET AL.,

Petitioners,

PLANNED PARENTHOOD MARGARET SANGER

CLINIC (MANHATTAN), ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

DAVID COLE

Center for Constitutional

Rights

600 New Jersey Ave., N.W.

Washington, DC 20001

(202) 662-9078

KIM J, LANDSMAN

JAMES M. BERGIN

EILEEN B. HERSHENOV

MORRISON & FOERSTER

1290 Avenue of the Americas

New York, New York 10104

(212) 468-8000

RUTH JONES

(Counsel of Record)

Deborah A. Ellis

NOW Legal Defense &

Education Fund

99 Hudson Street

New York, New York 10013

(212) 925-6635

Counsel for Respondents

TABLE OF CONTENTS

Page

EE, er a tr yes iii

i) oie, eee a elapse war eve wit wore Vii

EY diate ae sn be hw ea ole ee eS Vili

Counter Statement of the Case ...........-.+--- 1

Oe tn das a Ase be oe eos Oe 6a ee 2

i ta as) wk ose eke es bles ev eccceen es 6

Reasons For Denying The Writ............... 10

I. The Questions for Which

Petitioners Seek Certiorari

Were Litigated and Decided

ae ie oe nee 6 08 Os 11

A. The Section 1985(3) Issue

pS eee ee 12

B. The Civil vs. Criminal

Contempt Issue Was Decided

8 EI OES ra a er ae 13

II. Terry I Is Final and May Not

Be Attacked on this Appeal from

EE CEE os

Il. The Judgment in Terry I is Res

Judicata as to all Petitioners .............. 19

IV. This Appeal from Subsequent

Enforcement Proceedings Cannot

Reopen Issues Determined in

ROS «6 ck TR MER e SN eae et 21

V. This Case Should Not Be Held

Pending a Decision in Bagwell ............ 23

CONCLUGRIN 3.062 se ea enee eee 29

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Allen v. McCurry, 449 U.S. 90 (1980) .......... 14

fe ee 21

Baldwin v. Iowa State Traveling Men’s Ass’n,

ee ee tee cc ee cee 17

v ia Women’ linic,

ie kc se 8 passim

Brown v. Allen, 344 U.S. 443 (1953) .......... 15

Budinich v. E Dic! ¥ Co.

te ee eee een 22

Chambers v. Nasco, Inc., 111 S. Ct. 2123

ie ok we ows 27 n.17

Chicot C Drai eiet v3

ee 17

Commissioner v. Sunnen, 333 U.S. 591 (1948) . 27n.17

Dwares v. City of New York, 985 F.2d 94

EE 18

Erie R. Co. v. Tompkins, 304 U.S 64 (1938) .. 27n.17

Expert Electric, Inc, v. Levine, 554 F.2d 1227

(2d Cir.), cert. denied, 434 U.S. 903 (1977) ...... 19

F Inc. v itie,

Ge EY oc OG 6b 606 00 6 os 008 15, 17

Guffy v. Smith, 237 U.S. 101 (1915) ........ 27 n.17

V Virgini + of ian

See ee ES os wy 6 6 ihe bac ae @ 00s passim

I ional Union, United Mine Workers v

Bagwell, No. 92-1625, cert. granted, __ U.S. __ (June 1,

Cee iw ws 9-10

istillin Vv rgia,

Sey & ll, ae 16, 17

TO Vv ion ue of Birmi m,

954 F.2d 624 (llth Cir. 1992) ............ 20 n.13

Maggio v. Zeitz, 333 U.S. 56 (1948) ........... 22

Rescue, 8 F.3d 680 (9th Cir. 1993) ....... 18, 20 n.13

ion ization for Women v ion R :

eee as es We OE nv dae ct cures 18

Nevada v. United States, 463 U.S. 110 (1983) ..... 19

w ‘ W.

Terry, 697 F. Supp. 1324 (S.D.N.Y. 1988), and

704 F. Supp. 1247 (S.D.N.Y.), appeals

consolidated and aff'd as modified, 886

F.2d 1339 (2d Cir. 1989), cert. denied,

SOS We ee a GS BS 6G Soe cow passim

New York State Nat’l Org. for Women v. Terry,

732 F. Supp 388 (S.D.N.Y. 1990) and 737 F.

Supp. 1350 (S.D.N.Y. 1990), appeals consolidated

and aff'd, 961 F.2d 390 (2d Cir. 1992), cert.

113 S. Ct. 753 (1993), and reinstating judgment

on remand, 996 F.2d 1351 (2d Cir. 1993) ...... passim

Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989) . 22

hoi W. w York v

Walker, 994 F.2d 989 (2d Cir.), cert. denied

TPS & 1h 7. eR A OS | ae 15

R nitw v. Nati

Relations Board, 324 U.S. 9 (1945) ............ 20

Roe v. Operation Rescue, 919 F.2d 857

Se a es 6 2S Saas 6 0 0 66-6. 20 n.13

Spallone v. United States,

Me EE 6 eds oc eo vee cece 11, 27.17

Stern v. South Chester Tube Co., 390 U.S. 606

Stone v, Williams, 970 F.2d 1043 (2d Cir. 1992),

cert, Gemted. 115 S. Ci. 2558 CIGBR) ccc cece cecn 19

Talluto v, Planned Parenthood Margaret

Sanger Clinic, cert. denied, 112 S. Ct. 957 (1992) .... 7

Teague v. Lane, 489 U.S. 288 (1989)...... 17 n.10, 23

3855 B’ way Laundromat, Inc. v. 600 W. 161st

St. Corp., 156 A.D.2d 202, 548 N. Y.S.2d 461

(ict DGD TPGEE ccc tases woebe buses 27-28 n.17

em 8 fF i Re RS ine errr 18

United States v. Rylander, 460 U.S. 752 (1983) .... 22

Virgini ; W Vv

Rescue, 914 F.2d 582 (4th Cir. 1990), rev'd

in_ part and aff'd in part sub nom. Bray v._

Alexandna Women’s Health Clinic,

BES iis. Ge ee ES cee ida ee kok ba eet 20 n.13

White v. New Hampshire Dep’t of Employment

Sette, Gio We. Ge GE hea 4 oa 0 4a ee eles 22

Statutes

42 U.S.C.

GS See. so 6 < 0a See we ee eee passim

8. Sere ee er passim

S. Ge. Bee TAS és sou cus lee we eee 10, 18

Il.

vii

Questions Presented

Whether on remand from this Court the Court of

Appeals for the Second Circuit correctly reinstated its

opinion, finding that applications for further relief from

that judgment should be made to the District Court.

Whether Petitioners are barred in these collateral

procéedings from relitigating the merits of the

underlying injunction which is part of a final judgment

in prior litigation.

Vill

Respondents accept Petitioners’ list of the parties. In

accordance with Rule 28.1 of the Rules of this Court,

Respondents report that Eastern Women’s Center, Inc.,

Planned Parenthood of New York City, Inc., New York

State National Abortion Rights Action League ("NARAL"),

Inc., Religious Coalition for Abortion Rights - New York

Metropolitan Area, and the National Organization for

Women are corporations. None of them have parent or

subsidiary companies, but New York State NARAL, Inc. is

affiliated with the National Abortion Rights Action League,

Inc. and Planned Parenthood of New York City, Inc. is

affiliated with Planned Parenthood Federation of America,

Inc.

a tee ane ati

— » aes See ee re

i i

Counter Statement of the Case

Petitioners’ statement of the case contains numerous

misstatements of fact and law and Respondents do not adopt

it.

Petitioners are eight individuals and two organizations

who were held in contempt for knowingly violating one or

more injunctive orders, including a permanent injunction

(collectively, the "injunction"), issued by the United States

District Court for the Southern District of New York. The

injunction prohibits Petitioners from blocking access to

women’s health clinics where abortions are performed in

New York City and in Westchester, Suffolk and Nassau

counties in New York State.

The injunction was incorporated in a final judgment

entered by the District Court in 1989. The injunction

provides for prospective sanctions (including attorney’s

fees) for violations of its terms. The District Court’s final

judgment and the injunction were unanimously affirmed by

the United States Court of Appeals for the Second Circuit

in 1989. A petition to this Court for a writ of certiorari

was denied in 1990. That action, denominated "Terry I,”

is reported as

Terry, 697 F. Supp. 1324 (S.D.N.Y. 1988) and id., 704 F.

Supp. 1247 (S.D.N.Y.),

appeals consolidated and aff'd as

modified, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495

U.S. 947 (1990).

The petition for certiorari now before the Court is from

collateral proceedings brought by plaintiffs (collectively,

"N.O.W.") for contempt sanctions (including attorney’s

fees) for violating the injunction, and for prevailing party

attorney’s fees under 42 U.S.C. § 1988. These

proceedings, denominated "Terry II,” are reported at 732

F. Supp. 388 and 737 F. Supp. 1350 (S.D.N.Y. 1990),

appeals consolidated and aff'd, 961 F.2d 390 (2d Cir.

1992), cert. granted, judgment vacated, and remanded for

reconsideration in light of Bray v. Alexandria Women’s

Health Clinic, 113 S. Ct. 753 (1993), and reinstating

judgment on remand, 996 F.2d 1351 (2d Cir. 1993). The

present Petitioners include three of the named defendants in

Terry I (Operation Rescue, Terry, and Herlihy), and seven

non-party contemnors found to have violated the injunction

in concert with the named defendants.

The petition seeks review of an order of the Court of

Appeals reinstating its initial judgment pursuant to its prior

opinion and holding that "[a}pplications for such relief in

light of Brayf v. Alexandria Women’s Health Clinic, 113 S.

Ct. 753 (1993),] as dismissal of the federal claims, a

remand of the action to state court, or reconsideration of

the contempt sanctions litigated on this appeal should be

addressed in the first instance to the district court."

Petition App. at A-3, A-6. As described below, each of the

questions raised by Petitioners was fully litigated and finally

determined in Terry I. Respondents contend that these

issues may not be relitigated in collateral proceedings, that

the actions of the Court of Appeals on remand were correct

and, therefore, that the petition should be denied.

TERRY I

Plaintiffs initially brought this action in state court.'

The complaint (and the amended complaint) states

seven state law causes of action and one federal claim under

42 U.S.C. § 1985(3). Respondent’s App. at A-13, A-30.

Defendants removed to the United States District Court for

the Southern District of New York on May 3, 1988, after

the state court judge had issued two temporary restraining

orders in response to defendants’ demonstrations blocking

access to certain women’s health clinics. Petition App. at

A-96. The second of the state court orders, issued on

May 2, 1988, enjoined defendants from “trespassing on,

blocking, obstructing ingress into or egress from any

facility at which abortions are performed in the City of

New York, Nassau, Suffolk or Westchester Counties.” Id.

at A-95-A-96. On May 3, 1988, the same day that

defendants removed the action to federal court, defendants

Terry and Operation Rescue violated the order by blocking

access to an abortion clinic. Id. at A-96.

As a result of Terry’s and Operation Rescue’s complete

disregard for the state court’s temporary restraining order,

the District Court decided on May 4, 1988, to continue and

adopt that order, but modified it to add coercive sanctions

of $25,000 for each subsequent daily violation.? Terry I,

697 F. Supp. at 1330; Petition App. at A-96. The

contempt continued on May 5 and 6, when Operation

Rescue once again blocked access to medical facilities in

Long Island and New York City, respectively. 697

F. Supp. at 1331. Thereafter, plaintiffs moved for civil

contempt sanctions against Terry and Operation Rescue for

violating the District Court’s injunction.

Neither Terry nor Operation Rescue challenged any

facts relating to the contempt. Terry’s and Operation

2 The state court order was also modified to require

defendants to notify plaintiff-intervenor New York City in

advance of any demonstrations.

Rescue’s opposition to the contempt motion included the

same legal argument they seek to raise in this collateral

proceeding: they argued that contempt fines assessed after

the completion of acts violating a "prohibitory" injunction

are by definition criminal penalties because the

contumacious acts cannot be undone or “purged.” Id. at

1329-30. Defendants maintained that because the fines

were criminal penalties, they could not be imposed without

affording the accused contemnors such rights as a jury trial

prosecuted by the U.S. Attorney’s office and the benefit of

the criminal law standard of proof.

The District Court considered and rejected this

argument, and imposed $50,000 in civil contempt fines

jointly and severally against Terry and Operation Rescue to

be paid to plaintiffs.* The court ruled that the prospective

civil contempt sanctions were designed to enforce a court

order and that defendants had been given ample opportunity

to avoid the fines by complying with that order. Id. On

the same day, October 27, 1988, the District Court

converted the temporary restraining order into a preliminary

injunction.

On January 10, 1989, the court granted summary

judgment to plaintiffs on their § 1985(3) and state law

nuisance and trespass claims, and entered a permanent

injunction. Terry I, 704 F. Supp. 1247 (S.D.N.Y. 1989).

In opposition to plaintiffs’ summary judgment motion, the

defendants unsuccessfully raised another argument they now

> The court also assessed $19,141.00 for costs payable

to the City resulting from defendants’ failure to provide

advance notification of the location of the demonstrations.

Petition App. at A-98.

seek to bring before this Court: that N.O.W.’s federal

claim did not state a cause of action under 42 U.S.C.

§ 1985(3). Id. at 1258-60.

The Court of Appeals consolidated defendants’ appeals

from the summary judgment order and the contempt order,

and unanimously upheld both.* Terry 1, 886 F.2d 1329.

The Court of Appeals held that "[t]he prospectively fixed

penalties were plainly intended to coerce compliance with

the Court’s order and to preserve the parties’ then-existing

legal rights” and were therefore civil.’ Terry I, 886 F.2d

at 1350-51 (citation omitted). The appellate court also held

that the District Court had properly issued a permanent

injunction. Id. at 1362-64. The Court of Appeals further

rejected defendants’ arguments against the claim based on

§ 1985(3), and affirmed summary judgment on N.O.W.’s

federal and state law causes of action. Id. at 1361-62.

Defendarits petitioned this Court for a writ of

certiorari, renewing their arguments that the contempt fines

were criminal in nature, Respondents’ App. at A-55-A-58,

and that plaintiffs’ complaint failed to state a cause of

action under § 1985(3). Id. at 5-11. This Court denied

certiorari. 495 U.S. 947.

* These appeals were also consolidated with an appeal

of an interlocutory order granting sanctions against

defendants for failure to provide discovery. Terry I, 886

F.2d 1345, 1354-57.

The one modification made by the Court of Appeals

was to direct that the $50,000 in contempt fines would be

payable to the U.S. Treasury instead of to N.O.W.

TERRY I

Plaintiffs initiated these collateral proceedings (Terry

I) by moving for contempt for multiple violations of the

injunction against defendants Operation Rescue, Terry and

Herlihy, and ten non-parties, seven of whom are Petitioners

here: Pearson, Lee, Foreman, McMonagle, White, Slattery

and Bistate Operation Rescue Network (B.O.R.N.). Of

these, only Pearson denied acting with notice of the

injunction.® The District Court made extensive findings

detailing the knowledge each non-party contemnor had of

the injunction, the close association that existed between the

non-parties and the defendants, and the fact that the non-

parties acted in concert with defendants. Petition App. at

A-110, A-119-A-134. The District Court concluded and

Petitioners no longer dispute that the injunction bound each

of them.’ The Terry II contemnors renewed their

challenge to the fines previously litigated and rejected in

Terry I, and again contended that the contempt sanctions

were criminal because they were being punished for past

conduct rather than being coerced into compliance. Petition

App. at A-106-A-107, A-111-A-112. They also argued that

plaintiffs failed to state a claim under § 1985(3). Applying

* The District Court held hearings before finding

Pearson and Slattery in contempt. Petition App. at A-38-A-

39 and A-132-A-134.

’ The District Court made all of the additional

findings necessary under Fed. R. Civ. P. 65 to support

holding the defendants and non-parties in contempt.

Petition App. at A-108-A-134. Petitioners do not raise any

of those determinations before this Court.

ay a FT

the holding in Terry I, the District Court rejected both

arguments, Petition App. at A-106, and the Terry II

contemnors appealed.

After the District Court’s decision holding defendants

and non-party Petitioners in contempt, N.O.W. moved for

attorney’s fees against defendants pursuant to 42 U.S.C. §

1988. Plaintiffs also sought attorney’s fees from defendants

and non-party contemnors for the cost of bringing the

contempt motion.

The defendants conceded that N.O.W. was a

"prevailing party,” but argued that “special circumstances

exist which render a fee award in this case unjust.”

Petition App. at A-64-A-65. The District Court rejected

this and other arguments, and awarded prevailing party

attorney’s fees against defendants, and additional attorney’s

fees pursuant to the injunction against defendants and non-

party contemnors. Defendants and non-party contemnors

appealed, and this was consolidated with their earlier appeal

of the contempt sanctions.

While this appeal was pending in the Court of Appeals,

Petitioners filed a writ of certiorari requesting this Court to

review the underlying judgment and injunction

"“contemporaneously with Bray, or at least [to hold the case]

for disposition pending decision in Bray." Respondents’

App. A-86. That petition, the first of three filed to date by

Petitioners in the Terry II proceedings, was denied on

January 21, 1992. Talluto v. Planned Parenthood Margaret

Sanger Clinic, 112 S. Ct. 957 (1992).

On April 13, 1992, the Court of Appeals affirmed the

District Court’s award of attorney’s fees under § 1988 and

upheld the contempt sanctions against the Petitioners.

Petition Appendix D. The appellate court ruled that both

the viability of plaintiffs’ federal civil rights claims and the

merits of the injunction (including the civil nature of the

contempt fines) had been decided in Terry J and relitigation

of those issues was foreclosed. Petition App. at A-19-A-

20.

The Court of Appeals noted that the Supreme Court

was considering Bray at the time the decision in Terry I]

was rendered, but expressly stated that a reversal in Bray

was unlikely to have any effect on the underlying injunction

because that injunction was also premised on the separate

and independent state grounds of public nuisance and

trespass. Id, at A-20-A-22. The appellate court stressed

that Petitioners would only benefit from a ruling in Bray

that rejected a federal § 1985(3) claim against abortion

clinic trespassers if this Court also found that plaintiffs’

federal cause of action had been so insubstantial as to

deprive federal courts of their pendent jurisdiction over any

state law claims. Id, at A-22.* In August 1992, the

Petitioners filed their second petition for certiorari in

Terry II, in which they raised the same challenges to the

federal law basis for the underlying injunction and to the

imposition of civil contempt sanctions.

