PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

Jane Roe, II, Plaintiff, by and through her undersigned attorney, hereby responds to the Motion To Dismiss of August 3, 1999, saying:

BACKGROUND

1. On March 29,1997, Jane Poe, II entered the Aware Woman abortion clinic in Melbourne, Florida and paid for an abortion. When the abortion started, she realized that it was being done incorrectly and she feared that she would be killed. She demanded that the abortionist stop and that she be allowed to leave Aware Woman and enter another reproductive health service facility for emergency treatment. Instead of allowing Plaintiff to leave Aware Woman, the abortionist Egherman and four employees brutally held her down. Defendant Egherman proceeded to slash at her internal organs and the unborn child. Plaintiff kept screaming and was finally released and allowed to exit the Aware Woman facility and to enter a hospital for emergency surgery and removal of the now dead unborn child. Plaintiff has filed a civil action under 18 U.S.C. § 248 (F.A.C.E.). The Motion To Dismiss alleges a failure to state a cause of action.

RESPONSE

2. The standard of review on a motion to dismiss is stated in White v. Highway Patrol, 928 F.Sup. 1153 [M.D.Fla. 1996]:

On a motion to dismiss, a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that a Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in a light most favorable to the Plaintiff. Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir. 1991).

3. The elements of the F.A.C.E. statute present in the Complaint are as follows:

a) in a facility that provides reproductive health services,

b) force and physical obstruction were used against a person seeking to obtain such services,

c) rendering egress from such a facility unreasonably difficult or hazardous.

4. Sufficiency of the Complaint is thus assured because of the allegations showing that Jane Roe, II was in a reproductive health service facility where she was seeking an abortion and was physically pinned down by four employees to keep her from leaving that facility and entering another one where she could receive additional reproductive health services necessary to save her life and remove the unborn child from her womb who had been killed at Aware Woman.

5. The case of U.S. v. Dinwiddie, 76F.3d913 (8^th Cir. 1996) states:

Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions, page 923.

A reading of Jane Roe, II's Complaint reveals that the Defendants brutally and violently interfered with her ability to obtain an abortion. F.A.C.E. specifically prohibits such sickening violence toward women:

The Access Act proscribes intentional injury, intimidation or interference, but only if the same is committed "by force, threat of force or physical obstruction."... The activity proscribed by the broadest terms of the statute is "intimidation" caused by "threat of force."... The term "physical obstruction" is defined to mean: "rendering impassable ingress to or egress from a facility that provides reproductive health services...or rendering passage to or from such a facility ..., unreasonably difficult or hazardous". Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) at page 1521. emphasis added.

6. Thus, the Complaint filed by Jane Roe, II passes the test for sufficiency as stated in the White case, supra. Additionally, F.A.C.E. contains no requirement for any allegation of discrimination.

7. (A copy of one of several discovery pleadings is attached hereto as 'Exhibit A' solely for the purpose of showing that the representation by opposing counsel includes Defendant Aware Woman Center For Choice, Inc.)

WHEREFORE, the Motion To Dismiss of August 3, 1999 should be denied.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was furnished to Richard E. Ramsey, Esquire, Post Office Box 2753, Orlando, Florida 32802-2753 and Andrew W. Menyhart, Esquire, Post Office Box 541760, Merritt Island, Florida 32954-1760 by U. S. Mail this 18^th day of August, 1999.

Christopher F. Sapp <signed>
Attorney

EXHIBIT "A"

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

NOTICE OF INTENT

JANE ROE, II
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants

PURSUANT to Rule 45(C)(D), Fed. R. Civ. P., the undersigned attorneys shall request records from the following non-party entity, as specified in the attached Subpoena:

Holmes Regional Medical Center
1350 South Hickory Street
Melbourne, FL 32901

WE HEREBY CERTIFY that a true copy of the foregoing was mailed August 16, 1999, to Christopher F. Sapp, Esquire, Post Office Box 1012, Lehigh Acres, FL 33970.

WICKER, SMITH, TUTAN, O'HARA, McCOY, GRAHAM & FORD, P.A. Attorneys for DR. EGHERMAN & AWARE WOMAN CENTER
Post Office Box 2753
Orlando, FL 32802-2753
Phone: 407.843.3939
Fax: 407.649.8118
RICHARD E. RAMSEY <signed>
Florida Bar. 0715026