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New York State National Organization for Women v. Terry

decided: September 20, 1989.


Operation Rescue, et al., appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) entered on January 10, 1989 that denied appellants' motion to dismiss plaintiff New York State National Organization for Women's and plaintiff-intervenor New York City's complaints, and granted plaintiffs' motions for summary judgment on their claims asserted pursuant to 42 U.S.C. § 1985(3) (1982) and pendent state law claims. Appellants also appeal from the issuance of a permanent injunction restricting their attempts to block ingress and egress from abortion clinics in the New York Metropolitan area. Modified, and as modified, affirmed.

Cardamone and Pratt, Circuit Judges and Morris E. Lasker, District Judge.*fn*

Author: Cardamone

CARDAMONE, Circuit Judge

The principal question presented on this appeal is whether the First Amendment grants Operation Rescue (appellants) the right to engage in activities designed to deny access to abortion clinics to women seeking the services they provide. We must determine if the limitations placed by the district court on appellants' actions and speech square with the constitutional rights guaranteed all citizens under the First Amendment. We think they do.

Insofar as appellants' attempts to block ingress and egress to plaintiffs' clinics resulted in Operation Rescue demonstrators' physical presence on the clinics' premises, they were trespassers without right, constitutional or otherwise, to be there. Insofar as appellants' rights of free speech were exercised in close proximity to individual women entering or leaving the clinics so as to tortiously assault or harass them, appellants' rights ended where those women's rights began. There is no constitutional privilege to assault or harass an individual or to invade another's personal space. Hence, the tortious interference with the constitutional rights of those entering or leaving the clinics subjects appellants' First Amendment rights to the limitations contained in the injunction that is the subject of this appeal.

Defendants Randall Terry and Operation Rescue appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) entered on January 10, 1989, which denied defendants' motion to dismiss; granted plaintiff New York State National Organization for Women's (N.O.W.) and plaintiff-intervenor City of New York's (City) motions for summary judgment on their claims under 42 U.S.C. § 1985(3) (1982) and the New York common law of trespass and public nuisance, respectively; and permanently enjoined defendants from impeding or obstructing ingress into and egress from medical facilities during anti-abortion demonstrations.

Appellants challenge the constitutionality of a series of injunctions issued during the course of this litigation, as well as the substantive grounds upon which the permanent injunction is based. See New York State Nat'l Org. for Women v. Terry, 704 F. Supp. 1247 (S.D.N.Y. 1989) (decision on the merits resulting in permanent injunction); New York Nat'l Org. for Women v. Terry, 697 F. Supp. 1324 (S.D.N.Y. 1988) (contempt order of October 27, 1988). For the reasons that follow the district court's judgment is modified, leaving in place the permanent injunction, and as modified, it is affirmed.


I State Court Proceedings

Plaintiffs commenced this action in New York State Supreme Court on April 25, 1988 seeking declaratory and injunctive relief to restrain Operation Rescue from blocking access to medical facilities providing abortions. The complaint alleged eight separate causes of action: violations of New York City Rights Law § 40(c) and New York Executive Law § 296; public nuisance; interference with the business of medical facilities; trespass; infliction of emotional harm on patients and employees of medical facilities; tortious harassment of patients and employees of medical facilities; false imprisonment of patients and employees of medical facilities; and conspiracy to deny women seeking abortion or family planning services the equal protection of the laws and equal privileges and immunities, in violation of 42 U.S.C. § 1985(3).

On April 28, 1988 a temporary restraining order (TRO) that did not expressly enjoin Operation Rescue from blocking access to health care facilities was issued in New York state court. On May 2, 1988, as a result of a demonstration outside a Manhattan abortion clinic, a second TRO was issued that enjoined Operation Rescue 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 from May 2, 1988 to May 7, 1988." See 697 F. Supp. 1324, 1327 n. 3 (S.D.N.Y. 1988). On May 3, 1988 Operation Rescue held a demonstration in Queens outside another abortion clinic at which several hundred participants were arrested. At a hearing held in state court, the City's application to intervene was granted. Defendants then successfully petitioned to remove the suit to federal district court based upon the claim asserted pursuant to 42 U.S.C. § 1985(3).