This Court decided Bray on January 13, 1993. The

Court held that, on the record before it, the respondents in

that case had not stated a claim under the deprivation clause

of § 1985(3), but the Court expressly held that suits stating

the same claim under § 1985(3) brought prior to the

decision in Bray were not so "wholly insubstantial and

$ Petitioners do not, in fact, contest the District

Court’s jurisdiction and explicitly reject any suggestion that

they seek a remand to state court. Petition at 25 n.14.

frivolous” as to deprive a district court of jurisdiction.

Bray, 113 S. Ct. at 768. On February 22, 1993, the Court

granted certiorari in Terry II, vacated the judgment below,

and remanded the case for further consideration in light of

Bray. Petition App. at A-7.

The Court of Appeals requested the parties to submit

letter briefs regarding the proper disposition of Terry II

upon remand.’ In a July 2, 1993, per curiam decision, the

Court of Appeals reinstated its initial judgment and

suggested that Petitioners should address applications for

relief such as dismissal of the federal claims, remand to

state court, or reconsideration of the contempt sanctions

previously litigated to the District Court in the first

instance. Petition App. at A-5-A-6. Petitioners moved for

a rehearing in banc on July 16, 1993, which the Court of

Appeals denied on August 23, 1993.

Ignoring the suggestion of the Court of Appeals,

Petitioners now seek review by this Court for a third time,

but raise the same challenges to the contempt sanctions and .

the § 1985(3) claim that the District Court decided

adversely to defendants in Terry J. This time Petitioners,

in an effort to link their collateral attack on the injunction

to a case in which the Court has granted certiorari, copied

verbatim the question presented in an unrelated case,

I ional Union. United Mine Worl 7

Bagwell, No. 92-1625, which was argued on November 29,

® N.O.W. argued in its brief that Bray did not affect

the issues before the Court of Appeals in this collateral

contempt and fees litigation and, therefore, that any request

for relief from the underiying injunction must be directed to

the District Court pursuant to Rule 60(b) of the Federal

Rules of Procedure.

1993. Petitioners have asked the Court to consider this

case with Bagwell, or to hold it pending Bagwell’s

resolution.

Reasons For Denying The Writ

Petitioners have not presented any “special and

important reasons" for granting the writ. S. Ct. R. 10.1.

The Court of Appeals’ decision reinstating its former

mandate is not contrary to this Court’s ruling or in conflict

with the decision of any other Court of Appeals, and it is

fully supported by important public policies of finality.

The petition’s fundamental flaw is its failure to

acknowledge the collateral nature of this proceeding. This

petition for a writ of certiorari represents only the latest of

Petitioners’ numerous attempts to mount a collateral attack

on a final judgment and permanent injunctiop entered years

ago by the District Court in Terry I, affirmed in all relevant

respects by the Court of Appeals for the Second Circuit,

and for which certiorari was denied by this Court. Terry I

is therefore res judicata, and it would undermine long-

settled principles of finality for this Court even to consider

the questions stated in the petition for writ of certiorari.

Petitioners’ argument that the Court of Appeals did not

properly apply the rule of Bray on remand is simply

misplaced. Bray has no effect on Terry I, because the

retroactive effect of new decisions is expressly limited to

matters still pending on direct appeal, and does not apply to

collateral attacks on final judgments. See Harper v.

Virginia Dep't of Taxation, 113 S. Ct. 2510 (1993).

Moreover, there is no occasion for this Court to revisit the

well-settled rule that one may not challenge the merits of an

injunction by violating it. Because the merits of Terry I

can only be reconsidered in the District Court under Rule

60(b), the Court of Appeals properly reinstated its prior

judgment and advised Petitioners that any application for

further relief should be “addressed in the first instance to

the District Court." Petition App. at A-6.

Petitioners have also misrepresented the contempt

proceedings below in an attempt to link their case to a

currently pending case argued to the Court on November

29, 1993: International Union, United Mine Workers of

America v. Bagwell, No. 92-1625. This Court’s grant of

certiorari in Bagwell is of no benefit to the Petitioners,

because the allegedly identical issue -- the distinction

between civil and criminal contempt -- was finally decided

in Terry I and is not properly before the Court. Because

that issue is no longer open on direct appeal, Bagwell can

have no effect on these proceedings, regardless of its

outcome. As with Terry I’s resolution of the § 1985(3)

issues, the fact that the Court granted certiorari in a later

case on the contempt question does not allow Petitioners to

evade the res judicata effect of a final judgment.

The Questions for Which Petitioners Seek

Certi i Were Litigated and Decided In T i

Each of the questions Petitioners seek to bring before

this Court was fully litigated and finally determined in

Terry I, and Petitioners may not, simply through persistent

disobedience of the injunction, circumvent the ordinary

rules of finality.

Here, as in Spallone v. United States, 493 U.S. 265,

273 (1990),

[t]he issue before [the Court] is relatively narrow.

There can be no question about the liability of [the

defendants]: the District Court imposed such

liability on [the defendants]; its decision was

affirmed in all respects by the Court of Appeals,

and we denied certiorari. Nor do we have before

us any question as to the District Court’s remedial

order; the Court of Appeals found that it was

within the bounds of proper discretion, . . . and

we denied certiorari.

The merits underlying the injunction, the sanctions for

violating it, and the question whether plaintiffs were

the prevailing parties were all resolved by the District

Court in Terry I. The Court of Appeals affirmed and this

Court denied certiorari. Since the Petitioners present no

other issues that were not already determined in Terry I,

there is no issue properly before this Court at this time, and

the Court of Appeals was correct to advise Petitioners that

their only recourse was in the District Court.

A. The Section 1985(3) Issue Was Decided in Terry I.

In an effort to convince this Court to revisit the merits

of Terry I, Petitioners state, incorrectly, that Terry II

affirmed "the merits of Respondents’ § 1985 claims,”

Petition at 22, and held that "42 U.S.C. § 1985(3) provides

a cause of action for obstructing access to abortion

businesses." Id. In fact, these issues were decided in

Terry I, see 886 F.2d 1339, 1357-62, and the Court of

Appeals in Terry II correctly declined to revisit them.

Petition App. at A-19-A-22.

The District Court in Terry I plainly considered

Petitioners’ question as to whether "§ 1985(3). . .

provide[s] a cause of action against anti-abortion

demonstrators for obstructing access to abortion

businesses,” Petition at ii, and the Court concluded that it

did. 704 F. Supp. at 1258-60. The Court of Appeals

considered the same question on appeal, 886 F.2d at 1357-

59, and affirmed the District Court’s ruling. Petitioners

squarely raised this issue as the first question in their

petition for certiorari in Terry I, see Respondents’ App. at

A-47-A-53, and this Court denied the petition. In short,

Petitioners had all the opportunity to litigate this issue that

the law provides, and they lost at every level.

B. The Civil vs. Criminal Contempt

Issue Was Decided in Terry I.

The Court of Appeals correctly held in Terry II that the

civil-criminal contempt issue had been adjudicated in Terry

[Appellants] argue that the contempt fines imposed by

the district court were criminal, rather than civil, in

nature, and that appellants were not accorded

procedural protections required in criminal contempt

proceedings; we ruled to the contrary in Terry I.

Petition App. at A-20.

That holding is completely supported by the record.

When Respondents moved for contempt in response to the

violations by Petitioners Terry and Operation Rescue of the

May 4, 1988, temporary restraining order, those Petitioners

opposed the motion on the same grounds they and the other

Petitioners seek to raise here: that prospective contempt

fines, assessed after violations of an injunction, constitute

criminal penalties that can only be imposed after affording

Petitioners the full panoply of due process protections

available to criminal defendants. Terry 1, 697 F. Supp. at

1329-30. Petitioners renewed this argument in the Court of

Appeals, again without success. Terry I], 886 F.2d at 1350-

1351. This Court denied certiorari. 495 U.S. 947.

Thereafter, the merits of the injunction were simply no

longer open to challenge. See, e.g., Allen v. McCurry,

449 U.S. 90 (1980) (res judicata bars relitigation of any

claim between parties where there was previously a

judgment on the merits).

ii.

Terry I Is Final and May Not Be Attacked

on this Appeal from Collateral Proceedings.

The District Court in Terry I granted summary

judgment against all defendants on the merits, and that

decision is final. The court awarded the substantive relief

plaintiffs sought: a permanent injunction (a) prohibiting

Petitioners from barring access to facilities performing

abortions, (b) prohibiting Petitioners from harassing women

seeking to obtain abortions at such facilities, and

fees) for violations of the injunction. Terry I, 704 F. Supp.

at 1264; Respondents’ App. at A-30-A-31. The decision

left nothing to be decided, except matters of enforcement

and other collateral issues, including award of attorney’s

fees, that might flow from the judgment itself. Therefore,

the District Court’s decision in Terry I was final in every

regard.

Petitioners conceded the finality of the District Court’s

summary judgment order in their briefs on appeal in

Terry 1. See Respondents’ App. at A-109 (Supplemental

Brief for Defendants-Appellants) (District Court’s decision

on the merits granted "final and permanent relief”). The

Court of Appeals’ opinion in Terry I further shows that the

District Court’s summary judgment order was final,

because that judgment brought up on appeal certain

interlocutory orders which, by themselves, were

“unchallengeable by appeal until final judgment.” 886 F.2d

at 1350. Indeed, if the judgment had not been final, the

Court of Appeals would have had no jurisdiction to review

the District Court’s earlier interlocutory orders. See Pro-

choice Network of Western New York v. Walker, 994 F.2d

989, 994-95 (2d Cir. 1993) (no jurisdiction to review

interlocutory civil contempt order), cert. denied sub nom.

Syversen v. Summit Women’s Ctr., 114 S. Ct. 185 (1993).

This Court’s denial of Petitioners’ request for a writ of

certiorari, 495 U.S. 947, while not a determination on the

merits, brought an end to any opportunity for direct review

of the District Court’s final judgment. As Justice Jackson

noted in Brown v. Allen, 344 U.S. 443, 543 (1953)

(concurring opinion):

The fatal sentence that in real life writes finis to many

causes cannot in legal theory be a complete blank. . . .

[FJor the case in which certiorari is denied, its

minimum meaning is that this Court allows the

judgment below to stand with whatever consecuences it

may have upon the litigants involved under the doctrine

of res judicata.... A civil or criminal judgment

usually becomes res judicata in the sense that it is

binding and conclusive even if new facts are discovered

and even if a new theory of law were thought up... .

The res judicata consequences of a final judgment on

the merits are not "altered by the fact that the judgment

may have been wrong or rested on a legal principle

subsequently overruled in another case." Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394, 398

(1981). Therefore, neither this Court’s decision last year in

Bray nor any decision this Court may make in the Bagwell

case can have any effect on the finality of the judgment in

Terry I.

The rule of full retroactivity of this Court’s decisions

applies only to direct appeals, not to collateral proceedings

such as this. See Harper v. Virginia Dep’t of Taxation,

113 S. Ct. 2510, 2517 (1993); James B. Beam Distilling

Co. v. Georgia, 111 S. Ct. 2439 (1991). In Harper, this

Court held that when the Court applies a rule of federal law

to the parties before it, that rule

must be given full retroactive effect in all cases still

open on direct review and as to all events, regardless

of whether such events predate or postdate our

announcement of the rule.

Harper, 113 S. Ct. at 2517 (emphasis added).

Petitioners treat Harper as if it referred simply to “all

cases" and “all events,” Petition at 21, and leave out the

crucial phrase that restricts its holding to cases “still open

on direct review." That qualifier is, however, critical, and

is the reason why Bray has no effect on this case: Harper

has no application to a collateral attack on a final judgment

such as Petitioners attempt here.

Harper did not purport to make new law, but instead

relied on Beam. That reliance highlights the distinction

between direct review and collateral attack. In Beam, a

majority of the Justices (in four separate opinions, none

commanding a majority) endorsed a rule of full retroactivity

for all cases then on direct review. At the same time,

several members of the Court explicitly noted that the rule

of retroactivity stopped short at the bar of res judicata. For

example, Justice Souter’s opinion in Beam, joined by

Justice Stevens, noted that

[o}f course, retroactivity in civil cases must be limited

by the need for finality, see,

Chicot County Drainage

District v. Baxter State Bank, 308 U.S. 371, 60S. Ct.

317, 84 L. Ed. 329 (1940); once suit is barred by res

judicata or by statutes of limitation or repose, a new

rule cannot reopen the door already closed.

Beam, 111 S. Ct. at 2446. Any perceived harshness of this

result is counterbalanced by the public interest in the

finality of judgments:

This Court has long recognized that "[p]ublic policy

dictates that there be an end of litigation; that those

who have contested an issue shall be bound by the

result of that contest, and that matters once tried shall

be considered forever settled as between the parties.”

Federated Department Stores v. Moitie, 452 U.S. 394, 401

(1981) (quoting Baldwin v. lowa State Traveling Men’s

Ass'n, 283 U.S. 522, 525 (1931))."°

‘© Nothing in the facts or rationale of either Harper or

Beam suggests that the rule of full retroactivity is available

on collateral attack. On the contrary, Justice Scalia's

concurrence in Harper specifically discussed the difference

between standards of retroactivity on direct appeal and

collateral review. Harper, 113 S. Ct. at 2520-21 (Scalia,

J., concurring) (discussing Teague v. Lane, 489 U.S. 288

(1989)). Indeed, Petitioners apparently concede that a final

judgment is not vulnerable to collateral attack merely

because of a subsequent change in law. See Petition at 21

("by reinstating its prior judgment, the Court of Appeals

has in effect entered a final judgment..., thereby

Because Bray has no direct application to a final

decision such as Terry I, the decision of the Court of

Appeals reinstating its judgment does not conflict with the

decision of any other circuit court that applied Bray on a

direct appeal. See, ¢.g., National Abortions Federation v.

Operation Rescue, 8 F.3d 680 (9th Cir. 1993) (finding Bray

required dismissal of claim under § 1985(3)’s deprivation

clause, but not under hindrance clause). For the same

reason, the Court of Appeals’ decision is not in conflict

with subsequent proceedings in Bray. See National

Organization for Women v. Operation Rescue, 816 F.

Supp. 729 (D.D.C. 1993) (on remand, district court upheld

pendent jurisdiction in light of Bray, rejected request to

vacate injunction, and held defendants in contempt). Nor

does the Court of Appeals’ decision conflict with other

decisions of the Court of Appeals for the Second Circuit

itself. Town of West Hartford v. Operation Rescue, 991

F.2d 1039 (2d Cir. 1993), amply demonstrates that the

Court of Appeals for the Second Circuit does apply Bray

retroactively to vases still open on direct review. See West

Hartford, 991 F.2d at 1045-49. See also Dwares v. City of

New York, 985 F.2d 94, 101 (2d Cir. 1993).

Consequently, there is no "special and important” reason to

grant certiorari in this case. S. Ct. R. 10.1.

rendering any application to the District Court futile")

(emphasis in original). Petitioners fail to acknowledge,

however, that it is Terry I that is the final judgment.

Il.

The Judgment in Terry I is Res

Judicata as to all Petitioners.

Non-party Petitioners Pearson, Lee, Foreman,

McMonagle, White, Slattery and B.O.R.N., who were not

directly involved in Terry I, do not contend in this Court

that Terry I is not res judicata as to them, and any such

argument would be futile. Where, as here, the claim being

litigated is the same as that decided in the prior litigation

and where a close relationship exists between parties and

non-parties such that the interests of the non-parties were

effectively represented before the court, the resulting

judgment is res judicata against both party and non-

party."’ See, e.g., Nevada v. United States, 463 U.S.

110, 129 (1983) (persons in privity with party barred by

doctrine of res judicata are similarly barred from

relitigating claims); Stone v. Williams, 970 F.2d 1043,

1060 (2d Cir. 1992) (due process does not require matters

to be relitigated at behest of one whose legal interests were

fairly represented in prior proceeding), cert. denied, 113 S.

Ct. 2331 (1993); Expert Electric, Inc. v. Levine, 554 F.2d

1227 (2d Cir.) (individuals are bound by judgments entered

against representative association where individuals’

interests were advanced by association in earlier litigation),

cert. denied, 434 U.S. 903 (1977).

Here, the District Court’s extensive factual findings

under Rule 65(d) demonstrate the necessary elements of

'! In any event, non-party Petitioners may not relitigate

the validity of attorney’s fees awarded under 42 U.S.C. §

1988, because those fees were only assessed against the

defendants. Petition App. at A-87.

privity between party and non-party Petitioners. Cf. Regal

Knitwear Co. v. National Labor Relations Board, 324 U.S.

9, 14 (1945) (Rule 65 is derived from concept of privity).

In particular, the District Court detailed the close

association between each of the non-party Petitioners and

Operation Rescue. The court found that Operation Rescue

had called for, coordinated and led all of the demonstrations

at which the Petitioners violated the injunction.’ The

court made findings regarc.ing the control Operation Rescue

and Randall Terry exercised over the non-parties and the

manner in which the non-parties acted in concert with the

named defendants to violate the injunction after receiving

notice of it." Petition App. at A-110, A-119-A-134.

Nor can there be any argument that the interests of the

'2 The Court of Appeals had previously found that

Operation Rescue “tacitly enrolls members." Terry I, 886

F.2d at 1352.

8 The close and ongoing association between the

parties and non-parties is further underscored by the

numerous cases around the country where various

combinations of these same Petitioners have participated in

similar blockades of abortion clinics coordinated by

Operation Rescue and have been named repeatedly as

defendants in litigation similar to this. See, e.g., National

Abortions Federation v. Operation Rescue, 8 F.3d 680 (9th

Cir. 1993); Lucero v. Operation Rescue of Birmingham,

954 F.2d 624 (11th Cir. 1992); Roe v. Operation Rescue,

919 F.2d 857 (3d Cir. 1990); Virginia Nat'l Org. for

Women _v. Operation Rescue, 914 F.2d 582 (4th Cir.

1990), rev’d in part and aff'd in part sub nom. Bray v.

Alexandria Women’s Health Clinic, 113 S. Ct. 753 (1993).

non-parties in challenging the legal basis for upholding the

civil contempt sanctions were not assiduously represented

by the parties’ counsel in Terry 1. Indeed, all but one of

the non-party Petitioners (and all three of the party-

Petitioners) were represented in the Court of Appeals by the

same counsel who represented defendants Randall Terry

and Operation Rescue in Terry I.“ See Alpert’s

Newspaper Delivery Inc. v. New York Times Co., 876

F.2d 266, 271 (2d Cir. 1989) (where two groups of

litigants used the same attorneys, litigation strategy was

centrally coordinated, and the allegations were identical,

sufficient identity of parties existed to bar relitigation of

previously raised claims).

The Petitioners not parties to Terry I do not seek to

challenge the reach of Terry I in their petition, Petition

App. at A-24-A-25, and in any event have not established a

record that would enable this Court to address this issue.

As a result, the decision in Terry I is res judicata as to both

party and non-party Petitioners, and all Petitioners are

precluded from relitigating the merits of Terry I in this

forum.

IV.

This Appeal from Subsequent Enforcement Proceedings

C tR I Determined in T. I

The District Court’s subsequent award of attorney’s

fees pursuant to 42 U.S.C. § 1988 and additional contempt

'* Petition App. at A-5, A-10. In addition, Terry,

Operation Rescue, Herlihy, McMonagle, and White were

represented by the same counsel in the District Court.

Petition App. at A-56.

sanctions for violation of the permanent injunction in no

way impaired the finality of the judgment in Terry I. In

White v, New Hampshire Dep’t of Employment Security,

455 U.S. 445, 451-52 (1982), this Court “all but held” that

"a request for attorney’s fees under 42 U.S.C. § 1988" did

not prevent the underlying order from being final. ;

Budinich v. Becton Dickenson & Co., 486 U.S. 196, 199-

200 (1988). Budinich confirmed that that holding “was

based on our conclusion that ‘a request for attorney's fees

under § 1988 raises legal issues collateral te’ and ‘separate

from’ the decision on the merits,” id. at 200 (quoting

White, 455 U.S. at 451-52), and established "a uniform

rule that an unresolved issue of attorney’s fees for the

litigation in question does not prevent judgment on the

merits from being final." Id. at 202. See also Osterneck

v. Ernst & Whinney, 489 U.S. 169, 174, (1989) (attorney’s

fee award is uniquely separable from the underlying merits

of the controversy). Therefore, Petitioners may not reopen

the merits of the judgment in an appeal from the attorney's

fee award.

Similarly, violating the injunction does not give

Respondents another opportunity to litigate the permanent

injunction. “A contempt proceeding does not open to

reconsideration the legal or factual basis of the order

alleged to have been disobeyed and thus become a retrial of

the original controversy.” United States v. Rylander, 460

U.S. 752, 756 (1983) (quoting Maggio v. Zeitz, 333 U.S.

56 (1948)). The reason for this was adamantly stated in

Maggio: "The procedure to enforce a court’s order

commanding or forbidding an act should not be so

inconclusive as to foster experimentation with

disobedience.” 333 U.S. at 69. Rather, where, as here, an

action has resulted in “a final order, it becomes res judicata

and is not subject to collateral attack in the contempt

proceedings.” Id., 333 U.S. at 68.

Vv.

This Case Should Not be Held

Pending A Decision in Bagwell.

Because Bagwell has already been fully briefed and

argued, consolidation of the two cases is not feasible. In

any e¢vent, no benefit would be gairied by holding this case

pending resolution of Bagwell, regardless of its outcome.

If the Court finds the Bagwell fines to be civil, that

decision clearly will not affect the contempt judgments in

this case. If the Court decides in Bagwell that fines

imposed pursuant to a previously established fee schedule

constitute criminal penalties, that determination also will

have no effect on these proceedings, because Bagwell will

not have automatic retroactive application to the contempt

sanctions in Terry ]. See Harper v. Virginia Dep’t of

Taxation, 113 S. Ct. 2510 (1993); Teague v. Lane, 489

U.S. 288 (1989).'"° Under these circumstances, denying

this petition will in no way “tip the hand" of the Court as to

its views of the merits of Bagwell.

Moreover, this case is factually different from Bagwell

in several significant respects. Unlike the petitioners in

Bagwell, Petitioners cannot plausibly raise any question at

this time regarding the appropriateness of the amount of

sanctions. The District Court in Terry I made a substantial

inquiry into the financial ability of the defendants to pay the

‘Ss _ Denial of certiorari does not leave Petitioners

without recourse if the Bagwell contempt fines are found to

be criminal in nature. Petitioners may file a motion before

the District Court pursuant to Fed. R. Civ. P. 60(b) seeking

to obtain relief from the final judgment in Terry I.

sanctions provided for in the injunction. 697 F. Supp. at

1333, 1352-53. Defendant Terry declined to provide the

court with his personal financial information, id. at 1333 &

n.10, and, in his capacity as Operation Rescue’s custodian

of records, refused to answer discovery requests regarding

Operation Rescue’s finances and assets. Terry I, 886 F.2d

at 1354-57. With one exception, the Petitioners in Terry I]

did not claim an inability to pay at the time the District

Court imposed contempt sanctions. Petition App. at A-105-

A-107, A-111-A-124 (listing contemnors’ arguments).'®

Having failed to raise this issue below, Petitioners should

not be permitted to argue that the sheer size of the fines is

so burdensome as to amount to punitive sanctions. See

Petition at 10 (urging Court to grant certiorari or hold case

pending Bagwell "[i]n view of the excessive monetary

penalties”).

Moreover, the amount of the fines imposed on

Petitioners, while significant, simply bears no comparison

to the $52 million dollar sanctions imposed in Bagwell.

Here, individual Petitioners were fined in amounts ranging

from $25,000 to $100,000, with additional contempt-related

attorney’s fees ranging from approximately $3,000 to

approximately $22,000, with most attorney’s fee awards in

the range from $6,000 to $12,000. Contrary to Petitioners’

arguments, Petition at 10, the size of these sanctions is in

no way comparable to Bagwell, and simply does not

warrant the conclusion that the sanctions are punitive in

nature.

‘© The only Petitioner in Terry IJ to raise a question

regarding inability to pay the fines was Slattery, a portion

of whose fine was subsequently stayed. Petition App. at A-

50-A-51.

In Bagwell, the trial court held the International and

local unions of the United Mine Workers of America

_ (collectively, the "Union") in contempt of its injunction. In

order to induce the Union to comply, the court set a

schedule of prospective civil fines of $100,000 for each

violent violation and $20,000 for each non-vioient violation.

The fines were to double each day, without limitation.

Petitioner’s Brief at 3, Bagwell, No. 92-1625 (citing trial

court order). The court eventually imposed fines totalling

over $64 million and, after reductions, amounting to $52

million.

The trial court in Bagwell apparently imposed sanctions

on the Union for violent acts of individuals who were never

demonstrated to be union members. See Petitioner’s

Petition for Certiorari at 3 & n.1; Petitioner’s Brief at 3-4

& n.1 Bagwell, No. 92-1625. Moreover, after the

underlying labor dispute was settled and both parties to the

litigation asked the court to vacate its contempt sanctions,

the court refused to vacate $52 million in fines, in part

because it found that the Union’s conduct had been aimed at

the state of Virginia at large and had affected “members of

the public . . . who had no connection with any of the

litigants,” causing the state authorities to mobilize massive

resources to maintain order. Government’s Amicus Brief in

Support of Respondent Bagwell, Bagwell, No. 92-1625

(quoting trial court decision). Finally, the size of the fines

in Bagwell might raise a question of whether the sheer

magnitude of the sanctions somehow renders them punitive.

None of these factors are present in Terry IJ; on the

contrary, the District Court took great pains to ensure that

the sanctions were directed at the appropriate persons, were

calculated to achieve a coercive purpose, and were

appropriate in amount. In contrast to Bagwell, the District

Court here only imposed sanctions on Operation Rescue and

non-party Petitioners for each person’s own actions in

organizing and carrying out demonstrations in violation of

the injunction. See Terry |, 697 F. Supp. at 1331. Unlike

the Union in Bagwell, neither Operation Rescue nor non-

party Petitioners was fined for the acts of others, and

particularly not for the acts of unidentified persons not

shown to be members of an organizational defendant.

Rather, the contemnors in Terry II were each held

accountable for their own violations. Petition App. at A-

124-A-134.

The District Court showed an appropriate flexibility in

enforcing the contempt sanctions in order to achieve their

coercive purpose. For example, the court did not initially

impose doubling of penalties, but only did so after its

earlier sanctions were shown to be ineffective as a

deterrent. Terry I, 704 F. Supp. at 1263-64. Moreover,

the District Court agreed to stay enforcement of half of the

sanctions imposed on non-party Petitioner Slattery, as long

as Slattery refrained from future violations of the

injunction. Petition App. at A-50-A-51. By contrast, the

court in Bagwell refused to abate the penalties after they

could serve no further coercive purpose, and even after the

party that initially moved for contempt requested that the

fines be vacated.

In this case, the prospective sanctions were not orily

legitimate when imposed, they continue to be necessary to

enforce future compliance with the court’s mandate.

Operation Rescue clearly has not renounced its policy of

closing down clinics through unlawful blockades, as

demonstrated by the many clinic blockades around the

country initiated and led by Operation Rescue and other

Petitioners since the 1988 and 1989 demonstrations at issue

here. Petitioners cannot and do not argue that changed

circumstances have rendered the permanent injunction

protecting the New York clinics unnecessary. The conduct

that prompted the issuance of the injunction in Terry I

therefore remains an ongoing threat and the prospective

sanctions retain their remedial purpose. Moreover, to

permit Petitioners to evade the consequences of their past

defiance of the District Court’s orders would only serve to

encourage future violations."’

7 — Petitioners’ suggestion that the District Court was

required to conform the prospective contempt sanctions to

New York State law, Petition at 25 n.14, is foreclosed by

their failure to raise it in Terry I, see Commissioner v.

Sunnen, 333 U.S. 591, 597 (1948) (res judicata bars issues

that were raised or could have been raised), and is flatly

contradicted by this Court’s precedents. The Federal courts

have inherent power to compel obedience to their judgments

and orders. Spallone v, United States, 493 U.S. 265, 276

(1990). So long as a federal court employs its inherent

power to control the parties’ “conduct during the litigation,”

Chambers v. Nasco, Inc., 111 S. Ct. 2123, 2138 (1991),

"the district court’s inherent power... [cannot] be made

subservient to any state policy without transgressing the

boundaries” established in Ene R. Co. v. Tompkins, 304

U.S. 64 (1938), and its progeny. Chambers, 111 S. Ct. at

2138. Here, the District Court employed contempt power

for just such a purpose by imposing fines to coerce

Petitioners to comply with the injunction. After Chambers,

Petitioners’ argument, so obviously destructive to the

federal contempt power, borders on frivolous and certainly

provides no basis to grant certiorari. Nor is this a case

where the Court must decide whether “a federal remedy can

be provided even in the absence of a similar state remedy,”

Stern _v. South Chester Tube Co., 390 U.S. 606, 609

(1968) (citing Guffey v. Smith, 237 U.S. 101 (1915)),

because the “remedy” N.O.W. obtained, an award of

Because this case is so factually distinct from Bagwell,

there is no reason for this Court to grant certiorari to

consider this case along with Bagwell or te hold the case

pending a disposition in Bagwell. Accordingly, the petition

should be denied.

attorney’s fees for bringing the contempt motion, is equally

available under New York state law. See, e.g., 3855

B’way Laundromat, Inc, v. 600 W. 16lst St. Corp., 156

A.D.2d 202, 548 N.Y.S.2d 461 (1st Dep’t 1989).

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Dated: January 24, 1994

ide /

PAs ~JOVLA

RUTH JONES

(Counsel of Record)

DEBORAH A. ELLIS

NOW Legal Defense & Education Fund

99 Hudson Street

New York, New York 10013

(212) 925-6636

DAVID D. COLE

Center for Constitutional Rights

666 Broadway - 7th Floor

New York, New York 10012

(212) 614-6464

KIM J. LANDSMAN

JAMES M. BERGIN

EILEEN B. HERSHENOV

Morrison & Foerster

1290 Avenue of the Americas

New York, New York 10104

(212) 468-8000

APPENDICES

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

A-1

APPENDIZ A

Respondents Complaint

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

Index No. 8315/88

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN;

NEW YORK CITY CHAPTER OF THE NATIONAL ORGANI-

ZATION FOR WOMEN; NATIONAL ORGANIZATION FOR

WOMEN; RELIGIOUS COALITION FOR ABORTION RIGHTS-

NEW YORK METROPOLITAN AREA; NEW YORK STATE

NATIONAL ABORTION RIGHTS ACTION LEAGUE, INC.;

PLANNED PARENTHOOD OF NEW YORK CITY, INC.;

EASTERN WOMEN’S CENTER, INC.; PLANNED PARENT-

HOOD CLINIC (BRONX); PLANNED PARENTHOOD CLINIC

(BROOKLYN); PLANNED PARENTHOOD MARGARET

SANGER CLINIC (MANHATTAN); OB-GYN PAVILION; THE

CENTER FOR REPRODUCTIVE AND SEXUAL HEALTH; VIP

MEDICAL ASSOCIATES; BILL BAIRD INSTITUTE (SUF-

FOLK); BILL BAIRD INSTITUTE (NASSAU); Dr. THOMAS

J. MULLIN; BILL BAIRD; REVEREND BEATRICE BLAIR;

RABBI DENNIS MATH; REVEREND DONALD MORLAN;

PRO-CHOICE COALITION, are

Plaintiffs,

—agai”st—

RANDALL TERRY; OPERATION RESCUE; REVEREND JAMES

P. LISANTE; THOMAS HERLIHY; 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 desig-

nate organizations or persons who are members of defen-

dant 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.

—-

A-2

COMPLAINT

The plaintiffs, by their attorneys, Joan P. Gibbs, David

Cole, and Rhonda Copelon, all associated with the Center

for Constitutional Rights with offices at 666 Broadway, 7th

Floor, New York, New York, 10012, and Sarah E. Burns and

Alison Wetherfield of the Now Lega) Defense & Education

Fund, 99 Hudson Street, New York 10013, and 1333 H Street

NW, llth Floor, Washington, D.C., 20005, complain of the

defendants and allege:

PRELIMINARY STATEMENT

1. This is am action for declaratory and injunctive relief

addressed to impending actions directly threatening the heal:h

and safety of hundreds of women seeking abortions or other

family planning services in clinics and other facilities in New

York State during the week of April 30, 1988 to May 7,

1988. Plaintiffs, who include organizations representing the

affected women and a class of clinics and abortion providers

in New York City, Nassau, Suffolk, and Westchester Coun-

ties, seek a limited injunctive order ensuring that defendants’

acuons do not infringe plaintiffs’ constitutional, statutory,

and common law rights to obtain and provide abortions and

o:her family planning and medical] services and to enjoy pro-

tecuon from tortious interference with their exercise of these

rights. Plaintiffs require immediate injunctive relief to fore-

s:al! a meticulously planned series of tortious actions called

““Operation Rescue’ (hereinafter ‘‘the Operation’’) involving

the blockade and harassment of family planning clinics and

abortion providers within the City of New York, Nassau,

Suffolk, and Westchester Counties, by defendant organiza-

uons and individuals, and others acting in concert with them

or on their behalf.

2. Upon information snd belief, defendants iniend to

block access to abortion providers, to obstruct the provision

of abortion and other family planning services, and to intimi-

A-3

date, harass and restrain women attempting to use the ser-

vices of the clinics. Defendants’ actions are scheduled to take

place in the City of New York and Nassau, Suffolk and

Westchester Counties from April 30 to May 7, 1988, but

defendants purposely have not indicated which providers they

will specifically target in order to frustrate efforts to protect

the affected facilities and patients. Defendants’ actions will

greatly increase the health risks faced by women seeking

counseling, abortions, and other services in the targeted facil-

ities, and therefore plaintiffs require immediate injunctive

relief.

PARTIES

Plaintiffs

3. Plaintiff, the New York State Nationa] Organization for

Women (bereinafter ‘‘NY NOW’), is a membership organi-

zation with 10,000 members with offices at 90 State Street,

Albany, New York 12207, and at 15] W. 74th St., NY, New

York 10023. lt sues on behaif of itself and its members, who

include women who wil] need to use abortion and family

planning clinics in the City of New York and surrounding

counties in the period from April 30 to May 7, 1988.

4. Plaintiff, the New York City Chapter of the National

Organization for Women, is 2 membership organization with

offices at 15 West 18th Street, New York, New York 10011.

It sues on behalf of itself and its members, who include

women who wil) need to use abortion and family planning

facilities in the City of New York and surrounding counties

in the period from April 30 to May 7, 1988.

5. Plaintiff, the National Organization for Women, is a

membership organization with 160,000 members with offices

at 140] New York Avenue, N.W., Washington, DC 20005. It

sues on behalf of itself and its members, who include women

who will need to use abortion and family planning clinics in |

the City of New York and surrounding counties in the period |

from April 30 to May 7, 1988.

A-4

6. Plaintiff, the Religious Coalition for Abortion Rights-

New York Metropolitan Area (hereinafter ‘““RCAR’’) is a

coalition of organizations and individuals with offices at 198

Broadway, Room 805, New York, New York 10038. It sues

on behalf of itself and its members, who include women with

various religious beliefs who support the right to choose

abortions and who wil] need to use abortion and family plan-

ning clinics in the City of New York and surrounding coun-

ues in the period from April 30 to May 7, 1988.

7. Plaintiff, New York National Abortion Rights Action

League, Inc. is a membership organization with offices at 2

West 64th Street, New York, New York 10023. It sues on

behalf of itself and its members, who include women who

will need to use abortion and family planning facilities in the

City of New York and surrounding counties in the period

from April 30 to May 7, 1988.

8. Plaintiff, Planned Parenthood of New York City, Inc.,

is a membership organization with offices at 276 Sth Avenue,

Suite 808, New York, New York 10011. It sues on behalf of

itself and its p ~mbers, who include women who wil] need to

use abortion and family planning facilities in the City of New

York and surrounding counties from April 30 to May 7,

1988.

9. Plaintiff, Eastern Women’s Center, Inc., is a health

care facility that provides abortions and other family plan-

ning services, located in New York County. It sues on behalf

of itself, its staff, and its patients.

10. Plaintiff, Planned Parenthood Clinic (Bronx), is a

health care facility that provides abortions and other family

planning services, located in Bronx County. It sues on behalf

of itself, its staff, and its patients.

1]. Plaintiff, Planned Parenthood Clinic (Brooklyn), is a

health care facility that provides abortions and other family

planning services, located in Kings County. Jt sues on behalf

of itself, its staff, and its patients.

A-5

12. Plaintiff, Planned Parenthood Margaret Sanger Clinic

(Manhattan), is a health care facility that provides abortions

and other family planning services, located in New York

County. lt sues on behalf of itself, its staff, and its patients.

13. Plaintiff, Ob-Gyn Pavilion, is a bealth care facility

that provides abortions and other family planning services,

located in Kings County. It sues on behalf of itself, its staff,

and its patients.

14. Plaintiff, The Center for Reproductive and Sexual

Health (CRASH), is 2 heakh care facility that provides abor-

tions and other family planning services, located in New

York County. kh sues on behalf of itself, is staff, and its

patients.