II District Court Proceedings

A. The May 4 TRO and Contempt Proceedings

On May 4, 1988 Southern District Judge Ward continued the state court's TRO, but modified it substantially in light of the events of the previous day. In addition to the prohibitions on obstructing ingress and egress, the district court added coercive sanctions of $25,000 for each day that defendants violated the TRO, and required defendants to give advance notification to the City of the location of any planned demonstration. Judge Ward also ruled that failure to give such advance notice would make Operation Rescue liable for excess costs incurred by the City. The district court, as had the state court, granted the City's motion to intervene. Defendants moved on May 5 to vacate the TRO issued the day before for plaintiffs' alleged failure to comply with Fed.R.Civ.P. 65(c). The district court denied the motion on May 6, and we denied defendants' application to stay the TRO pending an expedited appeal.

Operation Rescue demonstrated in Hicksville, New York and in Manhattan, on the mornings of May 5 and May 6, respectively. It is undisputed that its leader, defendant Randall Terry, was aware of the TRO but did not alter his written instructions to demonstrators to continue to obstruct access to the abortion clinic. New York City police also read the TRO twice over a megaphone to demonstrators during the May 6 blockade. When the demonstrators failed to comply, 320 of them were arrested.

On May 31, 1988 plaintiffs sought civil contempt sanctions against defendants pursuant to Fed.R.Civ.P. 70 and 18 U.S.C. § 401 (1982) as a consequence of the events of May 5th and 6th. The district judge granted the motion and denied defendants' cross-motion to dismiss. In a judgment entered November 4, 1988 defendants Operation Rescue and Terry were held jointly and severally liable for $50,000 in civil contempt sanctions to be paid to plaintiff N.O.W., see 697 F. Supp. at 1329, and in a judgment dated September 9, 1988 for $19,141 to be paid to the City for its costs that resulted from defendants' failure to give advance notice of either demonstration. In so holding, the court rejected Operation Rescue's contentions that the various plaintiffs and plaintiff-intervenor lacked Article III standing and that the contempt proceeding was criminal in nature rather than civil. See id. at 1329-34, 1336-38.

B. The October 27 Preliminary Injunction

Meanwhile, on October 7, 1988, plaintiffs moved to modify the earlier May 2 order that had enjoined defendants from May 2 to May 7. Plaintiffs sought to broaden the injunction to include the period October 28-30, 1988 in response to Operation Rescue's plan to conduct on those dates a "National Day of Rescue." Following a hearing, the trial court on October 2 replaced its earlier TRO with an order containing the same terms as its May 4th TRO. Defendants' application for a stay of that order was denied because counsel was unable to represent that defendants would desist from further demonstrations pending appeal. An application for a stay pending appeal was also denied in this Court. Notwithstanding the modified preliminary injunction, several hundred Operation Rescue followers conducted demonstrations at Dobbs Ferry, New York and at Deer Park in Suffolk County, New York on October 29, blocking in each instance ingress to and egress from an abortion clinic for several hours.

C. The Discovery Dispute

On May 31, 1988 plaintiffs served defendants with two notices of deposition requesting information regarding employment, assets and income pursuant to Fed.R.Civ.P. 30 and 34. Claiming privilege under the First, Fourth, Fifth and Fourteenth Amendments, defendants refused to produce any of the requested documents. Plaintiffs moved to compel discovery; defendants cross-moved for a protective order. In an opinion dated August 31, 1988 Judge Ward denied the cross-motion for a protective order, and awarded plaintiffs the fees and costs of the motion in the amount of $16,142.75 to be paid jointly and severally by defendants and their counsel.

D. The Merits

In November 1988 plaintiffs learned that Operation Rescue had planned demonstrations in front of unspecified clinics in the New York Metropolitan area for the weekend of January 12, 1989. In a November 16 letter to Operation Rescue participants, defendant Terry acknowledged his intention to disobey the district court's contempt order, and asked, "[will] we let this N.Y.C. court intimidate us back into silent cooperation with the killing . . . . [or] will we face down this judge's order . . . ?" This threat to continue demonstrations prompted plaintiffs' December 21, 1988 motion for summary judgment and for an order permanently enjoining Operation Rescue from blockading facilities providing abortion-related services.