15. Plaintiff, VIP Medical Associates, is a health care

facility that provides abortions and other family planning ser-

vices, located in New York County. It sues on behalf of

itself, its siaff, and its patients.

16. Plaintiff, Bill Baird Institute (Suffolk) is a health care

facility that provides abortions and other family planning ser-

vices, located in Suffolk County. It sues on behalf of itself,

its staff, and its patients.

17. Plaintiff, Bill Baird Institute (Nassau) is a health care

facility that provides abortions and other family planning ser-

vices, located in Nassau County. lt sues on behalf of itself,

its staff, and its patients.

18. Piainziff, Bil Baird, is director of the Bil) Baird Insti-

tutes in Nassau and Suffolk counties. He sues on behalf of

himself, his staff, and his patients.

19. Plaintiff, Thomas J. Mullin, M.D., F.A.C.O.G., is the

medica] director of plaintiff Eastern Women’s Center. He

sues on behalf of himself, his staff and his patients.

20. Plaintiff, the Reverend Beatrice Blair, is a minister

associated with Saint Marks Church In The Bowery, and the

Chair of RCAR. Saint Marks Church In The Bowery is

located at 13] East 10th Street, New York, New York.

A-6

21. Plaintiff, Rabbi Dennis Math, is the Vice-President of

RCAR, and the Rabbi for the Village Tempie, located at 33

East 12th Street, New York, New York.

22. Plaintiff, the Reverend Donald Morian, is the Trea-

surer of RCAR, and is associated with the American Baptist

Churches of Metropolitan New York with offices at 322 8th

Avenue, New York, New York.

23. Plaintiff, the Pro-Choice Coalition, is a coalition of

organizations and individuals dedicated to assuring the con-

stitutional] right of women to choose abortion. It sues on

behalf of itself and its members who are required to devote

their resources to providing protection for women needing to

use the services of planning clinics and abortion providers in

the face of defendants’ planned blockade.

Class Allegations

24. Plaintiff family planning clinics and abortion providers

sue on behalf of a class of al] family planning clinics and

abortion providers and their staff and patients in New York

City, Nassau, Suffolk and Westchester Counties. The class is

sO numerous that joinder of all members is impracticable.

Common questions of law and fact predominate over any

questions affecting individual members of the class. The

claims of the representative clinics and providers are typical

of the claims of the class. The representative clinics and pro-

viders will fairly and adequately protect the interests of the

class. A class action is superior to other available methods

for a fair and efficient adjudication of this controversy.

Defendants

25. Upon information and belief, defendant Randall

Terry, acting in concert with other defendants and others

unknown, is the Executive Director of Project Life and the

National Organizer of ‘‘Operation Rescue,”’ and resides in

Windsor, New York.

26. Upon information and belief, defendant ‘‘Operation

Rescue”’ (hereinafter ‘‘the Operation’’) is a group of organi-

—————————

A-7

zations and individuals, with offices in Binghampton, New

York. Its purpose is to organize and coordinate disruptions

of abortion and family planning facilities, including the

blockades scheduled from April 30 to May 7, 1988 in the

New York City area. The Operation’s literature lists its

address as P.O. Box 1180, Binghampton, New York 13902,

and its telephone number as (607) 723-4012.

27. Upon information and belief, defendant Reverend

James P. Lisante, acting in concert with the other defendants

and others unknown, is one of the organizers of the block-

ades scheduled for April 30 to May 7, 1988 in the New York

City area. He is the Respect Life Coordinator for the Diocese

of Rockvilie Centre, New York.

28. Upon information and belief, defendant Thomas

Herlihy, acting in concert with other defendants and others

unknown, is an officer of the Prolife Nonviolent Action Pro-

ject, and a co-sponsor of the Operation. He resides in the

Bronx, New York.

29. Defendants ‘‘John Doe(s)’’ and ‘‘Jane Doe(s)”’ are fic-

titious mames, the rea] names of said’ defendants being pres-

ently unknown to plaintiffs. These fictitious names are

intended to designate organizations or persons who are mem-

bers 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.

FACTS

30. The defendants, pursuant to a comspiracy that they

have entitled ‘‘Operation Rescue,"” plan to obstruct and close

down facilities at which abortions are performed in the New

York City area from April 30 to May 7, 1988 by trespassing

On, Sitting in, blocking, impeding or obstructing ingress into

or egress from such facilities, intimidating and harassing

patients and visitors, staging disruptive protests, and other-

wise disrupting and interfering with the operations of such

facilities.

A-8

31. The defendants do not acc=pt the decisions of the

United States Supreme Court that the United States Constitu-

tion guarantees and protects a woman’s right to choose abor-

tion and to carry out that decision, and they intend to

interfere with those rights of women attending the targeted

clinics and providers.

32. Upon information and belief, defendants in carrying

out the Operation will be joined by approximately 1000 peo-

ple from various parts of the country.

33. Defendants’ own published plans for the New York

Operation state explicitly that they intend to “‘close down

abortion mills’’ in the New York City area, and specifically

to “‘prevent abortion mill employees or pregnant mothers

from entering’’ the clinics. Defendants’ instructions to their

co-conspirators acknowledge that they are likely to be

arrested, and state that even if the police make arrests and

seek to “‘disperse the crowd, the goa, you must have is to

keep the doorway occupied.’’

34. Defendants have not publicly. stated which clinics in

New York City the Operation wil] target. Upon information

and belief, defendants intend to keep this aspect of the New

York Operation secret in order to frustrate attempts to pro-

tect and guarantee women's access to the clinics and pro-

viders. Plaintiff organizations intend to help protect and

guarantee women's access to the facilities during the course

of the Operation, but are frustrated in their «°iempts to do so

by defendants’ refusal to identify the targeted facilities.

35. Upon information and belief, upon their arrival in the

City of New York, cerain of the defendants wil] be staying

at The Times Square Hotel at 255 West 43rd Street, New

York, New York, and The Days Inn at 440 West 57th Street,

New York, New York. Upon information and belief, others

will be provided housing arranged by defendant Reverend

James P. Lisante.

36. Plans for the New York -Operation were first

announced by defendant Randal] Terry and certain other

A-9

Gefendanis at a Pro-Life Action Network Conference in

Atlanta, Georgia in May 1987. Ever since that time defendant

Terry along with the other defendants have organized for this

Operation, distributed fliers inviting others to participate,

staged rallies ard other organizing events, including ‘‘field

training sessions,’ throughout the country.

37. On November 28, 1987, after an Operation ‘‘field

training session’’ in Philadelphia, defendant Terry and cer-

tain other defendants conducted an all-day blockade of the

Cherry Hill Women’s Center in Cherry Hill, New Jersey.

Upon information and belief, defendant Terry en

this blockade as ‘‘a dry run for the first week in May .

New York City.”’

38. During the ‘‘dry run” in Cherry Hill, the doors to the

Cherry Hill Women's Center were blocked by defendant

Terry and other defendants for approximately nine and a half

bours and over 200 people were arrested on trespass charges,

which are still pending.

39. Participants in the trespass actico at the Cherry Hil

Women’s Center, who came from various parts of the coun-

try, began gathering at the Cherry Hill) Women’s Center at

approximately 6:00 a.m. and remained until 4:30 p.m., dur-

ing which time they completely blocked al] entrance to the

Center, screamed and shouted at the women who had come

to the Center for services, at the Center’s staff, and at pass-

ersby, and damaged the front door and an outside speaker.

40. Thirty-eight women had appointments for abortions at

the Cherry Hill Women’s Clinic on November 28, 1987. As a

result of the defendant Terry’s and certain other defendants’

activities, thirty-three of the women who had appointments

for abortions that day could not be served. The other five

women, who were in the middle of a two-day procedure, had

to be treaied by the Center’s physician at an emergency alter-

native location.

41. On December 2, 1987, the Honorable Paul] A. Lowen-

grub of the Superior Court of New Jersey, Chancery Divi-

A-10

sion, Camden County, entered an interlocutory injunction

against defendants Randal] Terry, the New York Central Pro-

Life Federation and others, enjoining them from, inter alia,

“invading or trespassing upon the property known as 502

North Kings Highway, Cherry Hill, New Jersey, also known

as the Cherry Hill Women’s Center, (2) from gathering,

parading, patrolling or picketing the premises of the plaintiff

Cherry Hill Women's Center in such a manner as to disrupt,

intimidate or harass the executive staff, employees or patients

of the Cherry Hill Women’s Center and (3) from intention-

ally interfering with the flow of traffic into and out of the

Cherry Hill Women’s Center’s premises by blocking or

obstructing ingress into or egress from same . . ."’ Cherry

Hill Women’s Center v. John Does ] to 500, Civ. A. No. C-

03654-87 (Sup. Ct. N.J. Dec. 2, 1987) (interlocutory injunc-

tion).

42. Defendants intend to replicate the Cherry Hill block-

ade each day of the New York Operation, at various clinics

and abortion providers’ offices in New York City and the

surrounding counties. The Operation is intended to have and

will have the effect of denying or disrupting women’s access

to the targeted clinics with the intended result that many

women will have to delay their scheduled services. Any delay

in the provision of health services relating to childbirth and

abortion significantly increases the health risks faced by the

women affected. Therefore, unless defendants’ planned

activities are enjoined, substantial and irreparable damage

will be done to women patients’ health and safety, and to

their nghts to choose an abortion and to carry out that deci-

sion, as well as to the plaintiff clinics’ rights to conduct their

business.

43. Plaintiffs have no adequate remedy at law.

AS AND FOR A FIRST CAUSE OF ACTION

44. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs | through 43 as if fully set’ forth herein.

i tiemeentaan tiie aaamaanuuummccaiiiiusiiuaiill

A-11

45. The actions planned by defendants, which are directed

at women seeking abortions and other family planning ser-

vices at the targeted facilities, jointly and individually, violate

the laws of New York City and New York State, including

New York Civil Rights Law, Section 40(c), and New York

Executive Law Section 296.

AS AND FOR A SECOND CAUSE OF ACTION

46. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs | through 43 as if fully set forth herein.

47. The actions planned by defendants, jointly and individ-

ually, constiute a public nuisance designed to, and having

the effect of, endangering the public security, safety and wel-

fare of the City of New York, and its residents, especially

those women seeking to obtain abortions or other family

planning or medical] services at facilities where abortions are

performed.

Joe

AS AND FOR A THIRD CAUSE OF ACTION

48. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs ] through 43 as if fully set forth herein.

49. The actions planned by defendants, jointly and individ-

ually, constitute a tortious interference with plaintiff facili-

tues’ business.

AS AND FOR A FOURTH CAUSE OF ACTION

50. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs ] through 43 as if fully set forth herein.

51. The actions planned by defendants, jointly and individ-

ually, constitute a toruious intentional trespass on the targeted

clinics and abortion providers.

A-12

AS AND FOR A FIFTH CAUSE OF ACTION

$2. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs ] through 43 as if fully set forth herein.

53. The actions of defendants, jointly and individually,

constitute tortious intentional infliction of emotiona] harm on

patients and employees of the plaintiff clinics and abortion

providers.

AS AND FOR A SIXTH CAUSE OF ACTION

54. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs | through 43 as if fully set forth herein.

55. The actions planned by defendants, jointly and individ-

ually, constitute tortious harassment of patients and employ-

ees of the plaintiff clinics and abortion providers.

AS AND FOR A SEVENTH CAUSE OF ACTION

56. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs 1 through 43 as if fully set forth herein.

57. The actions planned by defendants, jointly and individ-

ually, constitute false imprisonment of patients and employ-

ees of the plaintiff clinics and providers.

AS AND FOR AN EIGHTH CAUSE OF ACTION

58. Plaintiffs repeat and reallege each of the allegations set

forth in paragraphs | through 43 as if fully set forth herein.

$9. Defendants conspired together with each other and

other parties presently unknown for the purpose of denying

women seeking abortions and other family planning services

at targeted facilities the equal protection of the laws and the

equal] privileges and immunities under the law and obstruci-

ing travel, in violation of 42 U.S.C. § 1985(3). Defendants

are and continue to be motivated by an invidiously discrimi-

A-13

natory animus directed at the class of women seeking to exer-

cise their cons-itutiona] and legal right to choose abortions

and other family planning services at the targeted facilities, as

well as at all facilities in the New York City area.

WHEREFORE, plaintiffs demand judgment, together with

costs, fees and disbursements of this action as follows:

1. Declaring that the planned actions of defendants are

violative of plaintiffs’ rights to obtain and provide abor-

tions under the United S:ates Constitution and the stat-

utes and common law of New York; and

2. Granting plaintiffs a preliminary and permanent

injunction restraining and enjoining the defendants, the

officers, directors, agents, and representatives of defen-

dants, and al] other persons whomsoever, known or

unknown, acting in the behalf or in concert with them,

in apy manner or by any means from:

(a) trespassing on, sitting in, blocking, impeding or

obstructing ingress into or egress from any facility

at which abortions are performed in the City of

New York, Nassau, Suffolk, or Westchester Coun-

ties, including demonstrating within 15 feet of any

persons seeking access to or leaving those facilities,

from Apri] 30, 1988 to May 7, 1988, or the conclu-

sion of 2 planned blockade called “‘Operation Res-

cue,”” whichever is later;

(>) physically abusing or tortiously harassing per-

scons entering or leaving, working at or using any

services at any facility at which abortions are per-

formed in the City of New York, Nassau, Suffolk,

or Westchester Counties, from April 30, 1988 to

May 7, 1988, or the conclusion of blockade activi-

ues, whichever is later;

turbs, injures, or endangers the health or safety of

any patient or employee of the clinics;

A-14

(d) attempting or directing others to take any of

the actions described in paragraphs (a), (b), and (c)

above; and

(3) providing that nothing in the Court’s Orde:

should be construed to limit defendants’ exercise of their

legitimate First Amendment rights; and

(4) directing the defendant organizations and their

officers, and the defendant individuals and those work-

ing in concert with them, to instruct al] members of the

Organizations and conspiracy believed to be planning to

participate in the activities enumerated above not to

engage OF participate in any such activities enjoined in

paragraphs (a) through (d) above; and

(S) gramting such other and further relief as the Coun

deems just and proper.

Respectfully submitted,

/s/ JOAN P. GIBBS

Joan P. Gibbs

Rhonda Copelon

David Cole*

Center for Constitutional Rights

666 Broadway, 7th Floor

New York, New York 10012

212) 614-6464

/s/ ALISON WETHERFIELD

Alison Wetherfield

NOW Legal Defense & Education Fund

99 Hudson Street

New York, New York 10013

(212) 925-6635

A-15

Sarah E. Burns

NOW Legal Defense & Education Fund

1333 “HH”? St. NW

Washington, DC 20005

(202) 682-0940

Attorneys for Piaintiffs

Dated: New York, New York

April 25, 1988

* Admitted to practice in Pennsylvania.

A-16

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

NEW YORK STATE NATIONAL ORGANIZATION FOR

WOMEN; NEW YORK CITY CHAPTER OF THE NATIONAL

ORGANIZATION FOR WOMEN, NATIONAL ORGANIZATION

FOR WOMEN; RELIGIOUS COALITION FOR ABORTION

RIGHTS-NEW YORK METROPOLITAN AREA; NEW YORK

STATE NATIONAL ABORTION RIGHTS ACTION LEAGUE,

INC.; PLANNED PARENTHOOD OF NEW YORK CITY, INC.;

EASTERN WOMEN’S CENTER, INC.; PLANNED

PARENTHOOD CLINIC (BRONX); PLANNED PARENTHOOD

CLINIC (BROOKLYN); PLANNED PARENTHOOD MARGARET

SANGER CLINIC (MANHATTAN); OB-GYN PAVILION; THE

CENTER FOR REPRODUCTIVE AND SEXUAL HEALTH; VIP

MEDICAL ASSOCIATES; BILL BAIRD

INSTITUTE (NASSAU); DR. THOMAS J. MULLIN;

BILL BAIRD; REVEREND BEATRICE BLAIR; RABBI DENNIS

MATH; REVERENT DONALD MORLAN; PRO-CHOICE

COALITION

Plaintiffs, Index No.

88 Civ. 3071 (RJW)

RANDALL TERRY, individually and as president of OPERATION

RESCUE, an uncorporated association, REVEREND JAMES P.

LISANTE; THOMAS HERLIHY; JOHN DOE(S) AND JANE

DOE(S), the iast 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.

A-17

The plaintiffs, by their attorneys, Joan P. Gibbs, David

Cole, and Rhonda Copelon, all associated with the Center

for [2] Constitutional Rights with offices at 666 Broadway,

7th Floor, New York, New York 10012, and Sarah E.

Burns and Alison Wetherfield of the NOW Legal Defense

& Education Fund, 99 Hudson Street, New York 10013,

and 1333 H Street NW, 11th Floor, Washington, D.C.,

20005, complain of the defendants and allege:

PRELIMINARY STATEMENT

1. This is an action for declaratory and injurictive

relief addressed to impending actions directly threatening

the health and safety of hundreds of women seeking

abortions or other family planning services in clinics and

other facilities in New York State during the week of April

30, 1988 to May 7, 1988. Plaintiffs, who include

organizations representing the affected women and a class

of clinics and abortion providers in New York City,

Nassau, Suffolk, and Westchester Counties, seek a limited

injunctive order ensuring that defendants’ actions do not

infringe plaintiffs’ constitutional, statutory, and common

law rights to obtain and provide abortions and other family

planning and medical services and to enjoy protection from

tortious interference with their exercise of these rights.

Plaintiffs require immediate injunctive relief to forestall a

meticulously planned series of tortious actions called

"Operation Rescue” (hereinafter “the Operation”) involving

the blockade and harassment of family pianning clinics and

abortion providers within the City of New York, Nassau,

Suffolk, and Westchester Counties, by defendant

organizations and individuals, and others acting in concert

with them or on their behalf. [3]

2. Upon information and belief, defendants intenc to

block access to abortion providers, to obstruct the provision

A-18

of abortion and other family planning services, and to

intimidate, harass and restrain women attempting to use the

services of the clinics. Defendants’ actions are scheduled

to take place in the City of New York and Nassau, Suffolk

and Westchester Counties from April 30 to May 7, 1988,

but defendants purposely have not indicated which

providers they will specifically target in order to frustrate

efforts to protect the affected facilities and patients.

Defendants’ actions will greatly increase the health risks

faced by women seeking counseling, abortions, and other

services in the targeted facilities, and therefore plaintiffs

require immediate injunctive relief.

PARTIES

Plaintiffs

3. Plaintiff, the New York State National

Organization for Women (hereinafter "NY NOW"), is a

membership organization with 10,000 members with offices

at 90 State Street, Albany, New York 12207, and at 151

W. 74th St., NY, New York 10023. It sues on behalf of

itself and its members, who include women who will need

to use abortion and family planning clinics in the City of

New York and surrounding counties in the period from

April 30 to May 7, 1988.

4. Plaintiff, the New York City Chapter of the

National Organization for Women, is a membership

organization with offices at [4] 15 West 18th Street, New

York, New York 10011. It sues on behalf of itself and its

members, who include women who will need to use

abortion and family planning facilities in the City of New

York and surrounding counties in the period from April 30

to May 7, 1988.

A-19

5. Plaintiff, the National Organization for Women, is

a membership organization with 160,000 members with

offices at 1401 New York Avenue, N.W., Washington, DC

20005. It sues on behalf of itself and its members, who

include women who will need to use abortion and family

planning clinics in the City of New York and surrounding

counties in the period from April 30 to May 7, 1988.

6. Plaintiff, the Religious Coalition for Abortion

Rights - New York Metropolitan Area (hereinafter

"RCAR") is a coalition of organizations and individuals

with offices at 198 Broadway, Room 805, New York, New

York 10038. It sues on behalf of itself and its members,

who include women with various religious beliefs who

support the right to choose abortions and who will need to

use abortion and family planning clinics in the City of New

York and surrounding counties in the period from April 30

to May 7, 1988.

7. Plaintiff, New York State National Abortion Rights

Action League, Inc. is a membership organization with

offices at 2 West 64th Street, New York, New York

10023. It sues on behalf of itself and its members, who

include women who will need to use abortion and family

planning facilities in the City of New York and surrounding

counties in the period from April 30, to May 7, 1988.

8. Plaintiff, Planned Parenthood of New York City,

Inc., is a [5] membership organization with offices at 276

5th Avenue, Suite 808, New York, New York 10011. It

sues on behalf of itself and its members, who include

women who will need to use abortion and family planning

facilities in the City of New York and surrounding counties

from April 30 to May 7, 1988.

9. Plaintiff, Eastern Women’s Center, Inc., is a

A-20

health care facility that provides abortions and other family

planning services, located in New York County. It sues on

behalf of itself, its staff, an@ its patients.

10. Plaintiff, Planned Parenthood Clinic (Bronx), is a

health care facility that provides abortions and other family

planning services, located in Bronx County. It sues on

behalf of itself, its staff, and its patients.

11. Plaintiff, Planned Parenthood Clinic (Brooklyn), is

a health care facility that provides abortions and other

family planning services, located in Kings County. It sues

on behalf of itself, its staff, and its patients.

12. Plaintiff, Planned Parenthood Margaret Sanger

Clinic (Manhattan), is a health care facility that provides

abortions and other family planning services, located in

New York County. It sues on behalf of itself, its staff, and

its patients.

13. Plaintiff, Ob-Gyn Pavilion, is a health care facility

that provides abortions and other family planning services,

located in Kings County. It sues on behalf of itself, its

staff, and its patients.

14. Plaintiff, The Center for Reproductive and Sexual

Health [6] (CRASH), is a health care facility that provides

abortions and other family planning services, located in

New York County. It sues on behalf of itself, its staff, and

its patients.

15. Plaintiff, VIP Medical Associates, is a health care

facility that provides abortions and other family planning

services, located in New York County. It sues on behalf of

itself, its staff, and its patients.

A-21

16. Plaintiff, Bill Baird Institute (Suffolk) is a health

care facility that provides abortions and other family

planning services, located in Suffolk County. It sues on

behalf of itself, its staff, and its patients.

17. Plaintiff, Bill Baird Institute (Nassau) is a health

care facility that provides abortions and other family

planning services, located in Nassau County. It sues on

behalf of itself, its staff, and its patients.

18. Plaintiff, Bill Baird, is director of the Bill Baird

Institutes in Nassau and Suffolk counties. He sues on

behalf of himself, his staff, and his patients.

19. Plaintiff, Thomas J. Mullin, M.D., F.A.C.O.G., is

the medical director of plaintiff Eastern Women’s Center.

He sues on behalf of himself, his staff and his patients.

20. Plaintiff, the Reverend Beatrice Blair, is a minister

associated with Saint Marks Church In The Bowery, and

the Chair of RCAR. Saint Marks Church In The Bowery is

located at 131 East 10th Street, New York, New York.

21. Plaintiff, Rabbi Dennis Math, is the Vice-President

of [7] RCAR, and the Rabbi for the Village Temple,

located at 33 East 12th Street, New York, New York.

22. Plaintiff, the Reverend Donald Morlan, is the

Treasurer of RCAR, and is associated with the American

Baptist Churches of Metropolitan New York with offices at

322 8th Avenue, New York, New York.

23. Plaintiff, the Pro-Choice Coalition, is a coalition of

organizations and individuals dedicated to assuring the

constitutional right of women to choose abortion. It sues

on behalf of itself and its members who are required to

A-22

devote their resources to providing protection for women

needing to use the services of planning clinics and abortion

providers in the face of defendants’ planned blockade.

Class Allegations

24. Plaintiff family planning clinics and abortion

providers sue on behalf of a class of all family planning

clinics and abortion providers and their staff and patients in

New York City, Nassau, Suffolk and Westchester Counties.

The class is so numerous that joinder of all members is

impracticable. Common questions of law and fact

predominate over any questions affecting individual

members of the class. The claims of the representative

clinics and providers are typical of the claims of the class.

The representative clinics and providers will fairly and

adequately protect the interests of the class. A class action

is superior to other available methods for a fair and

efficient adjudication of this controversy.

[8] Defendants

25. Upon information and belief, defendant Randall

Terry, acting in concert with other defendants and others

unknown, is the Executive Director of Project Life and the

National Organizer of “Operation Rescue," and resides in

Windsor, New York. Defendant Terry is sued in his

individual capacity and in his representative capacity as

president of "Operation Rescue", an unincorporated

association.

26. Upon information and belief, defendant “Operation

Rescue” (hereinafter "the Operation") is an unincorporated

association, with offices in Binghamton, New York, whose

members’ purpose is to organize and coordinate disruptions

of abortion and family planning facilities, including the

A-23

blockades scheduled from April 30 to May 7, 1988 in the

New York City area. The Operation’s literature lists its

address as P.O. Box 1180, Binghamton, New York 13902,

and its telephone number as (607) 723-4012.

27. Upon information and belief, defendant Reverend

James P. Lisante, acting in concert with the other

defendants and others unknown, is one of the organizers of

the blockages scheduled for April 30 to May 7, 1988 in the

New York City area. He is the Respect Life Coordinator

for the Diocese of Rockville Center, New York.

28. Upon information and belief, defendant Thomas

Herlihy, acting in concert with other defendants and others

unknown, is an office of the Prolife Nonviolent Action

Project, and a co-sponsor of the Operation. He resides in

the Bronx, New York.

29. Defendants "John Doe(s)" and “Jane Doe(s)" are

fictitious names, the real names of said defendants being

presently unknown to plaintiffs. These fictitious names are

[9] 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.

FACTS

30. The defendants, pursuant to a conspiracy that they

have entitled “operation Rescue," plan to obstruct and close

down facilities at which abortions are performed in the New

York City area from April 30 to May 7, 1988 by

trespassing on, sitting in, blocking, impeding or obstructing

ingress into or egress from such facilities, intimidating and

harassing patients and visitors, staging disruptive protests,

and otherwise disrupting and interfering with the operations

A-24

of such facilities.

31. The defendants do not accept the decisions of the

United States Supreme Court that the United States

Constitution guarantees and protects a woman’s right to

choose abortion and to carry out that decision, and they

intend to interfere with those rights of women attending the

targeted clinics and providers.

32. Upon information and belief, defendants in

carrying out the Operation will be joined by approximately

1000 people from various parts of the country.

33. Defendants’ own published plans for the New York

Operation state explicitly that they intend to "close down

abortion mills" in the New York City area, and specifically

to “prevent abortion mill employees or pregnant mothers

from entering” the clinics. Defendants’ instructions to their

co- [10] conspirators acknowledge that they are likely to be

arrested, and state that even if the police make arrests and

seek to "disperse the crowd, the goal you must have is to

keep the doorway occupied."

34. Defendants have not publicly stated which clinics

in New York City the Operation will target. Upon

information and belief, defendants intend to keep this aspect

of the New York Operation secret in order to frustrate

attempts to protect and guarantee women’s access to the

clinics and providers. Plaintiff organizations intend to help

protect and guarantee women’s access to the facilities

during the course of the Operation, but are frustrated in

their attempts to do so by defendants’ refusal to identify the

targeted facilities.

35. Upon information and belief, upon their arrival in

the City of New York, certain of the defendants will be

A-25

staying at The Times Square Hotel at 255 West 43rd Street,

New York, New York, and The Days Inn at 440 West 57th

Street, New York, New York. Upon information and

belief, others will be provided housing arranged by

defendant Reverend James P. Lisante.

36. Plans for the New York Operation were first

announced by defendant Randall Terry and certain other

defendants at a Pro-Life Action Network Conference in

Atlanta, Georgia in May 1987. Ever since that time

defendant Terry along with the other defendants have

organized for this Operation, distributed fliers inviting

others to participate, staged rallies and other organizing

events, including "field training sessions," throughout [11]

the country.

37. On November 28, 1987, after an Operation "field

training session" in Philadelphia, defendant Terry and

certain other defendants conducted an all-day blockade of

the Cherry Hill Women’s Center in Cherry Hill, New

Jersey. Upon information and belief, defendant Terry

characterized this blockade as "a dry run for the first week

in May. . . in New York City."

38. During the “dry run" in Cherry Hill, the doors to

the Cherry Hill Women’s Center were blocked by defendant

Terry and other defendants for approximately nine and a

half hours and over 200 people were arrested on trespass

charges, which are still pending.

39. Participants in the trespass action at the Cherry

Hill Women’s Center, who came from various parts of the

country, began gathering at the Cherry Hill Women’s

Center at approximately 6:00 a.m. and remained until 4:30

p.m., during which time they completely blocked all

entrance to the Center, screamed and shouted at the women

A-26

who had come to the Center for services, at the Center’s

staff, and at passersby, and damaged the front door and an

outside speaker.

40. Thirty-eight women had appointments for abortions

at the Cherry Hill Women’s Clinic on November 28, 1987.

As a result of the defendant Terry’s and certain other

defendants’ activities, thirty-three of the women who had

appointments for abortions that day could not be served.

The other five women, who were in the middle of a two-

day procedure, had to be treated by the Center’s physician

[12] at an emergency alternative location.

41. On December 2, 1987, the Honorable Paul A.

Lowengrub of the Superior Court of New Jersey, Chancery

Division, Camden County, entered an_ interlocutory

injunction against defendants Randall Terry, the New York

Center Pro-Life Federation and others, enjoining them

from, inter alia, “invading or trespassing upon the property

known as 502 North Kings Highway, Cherry Hill, New

Jersey, also known as the Cherry Hill Women’s Center, (2)

from gathering, parading, patrolling or picketing the

premises of the plaintiff Cherry Hill Women’s Center in

such a manner as to disrupt, intimidate or harass the

executive staff, employees or patients of the Cherry Hill

Women’s Center and (3) from intentionally interfering with

the flow of traffic into and out of the Cherry Hill Women’s

Center’s premises by blocking or obstructing ingress into or

egress from same.. Vv

Does _1 to 500, Civ. A. No. C-03654-87 (Sup. Ct. N.J.

Dec. 2, 1987)(interlocutory injunction).

42. Defendants intend to replicate the Cherry Hill

blockade each day of the New York Operation, at various

clinics and abortion providers’ offices in New York City

and the surrounding counties. The Operation is intended to

A-27

have and will have the effect of denying or disrupting

women’s access to the targeted clinics, with the intended

result that many women will have to delay their scheduled

services. Any delay in the provision of health services

relating to childbirth and abortion significantly increases the

health risks faced by the women affected. [13] Therefore,

unless defendants’ planned activities are -enjoined,

substantial and irreparable damage will be done to women

patients’ health and safety, and to their rights to choose an

abortion and to carry out that decision, as well as to the

plaintiff clinics’ rights to conduct their business.

43. Plaintiffs have no adequate remedy at law.

FIR A

44. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs 1 through 43 as if fully set forth

herein.

45. The actions planned by defendants, which are

directed at women seeking abortions and other family

planning services at the targeted facilities, jointly and

individually, violate the laws of New York City and New

York State, including New York Civil Rights Law, Section

40(c), and New York Executive Law Section 296.

AS AND FOR A SECOND CAUSE OF ACTION

46. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs | through 43 as if fully set forth

herein.

47. The actions planned by defendants, jointly and

individually, constitute a public nuisance designed to, and

having the effect of, endangering the public security, safety

A-28

and welfare of the City of New York, and its residents,

especially those women seeking to obtain abortions or other

family planning or medical services at facilities where

abortions are performed.

AS AND FOR A THIRD CAUSE OF ACTION

[14] 48. Plaintiffs repeat and reallege each of the

allegations set forth in paragraphs 1 through 43 as if fully

set forth herein.

49. The actions planned by defendants, jointly and

individually, constitute a tortious interference with plaintiff

facilities’ business.

AS AND FOR A FOURTH CAUSE OF ACTION

50. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs 1 through 43 as if fully set forth

herein.

51. The actions planned by defendants, jointly and

individually, constitute a tortious intentional trespass on the

targeted clinics and abortion providers.

AS AND FOR A FIFTH CAUSE OF ACTION

52. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs 1 through 43 as if fully set forth

herein.

53. The actions of defendants, jointly and individually,

constitute tortious intentional infliction of emotional harm

on patients and employees of the plaintiff clinics and

abortion providers.

AS AND FOR A SIXTH CAUSE OF ACTION

54. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs 1 through 43 as if fully set forth

herein.

55. The actions planned by defendants, jointly and

individually, constitute tortious harassment of patients and

employees of the plaintiff clinics and abortion providers.

AS AND FOR A SEVENTH CAUSE OF ACTION

[15] 56. Plaintiffs repeat and reallege each of the

allegations set forth in paragraphs 1 through 43 as if fully

set forth herein.

57. The actions planned by defendants, jointly and

individually, constitute false imprisonment of patients and

employees of the plaintiff clinics and providers.

AS AND FOR AN EIGHTH CAUSE OF ACTION

58. Plaintiffs repeat and reallege each of the allegations

set forth in paragraphs | through 43 as if fully set forth

herein.

59. Defendants conspired together with each other and

other parties presently unknown for the purpose of denying

women seeking abortions and other family planning services

at targeted facilities the equal protection of the laws and the

equal privileges and immunities under the law and

obstructing travel, in violation of 42 U.S.C. § 1985(3).

Defendants are and continue to be motivated by an

invidiously discriminatory animus directed at the class of

women seeking to exercise their constitutional and legal

right to choose abortions and other family planning services

cca a ii

at the targeted facilities, as well as at all facilities in the

New York area.

WHEREFORE, plaintiffs demand judgment, together

with costs, fees and disbursements of this actions as

follows:

1. Declaring that the planned actions of

defendants are violative of plaintiffs’ rights to

obtain and provide abortions under the United

States Constitution and the statutes and common

law of New York; and

{16} 2. Granting plaintiffs a preliminary and

permanent injunction restraining and enjoining the

defendants, the officers, directors, agents, and

representatives of defendants, and all other persons

whomsoever, known or unknown, acting in their

behalf or in concert with them, in any manner or

by any means from:

a) trespassing on, sitting in, blocking,

impeding or obstructing ingress into or egress

from any facility at which abortions are

performed in the City of New York, Nassau,

Suffolk, or Westchester Counties, including

demonstrating within 15 feet of any persons

seeking access to or leaving those facilities,

from April 30, 1988 to May 7, 1988, or the

conclusion of a planned blockade called

“Operation Rescue,” whichever is later;

(b) physically abusing or tortiously harassing

persons entering or leaving, working at or

using any services at any facility at which

abortions are performed in the City of New

York, Nassau, Suffolk, or Westchester

A-31

Counties, from April 30, 1988 to May 7,

1988, or the conclusion of blockade activities,

whichever is later;

c) making any excessively loud sound which

disturbs, injures, or endangers the health or

safety of any patient or employee of the

clinics;

d) attempting or directing others to take any

of [17] the actions described in paragraphs (a),

(b), and (c) above; and

3. providing that nothing in the Court’s Order should

be construed to limit defendant’s exercise of their legislative

First Amendment rights, and

4. Directing the defendant organizations and their

officers, and the defendant individuals and those working in

concert with them, to instruct all members of the

organizations and conspiracy believed to be planning to

participate in the activities enjoined in paragraphs (a)

through (d) above; and

5. Granting such other and further relief as the Court

deems just and proper.

Respectfully submitted,

Joan P. Gibbs

Rhonda Copelon

David Cole*

Center for Constitutional Rights

666 Broadway - 7th Floor

New York, New York 10012

(212) 614-6464

A-32

Alison Wetherfield

NOW Legal Defense & Education Fund

99 Hudson Street

New York, New York 10013

(212) 925-6635

Sarah E. Burns**

NOW Legal Defense and Education Fund

1333 "H" Street NW

Washington, DC 20005

(202) 682-0940

Attorneys for Plaintiffs

Dated: New York, New York

August 15, 1988

* Admitted to practice in Pennsylvania

** Admitted to practice in Washington, D.C.

A-33

APPENDIX C

No. 89-1408

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1989

RANDALL TERRY, OPERATION RESCUE, REV. JAMES P. LISANTE,

THOMAS HERLIHY, JOHN DOES AND JANE DOES,

Petitioners,

—_—V oo

NEW YORK STATE NATIONAL ORGANIZATION FOR WOMEN, e7 ai.,

Respondents,

CITY OF NEW YORK,

Respondeni-Irtervenor,

UNITED STATES OF AMERICA,

Respondent-Judgment Creditor.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-—

—

JOSEPH P. SECOLA®

MICHAEL P. TIERNEY GEORGE J. MERCER

80 Pine Street LAWRENCE S. WALTERS, JR.

New York, New York 10005 The Rutherford Institute of

(212) 701-3524 Connecticut

A. LAWRENCE WASHBURN, JR. P.O. Box 3196

10 Brennan Place Milford, Connecticut 06460

Deer Park, New York 11729 (203) 355-0923

(516) 243-6514 Attorneys for Petitioners

"Counsel of Record for

Petitioners

Il.

Ill.

VI.

A-34

QUESTIONS PRESENTED

Whether the 42 U.S.C. 1985(3) requirement of class-

based animus is satisfied by a class of women in gen-

eral or a subclass of women abortion-seekers?