At the same time, defendants' motion to dismiss was pending before the district court. In that motion, defendants renewed their argument that plaintiffs and the City, as plaintiff-intervenor, lacked Article III standing and challenged the sufficiency of the plaintiffs' complaint as to each asserted cause of action. Defendants also asserted that the complaint failed to allege sufficiently grounds for a permanent injunction, and that defendants' earlier notices of appeal had divested the district court of jurisdiction. After hearing oral argument on the consolidated motions, the district judge on January 10 issued a permanent injunction that again enjoined defendants from blocking access to plaintiffs' medical facilities. The amount of sanctions was doubled to $50,000 for each successive act in violation of the injunction.*fn1

In a January 21, 1989 opinion Judge Ward granted plaintiffs' motion for summary judgment on their common law trespass claim and on their 42 U.S.C. § 1985(3) federal cause of action. As to the latter claim, the court first held that defendants had demonstrated a discriminatory animus toward a class of women choosing abortion, see 704 F. Supp. at 1259, and had conspired to infringe upon such women's constitutionally protected right of interstate travel. See id. at 1259-60. The trial judge also considered plaintiffs' allegations that the conspiracy had threatened to deprive such women of their right to choose abortion, and ruled that their right to privacy had been violated and that there was sufficient state involvement in the violation to state a claim under § 1985(3). It further held that the City had proved all the elements of its public nuisance claim and was therefore entitled to summary judgment. Id. at 1261-62. Finding that plaintiffs had demonstrated success on the merits, the absence of an adequate remedy at law, and that the balance of equities tilted in plaintiffs' favor, it issued an order permanently enjoining Operation Rescue and its participants from blocking ingress into and egress from medical facilities providing abortion-related services. Id. at 1262-63.

Defendants now take this consolidated appeal from all of the foregoing judgments and orders. Because of the myriad actions taken in the trial court, we address only those issues that merit discussion.


The principal questions presented are discussed as follows: (1) standing, (2) jurisdiction, (3) contempt and sanctions, (4) discovery and costs, (5) summary judgment, and (6) permanent injunction

I Standing

The "threshold question in every federal case" is whether a federal court has the authority to adjudicate the lawsuit. Warth v Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). The limitations placed on federal judicial power have a constitutional dimension, flowing from Article III, and a prudential dimension, derived principally from notions of judicial self-governance. See Allen v. Wright, 468 U.S. 737, 750-52, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-75, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982).

Article III requires that a party invoking the jurisdiction of a federal court show (1) that as a result of defendants' allegedly illegal conduct, it has personally suffered some actual or threatened injury, (2) which is "fairly traceable" to the challenged actions of defendants, and (3) that is likely to be redressed by grant of the requested relief. See Allen v. Wright, 468 U.S. at 751; Valley Forge, 454 U.S. at 472. The prudential limitations on jurisdiction require that a plaintiff establish that he or she is the proper proponent of the rights asserted; a litigant may not raise the rights of a third-party, or assert speculative, conjectural or generalized grievances more appropriately resolved by a governmental body, other than the courts. See Valley Forge, 454 U.S. at 474-75. Together, these constitutional requirements and prudential concerns ensure that federal courts adjudicate only concrete disputes in an adversarial factual and legal context. The standing of the different categories of plaintiffs is considered in light of these principles.

A. Health Care Providers

The health care clinics and abortion providers brought suit on behalf of themselves, their employees and their patients.*fn2 Their complaint alleges an imminent threat of injury to their businesses and requests wholly prospective relief -- a declaration that defendants' actions are in violation of law and a permanent injunction prohibiting such actions in the future.

Defendants contend that by not producing a single woman denied access to a clinic by their activities, plaintiffs failed to establish injury in fact. See Roe v. Operation Rescue, No. 88-5157, slip op. at 5-7 (E.D.Pa. Dec. 20, 1988) (denying standing to physician and abortion clinics because they were not past or present targets of Operation Rescue blockades). Concededly, a plaintiff must show that "he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged conduct," one that is not conjectural or speculative. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983); O'Shea v. Littleton, 414 U.S. 488, 496-97, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) (past exposure to illegal conduct does not show present controversy; more than possibility of repeated illegal action required).

In Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976), the Supreme Court held that physicians had standing to challenge a Missouri statute that excluded from Medicaid funding all abortions except those deemed "medically indicated." 428 U.S. at 108-09. The Court acknowledged that two distinct standing questions were presented: whether the physicians alleged an adequate injury in fact, and whether, as a prudential consideration, the physicians could assert not only their own rights, but also the rights of their putative patients. Id. at 112-13. It concluded that the physicians alleged an injury to their own rights because the challenged statute barred payment -- that the doctors would otherwise have received -- for all nontherapeutic abortions. Id. at 113. A plurality then held that the physicians could properly assert the constitutional rights of their patients, id. at 113-15, reasoning that the confidential nature of the relationship of doctor and patient assured the effective presentation of the patient's rights, and that practical obstacles often obstructed a woman's assertion of her own rights. See id. at 116-17.

The plaintiff clinics similarly assert their own right to be free of tortious acts in conducting their business activities. Each clinic at which a demonstration ultimately occurred was, as the record reveals, inoperable because entrance to and exit from the clinic buildings was completely blocked by several hundred Operation Rescue demonstrators sitting or standing in front of the building doors.

The clinics also assert the rights of their patients to travel freely to obtain abortion services. And here, too, the enjoyment of those rights is "inextricably bound up with the activity the litigant wishes to pursue," Singleton, 428 U.S. at 114. Thus, we are assured that the clinics represent the rights and interests of the women seeking their assistance. See Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987). Compare Diamond v. Charles, 476 U.S. 54, 65-67, 106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986) (denying pediatrician standing to enforce Illinois Abortion Law because injury of lost fees from aborted fetuses based on speculative independent actions of third-party patients, explicitly distinguishing Singleton).

Moreover, defendants' tactics add to the threatened danger that the clinics will suffer a real and immediate injury, because Operation Rescue insists on keeping secret which clinics it has targeted. Absent a known and specific target, each of the plaintiff clinics cannot help but assume that it is the one slated for a disruption of its business activities. This insistence on secrecy coupled with Operation Rescue's ability to muster quickly hundreds of participants at a chosen site necessarily broadens the scope of the threat Operation Rescue poses to all the plaintiff clinics.

We think the threat of injury is real and immediate as it relates to the rights of women seeking abortion services. Such individuals typically come to the clinics seeking first trimester abortions; second trimester abortions require more complicated procedures and, often, different facilities. Thus, women seeking first trimester abortions who are denied access by defendants may later be obliged to undergo a medically more serious second trimester abortion. One such uncontradicted case is documented in the record. Consequently, plaintiff health care providers have standing to bring this action on their own behalf and to assert the rights of their patients as well.

B. Organizations

In their complaint and throughout this litigation, plaintiff organizations have sued alleging standing as organizations qua organizations, and also as representatives of their membership.*fn3 Compare Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982) (HOME, organization supporting equality in housing opportunities) with Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343-45, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977) (Washington State Apple Advertising Commission, organization promoting Washington apples). The Supreme Court has held that an organization may have standing under certain conditions solely as a representative of its members, even absent an injury to itself. See New York State Club Ass'n v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 2232, 101 L. Ed. 2d 1 (1988); Int'l Union, United Automobile Workers v. Brock, 477 U.S. 274, 281-82, 91 L. Ed. 2d 228, 106 S. Ct. 2523 (1986). These conditions were crystallized in Hunt

[An] association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

432 U.S. at 343. Significantly, the Court also stated that where an organization "'seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.'" Id. at 343 (quoting Warth, 422 U.S. at 515). See also New York State Club Ass'n, 108 S. Ct. at 2232 (noting that the purpose of the first Hunt element is "simply to weed out plaintiffs who try to bring cases . . . by manufacturing allegations of standing that lack any real foundation"); UAW v. Brock, 477 U.S. at 287-88 (suggesting that Hunt's third element is more readily satisfied by injunctive relief than damages that require more particularized proof of injury).

These preconditions to representational standing are fully satisfied. First, the organizations consistently alleged that they "[intended] to help protect and guarantee women's access to the facilities" and that as a result of Operation Rescue's activities access was denied from April 30 to May 7, 1988 at locations throughout the New York Metropolitan area. These plaintiffs have demonstrated therefore both their legitimate associational interest and an adequate individual interest to satisfy the first Hunt criterion. See UAW v. Brock, 477 U.S. at 290 ("[The] doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.").

Second, it is beyond question that each organization seeks to protect interests germane to its associational purpose. These plaintiffs have repeatedly alleged that they are "dedicated to assuring the constitutional right of women to choose abortion" ...

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