Whether brief non-violent sit-in demonstrations of a

few hours occurring on public sidewalks in front of

facilities in which abortions are performed violate the

interstate Right to Travel of the plaintiffs or the pur-

ported individual women they were allowed to repre-

sent?

Whether the contempt fines of $50,000 (originally pay-

able to plaintiff Nationa] Organization for Women,

modified by the circuit court to be payable to the

United States) and $19,141 (payable to the City of New

York for police overtime), imposed on motion papers

without a hearing, against defendants Randall Terry

and Operation Rescue for engaging in two days of pub-

lic demonstrations at two separate locations, were crim-

ina] in nature requiring due process protections for the

defendants?

Whether there existed genuine disputes of substantial

materia] facts so as to preclude the district court from

granting summary judgment under the doctrine of

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)?

Whether public demonstrations containing elements of

civil disobedience or individual acts of civil disobedi-

ence for political purposes may be treated in all

respects as non-expressive conduct, deserving no First

Amendment safeguards whatsoever?

Whether the plaintiffs and plaintiff-intervenor lack

Article II] standing due to lack of a cognizable harm to

any plaintiff?

A-35

| VII. Whether the imposition of discovery sanctions against

defendants and their pro bono counsel was an abuse of

discretion in view of the constitutional privileges

asserted?

en ae ee

A-36

PARTIES

In addition to the Petitioners and Respondents listed in the

caption, the following are also Respondents in this action:

New York City Chapter of the National Organization for

Women; National Organization for Women; Religious Coali-

tion for Abortion Rights-New York Metropolitan Area; New

York State National Abortion Rights Action League, Inc.;

Planned Parenthood of New York City, Inc.; Eastern Wom-

en's Center, Inc.; Planned Parenthood Clinic (Bronx);

Planned Parenthood Clinic (Brooklyn); Planned Parenthood

Margaret Sanger Clinic (Manhattan); Ob-Gyn Pavilion; The

Center for Reproductive and Sexual] Health; VIP Medical

Associates; Bill Baird Institute (Suffolk); Bill Baird Institute

(Nassau); Dr. Thomas J. Mullin; Bill Baird; Reverend Bea-

trice Blair; Rabbi Dennis Math; Reverend Donald Morlan;

Pro Choice Coalition.

The United States of America was added as a party as a

result of the court of appeals judgment below. Petitioner

OPERATION RESCUE is not a corporation under Rule 28.1 of

the Rules of this Court.

Statutory Provisions

Statement of the Case

A-37

TABLE OF CONTENTS

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eevee eeeeeeeevn eee eaeaeeeeeeeneeeaeene

REASONS FOR GRANTING THE WRIT ..........

Il.

Ill.

¥in

VII.

Conclusion

The Second Circuit Erroneously Held That

Subgroupings of Gender-Based Animus Come

Within the Purview of § 1985(3) ............

The Second Circuit Erroneously Held That

Brief Non-Violent Sit-In Demonstrations on

Public Sidewalks Implicate the Right to Travel

The Second Circuit Erroneously Held That

The Contempt Fines Imposed by the District

Court Were Civil In Nature ................

. The Petitioners Have Been Denied A Fair Trial

CN Cometemtiemes BOGGS occ ccccccccccccceces

Petitioners’ First Amendment Rights Have

Been Violated By Court Orders That Imposed

Unlawful Prior Restraints of Protected Speech

The Second Circuit Erred In Conferring

Article II] Standing on Respondents and

RespOMGent-IBtET VERSE . oon cc cccccccccccccess

The Second Circuit’s Award of Costs Under

Rule 37(a)(4) Jointly and Severally Against

Defendants and Their Counsel Was Arbitrary

and an Abuse of Discretion

e*eeeeeeveeveeeeeeeeeee

ee ee ewe er een eee eeeew eee eaeeeeeeeeeneaeeeeeeeee

PAGE

A-38

PAGE

Colombrito v. Kelly, 764 F.2d 122 (2d Cir. 1985).... 6n

Commonwealth of Pa. ex. rel. Rafferty v. Philadelphia

Psychiatric Cir., 356 F.Supp. 500 (E.D. Pa. 1973). 27n

Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987)..... 7p

Conroy v. Conroy, 575 F.2d 175 (8th Cir. 1978)..... 7n

Cousins v. Terry, 721 F.Supp. 426 (N.D.N.Y. 1989).. 6n

Cox v. Louisiana, 379 U.S. 536 (1965)..........+4-- 20

Crawford v. American Federation of Government

Employees, 576 F.Supp. 812 (D.D.C. 1983)........ 29n

Crozer-Chester Medical Ctr. v. Moran, 560 A.2d 133

i Se is sda chided es éckwbnenanenkin orskseddes ce l6n

Daigle v. Gulf Utilities Co., Local 2286, 794 F.2d 974

Ce es Ss Shh ens cstice A cate es scowinsss 7p

Damato v. Wisconsin Gas Co., 760 F.2d 1474 (7th Cir.

Pa Sac ban cbenns VAs lob cer a n¥ Seeds bebe Vecer ses 7n

Doe v. Bolton, 410 U.S. 179 (1973). 2........cceeees 1]

Dole Fresh Fruit Co. v. United Banana Co., F.2d 106

Ge ls Beda ccdsncardeescdbidksdtddet 22, 23n, 27

Donohue v. Windsor Locks Bd. of Fire Com’rs, 834

Pa ee en SOE Webbe swescadvbdecuecad ca 17n, 18n

Douglas v. First National Realty Corp., 543 F.2d 894

Cs Se EE Ph bncedhe dees ee ndedesuscouscoes 16n

Dunn v. Blumstein, 405 U.S. 330 (1974) ............ l2n

Edwards v. South Carolina, 372 U.S. 229 (1963)..... 20

Eitel v. Holland, 787 F.2d 995 (Sth Cir. 1986)....... 7n

Erznoznik v. Jacksonville, 422 U.S. 205 (1975)....... 22n

Falstaff v. Miller, 702 F.2d 770 (9th Cir. 1983)...... 16n

a oy

RYH Se yo ay SARTRE EER IR ITE MEN

A-39

Finley v. United States, _.. U.S. —__, 109 S.Ct.

Pt reidtcnehenedeensesdes $660000006 KO heen 27

Garza v. Marine Transport Lines, Inc., 871 F.2d 23 (2d

a ae iL eid peepee 18n

Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) 8n

Gompers v. Buck’s Stove & Range, 221 U.S. 418, 31

es SN EN cin dndes daar eaubdae Cudsccecenevics 15

Griffin v. Breckenridge, 403 U.S. 88 (1971)....5n, 9n, 10n,

11, 12n

Grimes v. Smith, 776 F.2d 1359 (7th Cir. 1985)...... 7n

Baas V. Gis Be? Us GS Gee oc ccccccvrecccces 20

Harrison v. KVAT Food Management, Inc., 766 F.2d

ey ee ee ME Gabcdhsebwaeeeecbescdceedese 6n, 9

Hess v. New Jersey Transit Rail Operations, Inc., 946

ee cc cee epecawbacedeveceuces 16n

Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624

SE dich aubewads Gb4e00-d) Pes ete deddere seve 14, 14n, 15

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) ..... 8n

Hulvat v. Royal Indemnity Co., 277 F.Supp. 769 (E.D.

Humphreys Exterminating Co. v. Poulter, 62 F.R.D.

SE ke od inet cdekcevcsncdateseceeuce 29n

In re Grand Jury Witness, 835 F.2d 437 (2d Cir. 1987),

cert. denied sub nom. Arambulo v. United States,

485 U.S. 1039 (1988)

A-40

PAGE

In re Stewart, $7) F.2d 958 (Sth Cir. 1978).......... 16n

Judge v. City of Buffalo, $24 F.2d 1321 (2d Cir. 1975) 18n

Keating v. Carey, 706 F.2d 377 (2d Cir. 1983)....... 6n

Lopez v. Arrowhead Ranches, $23 F.2d 924 (9th Cir.

WT occ ccccecenetencecdcchessebsteduedesates eo lin

Los Angeles v. Lyons, 461 U.S. 95 (1983)........... 27

Matsushita Electric Industrial Co. v. Zenith Radio

Cole GTS Gels FOE GHD coccccccescceseeeoese< 18

McLean v. Int’l Harvester Co., 817 F.2d 1214 (Sth Cir.

CUPPED cvcccccccccecseacvesventennveussbeeotuness l2n

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

GREED cccccvecesseceusseeqeanctsoeceseeusededeees 22n

Michaelson v. United States, 266 U.S. 42 (1924) ..... 15n

Mississippi Women’s Medical Clinic v. McMillan, 866

if & 2 fe eee ere 7n, lin

Motown Record Corp. v. Mary Jane Girls, Inc., 118

Foe SP Gtaltos SPS t ches ebsedsedvtotedeces 17

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ......... oS

National Abortion Federation v. Operation Rescue, 72)

F.Supp. 1168 (C.D. Cal. 1989)......... 8n, 9-10, 9n, 10n

National Abortion Federation v. Operation Rescue,

No. CV 89-1181, slip op. (C.D. Cal. January 31,

A-41

PAGE

Portland Feminist Women’s Health Center v. Advo-

cates for Life, Inc., 712 F.Supp. 165 (D.Ore. 1989) 8n

Prince Georges County, Md. v. Levi, 79 F.R.D. 1 (D.

Md. 1977)

Rayborn v. Mississippi State Bd. of Dental Examiners,

FO Fee Be en Fe Se bcc 0c ccnnesesascenes 7n

Reichard v. Life Ins. Co., 591 F.2d 499 (9th Cir. 1979) &n

Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d

647 (9th Cir. 1982)

pee seeeeseagescesees ceooceeses 29n

Rizzo v. Goode, 423 U.S. 362 (1976) ............... 27

Robinson v. Cantebury Village, 849 F.2d 424 (3d Cir.

Ditienedinustanedwasedienedes covnseteseoecses 6n

Roe v. Abortion Abolition Society, 81] F.2d 931 (Sth

Gal chs ctl chebeccCoeeseeecacedestecacéées 7n, 10n

Roe v. Operation Rescue, No. 88-5157, slip. op. (E.D.

alg SEE Bs Dc ddvencesntnccostssocdecs 27

Roe v. Operation Rescue, 710 F.Supp. 577 (E.D. Pa.

SPP et TT ee ee ey TT TTT PTT TTP TET TTTre 6n

FOOD Te. Wc. GEO Ge BED Clerc ccc ccccccsvecess 3

Schultz v. Sundberg, 759 F.2d 714 (9th Cir. 1985)... 8n

Shapiro v. Thompson, 394 U.S. 618 (1969).......... l2n

Shillitani v. United States, 384 U.S. 364 (1966) ...... 15

Spallone v. United States, _.. _~—U.S. —, 58

Siete A P< chtehacehteecesdgeeeseecen 24

Spence v. Washington, 418 U.S. 405 (1974).......... 26

Spevack v. Klein, 385 U.S. 511 (1967)

Stillman v. Edmund Scientific Co., 522 F.2d 798 (4th

Cir. 1975)

A-42

PAGE

Texas v. Johnson, 491 U.S. —_, 109 S.Ct. 2533

CEBU osc nvdn co's desncdeketcs cheaecunbentaseea 26

Thornburgh v. American Coll. of Obst. and Gyn., 476

CFs Pe CEs nn c0eccsantavededesnessaene 4, 15, 16, 19

Trerice v. Summons, 755 F.2d 1081 (4th Cir. 1985).. 6n

Union Tool v. Wilson, 259 U.S. 107 (1922) ......... l4n

United Broth. of Carpenters and Joiners v. Scott, 463

RS ee ee 5, 9, 9n, l2n

United States v. Ayers, 866 F.2d 571 (2d Cir. 1989).. 1l6n

United States v. Edgerton, 734 F.2d 913 (2d Cir. 1984) 25

United States v. Grace, 461 U.S. 171 (1983)......... 20

United States v. Miller, 540 F.2d 1213 (4th Cir. 1976) 16n

United States v. North, 621 F.2d 1255 (3d Cir. 1980) 16n

United States v. O’Brien, 391 U.S. 367 (1968) ...25, 26, 27

United States v. Ruggiero, 835 F.2d 443 (2d Cir. 1987) 22

United States v. Spectro Foods, $44 F.2d 1175 (3d Cir.

United States Catholic Conference v. Abortion Rights

Mobilization, Inc., 487 U.S. 72 (1988) ............ 28

Volk v. Koler, 845 F.2d 1422 (7th Cir. 1988)........ 70

Webster v. Reproductive Health Services, et al., 492

U.S. » BOB LABS GID Cit vc we cccctececs 4n, lln

Weisberg v. Webster, 749 F.2d 864, 873-74 (D.C. Cir.

ic kc dicniitdaaewckdicd diet ecsiideade codtn 2

Widmar v. Vincent, 454 U.S. 263 (1981) ............ pa |

Wilhelm v. Continental Title Co., 720 F.2d 1173 (10th

Cat, Se wcscudncseesievesdesonsevetsseneee 8n, 9, 9n

A-43

PAGE

White Motor Company v. United States, 372 U.S. 253

i-th ee Pei udesbpedeceecocecceces 17

Young v. U.S. Ex. Rel. Vuitton Et Fils S.A., 481 U.S.

DUC UEEeN eee EOS ed bY edeeeccoeecceccces 14

Statutes and Rules:

Deh ee cous ob deeseoeccoecceecccccce 2

oo. cece cccesvecccecces 17n

42 U.S.C. Section 1985(3) (1976 ed., Supp. V), The

pe EE eee 2, 4, 5, 5n

ee ce cc vec cee esccecoeescece 28, 29

EE Es Ode cocccccceccccccccces ln

1970 Advisory Committee Note to Rule 37(a)(4)...... 29n

Other Authorities:

4A J. Moore, Federal Practice 4 37,02 [10.-4] (2d ed.

New Perspectives on Human Abortion, Part I, Sec. 2:

E. Bleckschmidt, M.D., Human Being from the Very

ee Ee ee ek ese ececceccecs 3n

Lambak, Necessity and International Law: Arguments

Jor the Legality of Civil Disobedience, 5 Yale L. &

Pe EE cad Seeecccceoccccecccsces 3n

—-”.-.mrerre mr err ere

A-44

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

—_

R- NDALL TERRY, OPERATION RESCUE, REV. JAMES P.

~SANTE, THOMAS HERLIHY, JOHN DOES AND JANE DOES,

Petitioners,

—_—V

NEW YORK STATE NATIONAL ORGANIZATION

FOR WOMEN; ef al., Respondents

CrTy OF New YORK,

Respondeni-Intervenor,

UNITED STATES OF AMERICA,

Respondent-Judgment Creditor.

ON WRIT OF CERTIORARI] TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE AND ASSOCI-

ATE JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

Petitioners Randal] Terry, Operation Rescue,’ Rev. James

P. Lisamte and Thomas Herliby respectfully pray that a peti-

uon for a writ of certiorari issue to review the judgment and

opinion of the United S:ates Court of Appeals for the Second

Circuit.

] Operation Rescue is not a corporation under Rule 28.1 of the Rules

of this Court. lts status as a separate entity was an issue in the courts below.

x et

Raa ae ake WEEPLS anced odie ka satiee

Ane re

A-45

This case involves the validity of injunctions against anti-

abortion demonstrations in the City of New York and its

environs, which injunctions provide for a $25,000 fixed

unconditional] fine ogainst each individual for its inizia] viola-

tion and a doubling of the fine for each successive violation,

i.e., $50,000, then $100,000, then $200,000, etc. Uncondi-

tiona] contempt fines imposed on motion papers without a

hearing of $50,000 (originally payable to Respondent

Nationa] Organization for Women, but modified by the panel

to be payable to the United States) and $19,341 (io the City

of New York for police overtime because of failure to give 12

hours advance notice of the exact location of the demonstra-

tion) have already been imposed against Petitioners Terry and

Operation Rescue for violations.”

This case arises in the context of politica] action and public

protests, including ‘‘Operation Rescue’’ blockades of abor-

tion sites, as a result of the abortion of many millions of

unborn children in the United States since 1973. Petitioners

believe that human life is precious. The miracle of conception

and growth of human life within‘a mother’s womb has been

scientifically observed, documented and described.’ However,

since Roe v. Wade, 410 U.S. 113 (1973), thousands of arrests

and prosecutions for trespass and other state law violations

have occurred nationwide. Hundreds have been arrested in

the New York City area alone.

The United Siates experienced similar wrenching social]

upheaval] and politica] division with the Civil) Rights and Viet-

bam war protests of previous decades.“ The evident and pow-

erful result of deeply held beliefs by Americans has always

been politica] protest and civil dissent. It is certain that abor-

2 Swbsequen: to the affirmance by the Second Cirauit, the United

States became 2 party to this acuon as Judgment Creditor of the $50,000

contemp: fine and has vigorously pursued collecuon of this judgment, seizing

tbe Christmas payroll of Operation Rescue on December 22, 1989.

3. New Perspectives on Humen Abortion, Part 1, Se. 2: E. Biech-

schmidt M.D., Humen Being from the Very First (1981).

4 Lambak, Necessity end International Law: Arguments for the

Legality of Civil Disobedience, 5 Yale L. & Pol'y Rev. 472, 480-81 (1987).

ee a ee ee pe ee ee

A-46

tion is the most divisive public issue of the last two decades,’

perhaps the greatest national political and moral question

since slavery.

In this case the district court granted summary judgment

against the petitioners under the Ku Klux Kian Act, 42

U.S.C. Section 1985(3). The demonstrators were held to have

had an invidiously discriminatory animus against a subclass

of ‘‘women seeking abortions,’’ violating their interstate

Right to Travel, although it was evident that the demonstra-

tions were aimed at the general public, and no evidence of

any individual women whose interstate Right to Trave) is

claimed to have been violated was offered.

The following remarks of Justice O'Connor are appropri-

ate as a prism through which the lower courts’ decisions in

this case may be viewed:

Today’s decision goes further, and makes it painfully

clear that no legal rule or doctrine is safe from ad hoc

nullification by this Court, when an occasion for its

application arises in a case “involving state regulation of

abortion.

In so doing, the Court prematurely decides serious

constitutional questions on an inadequate record, in con-

travention of settled principles of constitutional adjudi-

cation and procedural fairness. The constitutionality of

the challenged provisions was no: properly before this

Court. There has been no trial on the merits, and appei-

lants have had no opportunity to develop facts that

might have a bearing on the constitutionality of the

statute.

oa - e

Appellants should not have to prove that they are enti-

tled to an opportunity to be heard. (Emphasis added)

Thornburgh v. American Coll. of Obst. and Gyn., 476 U.S.

747, 814-816 (1986) (O'Connor, J., dissenting). Through

numerous denials of Petitioners’ requests for hearings, and a

$ Websier v. Reproductive Health Services, et al., 492 U.S.

106 L. Ed.2d 410, 463 (1989) (Blackmun, J., dissenting and concurring io

part).

A-47

misuse of the summary judgment procedure, the lower courts

have repeatedly denied the Petitioners their entitled opportu-

nity to be heard on constitutional issues of national] import.

REASONS FOR GRANTING THE WRIT

I. The Second Circuit Erroneously Held That Subgroupinrs

of Gender-Based Animus Come Within the Purview of

§ 1985(3)

By finding that a subgrouping of gender, ‘‘women seeking

abortions,’’ was a sufficient class for § 1985(3), the Second

Circuit has rejected the caution expressed by this Court in

United Broth. of Carpenters and Joiners, Local 610 v. Scott,

463 U.S. §25, 835 (1983), where this Court specifically

refused to affirm that § 1985(3) ‘‘reaches conspiracies other

than those motivated by racial] bias.”’ If it does, then this

Cour should say so and why.

The central dispute of this appeal involves 42 U.S.C. Sec-

tion 1985(3) (1976 ed., Supp. V), The Ku Klux Klan Act of

1871.° The subject matter is abortion. Intervention by this

Court is critica] at this time to clarify the boundaries of the

meaning of ‘‘class of persons’’ and ‘“‘invidiously discrimina-

tory animus,’’ in an manner that lower federal] courts can not

mistake. The strongly worded cautions of this Court in

United Brotherhood of Carpenters and Joiners, Local 610 v.

Scot!, suprc, are now being completely ignored by circuit

courts, most s.ndently by the Second Circuit in this case.

6 <A pmme facie case for relief under 42 U.S.C. Sexion 1985(3) musi

consist of alleging a: least four necessary elements:

(1) @ conspiracy; (2) for the purpose of depriving, athe: direcily or

indirectly, any person or class of persons of the equa! protecion of the

laws, or of equal privileges and immunities unde the law; (3) an aci of

furtherance of the conspiracy; (4) whereby a person is ether injured in

bis person or property or deprived of any righi or privilege of a ciuzen

of the United Szates.

United Board of Carpenters end Joiners, Local 610 v. Scott, supra, at $28-29

(1983) (restating the tes: firs: formulatec in Griffin v. Breckenridge, 403 U.S.

88, 102-03 (1971)).

A-48

The chart below sets forth in graphic terms the broad

nationwide circuit conflict and resuking confusion over the

application of Section 1985(3).

CIRCUIT CLASS BASED ANIMUS

First No circuit cases reach this issue

Second Extremely broad view that women in gen-

eral constitute a class as well as a subgroup-

ing of “‘women seeking abortions’’ and wide

standard of animus;’ Religion;’ political

affiliation’

Third Intra-circuit conflict: open question on

class,° Sex!

Fourth Intra-Circuit Pane] Conflict; Race only;”

Race & Religion; Race, National Origin &

Sex.’* ne ictige

7 N.Y. State Nat. Organization for Women v. Terry, supre (A-37 to

43). Expansive view that “‘animus merely describes a person's basic attitude

or intention."’ (A-42) Cousins v. Terry, 721 F.Supp. 426 (N.D.N.Y. 1989)

(women seeking abortions).

8 Colombrito v. Kelley, 764 F.2d 122, 130-131 (2nd Cir. 1985).

9 Keating v. Carey, 706 F.2d 377, 386-388 (2nd Cir. 1983).

10 Robinson v. Centebury Village, 849 F.2d 424, 430, n.7 (3rd Cir.

1988) (but non-minority employee speech against racist employer practices is

sufficent, citing prior case).

11 Novotny v. Great American Federal Sovings & Loon Ass'n, 584 F.2d

1238, 1243-44 (3rd Cir. 1978) (en banc), rev'd on other grounds, 442 U.S.

366 (1979); Roe v. Operotion Rescue, 710 F Supp. $77, 581 (E.D. Pa. 1989)

(folowing Novotny, *‘women seeking abortions"’ approved).

12 Harrison vy. KVAT Food Management Inc., 766 F.2d 155 (4th Cor.

1985) (in depth analysis of Congressional intent and Scosr: race only); Meaors

v. Town of Oxford, M.D., 762 F.2d 368 (4th Cir. 1985S) (race only)

13 Trenice v. Summons, 755 F.2d 1081, 1085 (4th Cir. 1985).

14 Bushi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985); NOW’ v. Oper-

ction Rescue, Civil Action No. 89-1£S8-A, slip op., 1989 U.S. Dist. Lexis

14919 at 21-22 (D. Va. December 6, 1989) (following Bushi, **women seeking

abortions" approved).

A-49

Fifth Intra-Circuit Conflict: 1) Race only; 2)

Race & Religion;’* 3) Race, Nationa) Origin,

Sex & and political beliefs and associa-

tions;”” 4) Rejected women of childbearing

age seeking medical attention abortions).

Sixth Racial and Political classes.’®

Seventh _—Intra-Circuit panel conflict: 1) Race only;™

2) Race, Sex, Religion, Ethnicity, and Polit-

ical Loyalty.”!

Eighth Sex and Ethnicity.”

18 Daigie v. Gulf Utilities Co., Loca! 2286, 794 F.2d 974, 978-79 (Sth

Cir. 1986); Eitel v. Holland, 787 F.2d 995, 1000 (Sth Cir. 1986); Reyborn v.

Mississippi State Board of Dental Examiners, 776 F.2d $30, $32 (Sth Cir.

1986).

16 Roev. Abortion Abolition Society, 811 F.2d 931, 933-936 (Sth Cir.

1987) (rejected class of those who do not share the defendant’s anti-abortion

views based on religion; protected classes are rate and possibly religion).

17 McLeaon v. International Harvester Co., 817 F.2d 1214, 1218-1219

(Sth Cir. 1987) (caution beyond race, bu: cited pre-Scort Fifth Circuit cases

allowing classes of 1) immutable characteristic such as race, national origin

or sex; and 2) political beliefs and associations).

18 Mississippi Women's Medical Clinic v. McMillan, 866 F.2d 788 (Sib

Cir. 1989) (class of *“twomen of childbearing age who seek medical attention

from the [plainuff clinic]"" was ‘‘so under-inclusive as to mischaracterize the

Gispute”’ and did noi constitute a proper class. Insufficient ‘‘class-based

invidiously discriminatory animus” as ‘‘the animus of tbe protestors is to

dissuade enyone who contributes to the incidence of abortions,”” including

“men, women of all ages, doctors, nurses, staff, the female security guards,

etc."" Jd. at 794-95. The Petitioners in the case at bar have this identical

broac animus).

19 Conklin v. Lovely, 834 F.2¢ 543, $49 (6th Cir. 1987).

20 Demaetov. Wisconsin Gas Co., 760 F.2d 1474 (th Cir. 1985) (reject-

ing class of handicapped, race only); Grimes v. Smith, 776 F.2d 1359 (7tb

Cir. 1985) (race only).

21 = Volk v. Koler, 865 F.2d 1422, 1434 (7tb Cir. 1988).

22 Conroy v. Conroy, $7S F.2d 175, 177 (8th Cir. 1978).

A-50

Ninth Intra-Circuit Panel Conflict: 1) Race only;”

2) Sex;% and 3) Classes granted special pro-

tection by Congress or courts.”

Tenth Restricted to race, in accordance with Con-

gressiona) intent and this Court's decision in

Scott, supra.™

Eleventh ace alleged; issue at beyond race not

reached”

oF nd Race and Politica) affiliations with Racial

overtones.”

The range of class-based animus currently extends from a

strict adherence to race, all the way to women in general and

especially women ‘“‘abortion seekers’’. Of all the circuit

courts, the Second Circuit, by its reasoning, has cast Section

1985(3) the furthest into uncharted waters:

By its very language § 1985(3) is necessarily tied to

evolving notions of equality and citizenship. As conspir-

acies directed against women are inherently invidious,

and repugnant to the notion of equality of rights for all

citizens, they are therefore encompassed under the Act.

(Emphasis added) (A-40)

23. Gibson v. United States, 781 F.2d 1334, 1341 (Mb Cir. 1986) (race

only); Netional Abortion Federation v. Operation Rescue, 721 F.Supp. 1168

(C.D.Cal. 1989) (rejecting ‘‘women seeking abortions"’).

24 Reicherd v. Life Ins. Co., $91 F.2d 499, 505 (Mh Cir. 1979) (a class

of women in general who purchase disability insurance); Portland Feminisi

Women's Health Cenie v. Advoceies for Life, Inc., 712 F.Supp. 165, 169

(D.Or. 1989) (folowing Reichard, *‘women seeking aboriions’’ approved).

25 Schultz v. Sundberg, 759 F.2d 714, 718 (Mb Cir. 1985) (beyond race

if Congress or courts have given class specia! protections).

26 Wilhelm v. Continental Title Co., 720 F.2d 1173, 1177 (10th Cir.

1983); Brown v. Reordon, 770 F.2¢ 896 (10th Cir. 1985).

27 Brown v. Masonry Products, Inc., 874 F.2d 1476 (11th Cir. 1989).

Arnold v. Board of Educ. of Escambie County, Alc., 880 F.2¢ 305 (11th Cir.

1989).

28 Hobson v. Wilson, 737 F.24 1, 21 (D.C. Cir. 1984); Bois v. Marsh,

80] F.2d 462 (D.C. Cir. 1986) (Open question beyond racial animus, but dis-

sent would hold gender discrimination within Section 1985(3)).

A-51

Contrast this open-ended jurisprudence to the more prudent

approach of the Tenth Circuit:

In summary as to the Scott opinion, we find nothing

therein to give any encouragement whatever to extend

. « « [Section] 1985 to classes other than those involved

in the strife in the South in 187] with which congress

was then concerned. In fact from Scott we get a signal

that the classes covered by . . . [Section] 1985 should

not be extended beyond those already expressly provided

by the Coun.”

Despite the cautions from this Court in Griffin® and

Scorr’, the Second Circuit bas brashly ignored the wisdom of

limiting Section 1985(3). While giving lip service to Congres-

sional intent and Scott, the Second Circuit has vastly

extended the reach of this statute to protect almost any con-

ceivable subgroup of the majority of the American popula-

tion, recklessly opening a Pandora’s Box of claims and

claimants Congress never intended to be covered by the stat-

ute. Wilhelm, 720 F.2d at 1176; Harrison, 766 F.2d at 161.

Combined with a broad reading of animus—defined as a

**person’s basic attitude or intention’’—any subgroup of a

generally protected class, regardless of its-limit or description

can now obtain Section 1985(3) relief, even though a conspir-

acy may only tangentially affect them. Section 1985(3) is thus

transformed into the ‘“‘general federal tort law’’ this Coun

warned against in Scort, 463 U.S. at 834.

Judge A. Wallace Tashima has cogently explained why this

same class of “‘women seeking abortions is not a class

intended to be protected by the Ku Klux Klan Act."**

The Court disagrees with the proposition that any ‘‘par-

ticular [sub]clag: of women,”’ id., is a protected class.

29 Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176 (10th Cir.

1983).

30 «Griffin v. Breckenridge, 403 U.S. 88 (1971).

31 United Brotherhood of Carpenters and Joiners, Local 610 v. Scott,

463 U.S. 825 (1983).

32 National Abortion Federation v. Operation Rescue, 721 F.Supp.

1168, 1170 (C.D. Cal. 1989).

A-52

For if the animus is directed at a particular class of

women, then, by definition, it is not directed at other

classes of women or at women as a class. If that is so,

then the discrimination cannot be gender-based, it sepa-

rates persons of the same gender from each other and,

obviously, on a basis other than by gender. The inguiry,

thus, must be made without respect to gender, i.e., i is

the ‘‘seeking abortion’’ trait which animates the defen-

dants’ actions and must be the basis for making the

. . « [Section 1985(3)} analysis.” (Emphasis added).

This ‘‘abortion seeker’’ rationale reflects the factual reality \

of Operation Rescue demonstrations. The general class of

women the Second Circuit attempted to create had no rela-

tionship to the Petitioners’ actions and should be rejected by

this Court.

As this Court has held:

[T)here must be some racial, oF perhaps otherwise class-

based, invidiously discriminatory animus behind the con-

spirators’ action. The conspiracy, in other words, must

aim at a deprivation of the equal enjoyment of rights

secured by the law to all.™

Petitioners respeg fully urge this Court to define the

parameters of ‘‘animus.”’ Is it merely ‘‘a person's basic atti-

tude or intention,”’’” or is it ‘‘il-will’’ or ‘‘a prejudice against

a group of persons or against a particular person because of

his membership in that group’’?™® And should not ‘‘the class

33. 72) F.Supp. at 1171. Ip footnote 4 to this section, Judge Tashima

notes the illogical extension of this argument. If women are 2 protected class,

then all subclasses of women are protected. Likewise, if men are an unpro-

tected class, then all subclasses of men are unprotected. ‘“Therefore, ¢.g., 2

class of homosexual worsen would be protected, but a class of homosexual

men would not be.”” Jd. at 1171 0.4.

34 Griffin. Breckenridge, supra, 403 U.S..at 1C2.

35. N.Y. State Nat. Organization for Women v. Terry, supra, (A-<2).

36 Roe v. Abortion Abolition Society, 811 F.2d 931, 934 (Sth Cir.

1987).

A-53

animus alleged be consistent with the deprivation of rights

alieged."*” The Petitioners submit that the animus or motiva-

tion of the conspiracy, i.e., ‘‘those at whom the conspiracy

was aimed”’ is the proper interpretation.*

In this case not only is the class of ‘‘“women seeking abor-

uions”’ inappropriate, but the alleged ‘‘animus”’ against them

is wholesale fiction. Truth has come full circle where peaceful

non-violent pro-life demonstrators, many of whom are pray-

ing for abortion seekers, are charged with animus against

women similar to the Ku Kiux Klan’s hatred of Blacks and

their supporters. Not only is the paralle] wholly lacking, the

application of the Ku Klux Kian Act against them is an

unprincipled legal fiction of technica] form and only serves to

‘keep the federal] courts embroiled in abortion litigation in the

Post-Websier era in a manner that was not intended by Con-

cress.

Il. The Second Circuit Erroneously Held That Brief Non-

Violent Sit-In Demonstrations on Public Sidewalks Lmpli-

cate The Right to Travel,

Relying on a holding from Doe v. Bolton, 410 U.S. 179,

200 (1973), that State residency requirements for abortions

are inconsistent with the Privileges and Immunities Clause,

together with .a reference to the right against private discrimi-

nation created by the Supreme Court in Griffin v. Breck-

enridge, 403 U.S. 88, 105-06 (1971), the Second Circuit

concluded that the Petitioners’ sit-in demonstrations on pub-

lic sidewalks have denied the Respondents’ constitutional]

Right to Travel (A-~43 to 44).

As a threshold matter, there is no Right to Travel case fac-

tually analogous to Rescue demonstrations of the type

involvec in this case. Such decisions involve infringemen: of

the Right to Travel by state action, principally through dis-

37 Lopez v. Arrowhead Ranches, £23 F.2d 924, 928 (Hh Cir. 1975).

38 Mississippi Womens’ Medical Center v. McMillan, 866 F.2d 788,

794 (Sth Cir. 1989).

39 Webster v. Reproductive Health Services, 492 U.S. WW, 106

L.Ed.2d 410 (1989).

SS nT

A-54

criminatory residency requirements.“ The Right to Travel in

its classic meaning ensures new residents the same right to

vital governmental benefits end privileges in the states to

which they migrate as they are enjoyed by other residents.

Califano v. Gautier Torres, 435 U.S. 1 (1978).

ln analyzing Rescue demonstrations, Judge Tashima has

commented: *“‘Whatever other legal rights and liabilities may

be implicated by such conduct, there is no federal] privilege or

immunity of one class of persons not to have another class of

persons engage in non-violent, civil disobedience.’**’

ln the present case, Respondents did not draw any evidence

of denial of the Right to Travel to any specific identifiable

women. The case rests solely on the generalized allegation of

possible impacts on some women who may perceive some dif-

ficulty in obtaining an abori..o in another jurisdiction. Fur-

thermore, it is clear that out-of-state abortion seekers are

treated no differently than those im the State of New York.

Under the decision of the Second Circuit, even if the con-

suitutional right to an abortion is reversed, Section 1985(3)

and the Right to Travel will become the vehicle not only for

@ continuing onslaught of future abortion Imigation but for

use against every other minority movement that espouses

unpopular positions. The federal] courts will be even further

embroiled, this time as “the monitors of . . . janti-abortion

Gemonstration] tactics’’ rather than ‘“‘campaign tactics,”” the

very situation this Court wisely avoided seven years ago.“

40 Sec e.g., Memorial Hospital v. Maricopa County, 41£ U.S. 250

(1974); Dunn v. Blumstein, 405 U.S. 330 (1972); Shepiro v. Thompson, 394

U.S. 618 (1969). Attorney General of New York v. Soto-Lopes, 476 U.S. 898

(1986).

41 Naetional Abortion Federation v. Operation Rescue, No. CV 89-1181

(AWT) slip op. at 7 (C.D. Cal. January 31, 1990) (dismissing amended com-

plaint with prejudice).

42 United Brotherhood of Carpenters and Joiners, Local 610 v. Scott,

supre 463 U.S. at 636 (emphasis added). This Court was so clear in Griffin

tnat the Ku Klux Klan Act was never “‘intended to apply to all tortious, con-

spiratorial imterferences with the rights of others."" Griffin v. Breckenridge,

supre 493 U.S. at 101. United Brotherhood of Carpenters and Joiners, Local

610 v. Scott, supre, 463 U.S. at 834.

A-55

The contention that non-violent sit-in demonstrations on

public sidewalks involving hundreds of volunteers of con-

science, gathering to protest abortion, rises to a purposeful

constitutional violation of the interstate Right to Travel, is

nothing short of constitutional ambrosia—the creation of a

Federal] cause of action where none exists.

Ill. The Second Circuit Erroneously Held That The Con-

tempt Fines Lmposed by The District Court Were Civil in

Nature

On October 27, 1988, the district court held the Petitioner

Randall Terry and Operation Rescue in contempt, ruling on

mouon papers and denying the Petitioners’ request for a

hearing or even an oral argument (A-78 to 103). The Peti-

uoners submit that the unconditional imposition of the

$50,000 ($25,000/day, originally payable to Respondent

N.O.W. and modified by the pane] to be payable to the

United States) and $19,141] (payable to the City of New York

for police overtime for failure to give 12 hours advance

notice of the exact location of the demonstration) fines made

the contempts criminal] in nature, since there was no purge

mechanism available to the Petitioners to comply with and

escape the sanctions (A-104 to 108). ¥ .°

The pane] reasoned that since the district court added the

$25,000 sanction to its injunction before the Petitioners vio-

lated the TRO, the Petitioners’ opportunity to comply neces-

sarily came at that initia] point (A-22 to 23). This rationale

cannot be reconciled with the settled contempt jurisprudence

of this Court. A recent decision of this Court summarized a

century’s worth of this Court's settled contempt jurispru-

dence:

If the relief provided is a fine, it is remedia] when it is

paid to the complainant, and punitive when it is paid to

the court, though a fine that would be payable to the

court is also remedia] when the petitioner can avoid pcy-

ing the fine simply by performing the affirmative act

required by the court’s order. These distinctions lead up

to the fundamental proposition that criminal penalties

may not be imposed on someone who has not been

A-56

afforded the protections that the Constitution requires

of such criminal] proceedings, . . . An unconstitutional

penalty is criminal in nature because it is ‘‘solely and

exclusively punitive in character."’ Penfield Co. v. SEC,

300 U.S. 585, 593, 67 S.Ct. 918, 922 91 L.Ed. 1117

(1947). * * * This Court ruled that since the man was

not tried in a proceeding that afforded him the applica-

ble constitutional] protections, he could be given a condi-

tional] term of imprisonment but could not be made to

poy ‘a flat, unconditional fine of $50.00."’ Penfield,

supra.

Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 632-33

(1988) (citations omitted) (emphasis added). The uncondi-

tiona] and punitive nature of the $50,000 and $19,14] fines

are manifest.

The fact that the lower courts have conveniently denomi-

nated their penalty ‘‘civil coercive contempt’’ (A-22 to 23) is

not controlling and should not be allowed to defeat applica-

ble protections of federa] constitutional] law. Hicks v. Feiock,

supra, 485 U.S. at 631. The unconditional character of the

court’s contempt orders made the contempt criminal]. Since

none of the due process protections, required in criminal] pro-

ceedings, were afforded Petitioners Randall Terry and Opera-

son Rescue, the contempt judgments must be reversed.

Young v. U.S. Ex Rel. Vuitton Et Fils $.A., 481 U.S. 787,

798-99 (1987).

ln the decision below, the Second Circuit stated ‘“‘|a]bsent

the threat of imprisonment, the Constitutional due process

protecuons generally are no: required in a civil contempt pro-

ceeding.”” (A-2]) This analysis reveals the unorthodox view

that due process protections are generally inapplicable to situ-

auons involving monetary sanctions. Nothing could be

further from this Court's jurisprudence.”

43. Penfield v. Securities & Exchange Commission, 330 U.S. 585, £92-

£95 (1947) (an unconditional $$0.00 fine was a criminal sanction), Union

Tool v. Wilson, 259 U.S. 107, 110 (1922), (a $2,500 fine payable to the coun

was a ciminal sanciion); Nye v. United Siaies, 313 U.S. 33, 34 (1941)

(unconditional fines payable to the United Siates carry the criminal hall-

mark); Hicks v. Feiock, supre.

A-57

Regarding unconditional versus conditional sanctions, this

Court has often stated that a civil contempt sanction must

have a mechanism whereby the contemnor can subsequently

comply with the court’s order and thereby purge himself of

the contempt. See, Shillitani v. United States, 384 U.S. 364,

371 (1966); Hicks v. Feiock, supra; Penfield v. Securities &

Exchange Commission, supra. On December 9, 1988 and

Noveinber 3, 1988, when unconditional contempt judgments

and fines against the Petitioners were entered, there was

nothing the Petitioners could have done to purge themselves

of the contempt (A-104-105, 107-108). The judgments were,

therefore, ipso facto, criminal] in nature.

The criminal nature of the contempt judgments is revealed

by their punitive quality (to vindicate the authority of the

court), and not as ‘‘remedial, and for the benefit of the com-

plainant.’’ Gompers v. Buck’s Stove & Range, 221 U.S. 418,

441 (1911). The Second Circuit's decision is replete with pejo-

Tative references to the Petitioners’ purported defiance (A-2]

to 26). The fact that the Second Circuit modified the Novem-

ber 3, 1988 $50,000 Judgment to be payable to the court (the

United States) and not to the private Respondent N.O.W.,

makes the judgment more clearly punitive in nature and not

remedia] and for the benefit of the complainant. Moreover,

the fimes are clearly ‘‘intended as a deterrent to offenses

against the public’ and ‘‘to punish the act of disobedience

as a public wrong.’

The Second Circui:’s holding that the petitioners’ opportu-

nity to comply with the order came before a violation

occurred only manifests, in a rour de force manner, the pejo-

rative comments of Justice O’Connor in Thornburgh, supra.

The purge mechanism doctrine comes into play after 2 party

is adjudged in contempt, so that the sanction is imposed with

conditions which aliow the contemmor to escape the sanction

by compliance with the order. This case involves, however,

violations of orders to refrain from prohibited action which

44 Nye, supra, 313 U.S. at 42. See Second Circuit discussion at A-51

(public bealth and safety at risk).

45 Micheelson v. United States, 266 U.S. 42, 65 (1924).

A-58

cannot be purged; the only appropriate response of a court is

to punish past conduct, which is classic criminal contempt.“

These conditionality and purge mechanism requirements

for civil contempt have been uniformly followed by other cir

cuit courts,” as well as other Second Circuit decisions.“

Apparently then, the only reason they were not applied here

is the grim reality that in cases involving abortion, ‘‘a permis-

sible reading of the flaw) is to be avoided at al) costs.’

Thornburgh, supra 476 U.S. at 812 (White, J., dissenting).

IV. The Petitioners Have Been Denied A Fair Tria! on

Constitutional Issues

The preemptive summary judgment upheld by the Second

Circuit has denied the Petitioners an opportunity for a com-

plete hearing with discovery on the complex factual] and con-

stitutional issues in this case, dealing with the Right to

Travel, the First Amendment, the defense of ‘“‘necessity’’ to

protect human life, and the right to privacv-abortion. Other

than a limited hearing with regard to issuance of a prelimi-

nary injunction, held on October 25 and 27, 1988, the trial

court has effectively denied the Petitioners a full evidentiary

hearing on the permanent injunction, and has tried the case

and rendered judgment in favor of the Respondents on the

basis of mere affidavits presented by Respondents’ emplov-

ees, which are flawed by hearsay and legal] conclusions (A-

192 to 203). Because genuine issues of materia] fact remain

46 See also, Crozer-Chesier Medical Center v. Moran, $60 A.2¢d 133

(Pa. 1989) (contempt agains: anu-abortion protester adjudged to be cnmi-

nal).

47 Dougias v. First National Realty Corp., $43 F.2d 894 (D.C. Cir.

1971); United Sietes v. Millie, $40 F.2d 1213 (4th Cir. 1996); United Siaies v.

Spectro Foods, $44 F.2d 1178 (3rd Cir. 1976); United States v. North, 621

F.2d 1288 (3rd Cir. 1980); in re: Siewert, $71 F.2d 958 (Sth Cir. 1978); Fai-

steff v. Miller, 72 F.2d 770 (9b Cir. 1963).

48 In Re Grand Jury Witness, 835 F.2d 437, 442 Qd Cir. 1987) cet.

denied sub nom. Arambulo v. United Siaies, 485 U.S. 1039 (1988) (stating a

$50,000 fine was clearly criminal contempt); U.S. v. Ayers, 866 F.2d 571

(2nd Cir. 1989) (determinate sentence vacated because of absence of purge

mechanism), Hess v. New Jesey Transit Rail Operations, Inc., 946 F.2d 114

Qé Cir. 1988) (unconditional fine vacated).

A-59

unresolved, the district court’s action, as affirmed by the cir-

cuit court, therefore, conflicts with existing authority and

decisions of this Court.

In its summary judgment decision, the district court noted

the Petitioners were not entitled to further discovery because

they had “‘presented no evidence in their papers opposing

summary judgment that would bring into question the undis-

puted facts on the record.’’ (A-]37 n.17) This reasoning is

inexplicably narrow, in view of the fact that at the hearing of

October 25 and 27, the Petitioners—despite their strenuous

objection—were required by the court to put their witness

and evidence on first, in response to the bare allegations con-

tained in Respondents’ supporting affidavits. (A-28] to 285)

Petitioners’ witnesses, point by point, refuted the Respon-

dents’ affidavits at that hearing (Dr. Bernard Nathanson

(medica]) at A-204 to 225 and Dr. Stephanie O'Callaghan

(psychological and emotional) at 237 to 250). In spite of this

clear factual conflict, the lower court has refused the Peti-

uioners a reasonable opportunity to conduct discovery. See,

Respondents’ Complaint at 942 (A-164); Petitioners’

Answers at | 42 and 4 63 (A-180, 182, 188, 190).

Constitutional questions and issues of public importance

should be decided only with a properly developed factual

predicate, and ‘‘where the record is inadequate for the consti-

tutiona] question presented or there are genuine factual

issues, a2 mowuon for summary judgment should be denied.”’

6(2) J. Moore, Moores Federal Practice Sec. 56.17(10) (1988).

See, Board of Education, Isiand Trees Union Free School

District No. 26 v. Pico, 457 U.S. 8£3 (1982). In Poller v.

Columbia Broadcasting System, 368 U.S. 464, 473 (1962),

involving Questions as to motive and intent, this Court said

that ‘“‘[tjrial by affidavit is no substitute for trial by jury

which has so long been the hallmark of ‘even handed

justice.” White Motor Company v. United States, 372 U.S.

253, 259 (1963). See also, Motown Record Corp. v. Mary

Jane Girls, Inc., 118 F.R.D. 35, 37 (S.D.N.Y. 1987).”

49 12 Donahue v. Windsor Locks Bd. of Fire Com’rs., 834 F.2d 54, 58

(2d Cir. 198/), dealing with a 42 U.S.C. Sec. 1983 action involving alleged

Freedom of Speech violations, Judge Kaufman, speaking for the panel,

A-60

Petitioners’ intent in conducting the demonstrations in this

case has been to protest abortion, to defend unborn human

life and to advise and protect mothers concerning the imme-

diate and long term consequences of abortion. This intent

was directly at issue below—indeed, a finding of class-based

animus was critica] to upholding federal jurisdiction over

Respondents’ claims. N.Y. State Nat. Organization for

Women v. Terry (A-4) to 43). The Petitioners, however, have

been denied a full hearing in contravention of the holding in

Poller, supra, and following cases.

The Petitioners’ threshold evidence presented at the prelim-

inary hearing on October 25 and 27, 1988, in the testimony

of Dr. Nathanson and Dr. O'Callaghan, (A-204 to 250)

refuted in detail the claims of the Respondents’ supporting

affidavits regarding endangerment of the mothers’ health and

demonstrated that ‘‘genuine issue(s) of material fact’’

remained for discovery and trial. Matsushita Electric Indus-

trial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

Despite the existence of disputed issues of ‘‘material fact,"’

the district court entered summary judgment in favor of the

Respondents. This is impermissible, for as this Court has

recently stated: ‘“‘[A)t the summary judgment stage the

judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether

there is a genuine issue for trial.’’ Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).*

noiec tha: summary juGgmen: musi ‘‘be used selectively to avoid trial by

affidavit.”” (citing Judge v. City of Buffalo, $24 F.2d 132i Qe Cir. 1975).

See aiso, City of Los Angeies v. Preferred Communications, 476 U.S. 480

(1986) (reversing a dismissal because of inadequate record for First Amend-

ment claims).

50 Similarly, the Second Circui: has observed that upon motion for

summary judgment, a court “ ‘cannot try issues of fact; it can only deter-

mune whether there are issues to be tried.’ '’ Donahue v. Windsor Locks Bd.

of Fire Com'rs., 34 at 58. ““Wher the Court considers a summary judgment

mouon, it must draw all reasonable inferences and resolve all ambiguities in

favor of the non-moving party."’ Gerze v. Marine Transport Lines, Inc., 87!

F.2¢ 23, 26 (2d Cir. 1988); City of Yonkers v. Otis Elevator Co., 844 F.2d

42, 45 (2d Cir. 1988).

A-61

Equally important, the district court has prematurely

decided ‘“‘serious constitutional questions on an inadequate

record, in contravention of settled principles of constitutional

adjudication and procedural fairness.’ Thornburgh v. Ameri-

can Coll. of Obst. and Gyn., 476 U.S. 747, 815. (O’Connor,

J., dissenting). The Petitioners have been summarily denied

the opportunity to properly and fully present their case and,

in particular to refute the Respondents’ generalized and

unsupported claims that the right to abortion is unduly bur-

dened, or that the Right to Trave] is abridged, let alone

adversely affected, by Petitioners’ Rescue activities.

The constitutional and factua] questions of this case

deserve a full trial and scrutiny under the discovery process.

To do otherwise, would deny the Petitioners a fair adjudica-

tion, establishing a pattern of truncated, pro forma summary

judgments for a ‘‘specia]"’ class of cases in which abortion is

challenged as a matter of fact or law.

V. Petitioners’ First Amendment Rights Have Been Violated

By Court Orders That Lmposed Unlawful Prior Restraint

of Protected Speech

Petitioners’ practice of non-violent sit-ins and protests is

aimed at temporarily closing the entrance of abortion centers

and passively demonstrating, including displaying placards,

wearing armbands, counseling, persuading, singing and pray-

ing.

Operation Rescue volunteers, as a matter of conscience and

Geeply held persona] conviction, seek to directly save the life

of unborn children scheduled for abortion and to turm the

heart of the nation, its legislators and jurists away from the

pracuce of abortion on demand, through legislation and legal

decisions. (A-256 to 280)

Operation Rescue specifically directs its participants in

writing that all demonszrations will be peaceful and passive in

nature, and requires each demonstrator to sign a pledge of

non-violence. (A-257 to 258, 270 to 271) Rescues conducted

in the New York City area have in fact been non-violent and

peaceful.

A-62

Although under existing Supreme Court decisions, the non-

violent activity of temporarily blocking entry to an abortion

center is not of itself protected by the First Amendment,

Adderly v. Florida, 385 U.S. 39 (1966); Coax v. Louisiana,

379 U.S. $36 (1965), the peaceful presence of demonstrators,

the display of placards, and other demonstration activities

such as singing, prayer, counseling and vocal] persuasion, fall

directly within the ambit of activity historically protected by

the First Amendment. E.g., Hague v. CJO, 307 U.S. 496

(1939); United States v. Grace, 461 U.S. 171 (1983); Edwards

v. South Carolina, 372 U.S. 229 (1963). The question which

arises in this case is: Shall public demonstrations containing

elements of civil disobedience or individual acts of civil dis-

obedience for political purposes be treated in al] aspects as

non-expressive conduct, deserving no First Amendment safe-

guards whatsoever? The reach of constitutional constraints, if

any, on court or police action in regard to demonstrations

such as Operation Rescue which include expressive conduct

and non-violent acts of civil disobedience, will turn on this

issue.

A. Coercive Fines, Content Discrimination And Prior

Restraint

In proceedings below, the district court has issued injunc-

tions and penalties, striking at the political content of Peti-

tioners’ message, chilling the First Amendment arena with

broad restraints, buttressed by huge fines. On May 4, 1988,

attorneys for Respondents and Petitioners herein appeared

before the Honorable Robert J. Ward, U.S.D.J. Southern

District of New York, to argue a show cause for violation of

a TRO against Petitioners’ sit-in demonstrations at New York

City abortion clinics (during the period of May 1-6, 1988)

originally entered by the Supreme Court of the State of New

York on April 28, 1988. Without hearing evidence of irrepa-

rable harm, Judge Ward adopted the Temporary Restraining

Order issued against Petitioners by the New York State

Court, and additionally modified it by adding a prospective

$25,000 per day fine for violation of the TRO provisions,

A-63

together with costs expended by the City of New York for

police presence at the demonstrations. (A-53 to 55)

In discussing disposition of a potential coercive fine

imposed for violation of the TRO, Judge Ward, without

request from the Respondents, indicated that he was planning

ultimately to have the fine paid to the Respondents. The fol-

lowing exchange of remarks occurred:

Mr. COLE: [for the Respondents] ‘‘Well no, it is for the

purpose of coercing compliance. If $25,000 doesn’t

work, then it is appropriate to increase the penalty.

However, my understanding is that that penalty goes to

the Court, not to Respondents.”’

THE Court: *‘Oh, no. The way ] understand this busi-

ness of coercion is that ] can direct the penalty to be

paid in any way I deem appropriate. Partly, I would

suggest, 1 would be considering that the penalty be paid

in such a way as to encourage compliance. ] think if ]

may say so, the most effective way to do that would be

to direct that the payments be made to the Respondent

or Respondents. ] don’t think that is something that the

petitioners would be happy with, but J would certainly

suggest that if ] were made to pay someone who IJ con-

sidered my—, ] won’t say enemy, J won’t say thai—a

person who has a different point of view who might

then use the money to buy advertising space and do

other things to counter-atiack my attack, I think the

whole thing might turn into a rather interesting political

exercise. But that is for another day. (emphasis added)

By court opinion dated October 27, 1988, Judge Ward

found Petitioners Randall Terry and Operation Rescue to be

in Civil Contempt of the Court’s May Sth Order for demon-

strations held on May 5th and 6th, 1988 and assessed a pen-

alty of $50,000, which was ordered to be “‘paid to plaintiff

Nationa] Organization of Women and disbursed among the

remaining respondents according to its discretion.’’ (A-104)*"

$1 The district court additionally found Petitioners Terry and Opera-

uon Rescue liable to pay City of New York excess police costs, and subse-

quently ordered $19,141 to be paid by Petitioners. (A-106 to 108)

A-64

In the first instance, as subsequently held by the circuit

court on appeal) in this case, the district court had no author-

ity to order coercive penalties to be paid to the Respondents.

(A-27 to 29). The penalties in this case were unequivocally

identified as ‘‘coercive’’. More importantly, the Judge's

remarks on May 4th revea) with astounding clarity the court's

intention to punish and coerce the Petitioners by making

money available to Respondents for the express purpose of

opposing and ‘‘counterattacking’’ Petitioners’ political

beliefs. No case, no principle of law, can support an implic-

ily intentional court use of the system of justice to under-

mine G sist the Petitioners’ First Amendment cause, in

order to coerce behavior. Cases regarding impermissible gov-

ernment discrimination against the content of First Amend-

ment speech activity underscore this tenet.”

lt is particularly egregious that in providing $25,000 daily

fines, the court made no subsiantia] inquiry into the financial]

ability of

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