ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA.
ORLANDO DIVISION
CASE NO. 6:99-CV-850-ORL-19A

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

ORDER

This cause comes before the Court on the following matters:

1) Defendant William P. Egherman, M.D.'s Motion to Dismiss (Doc. No. 8, filed August 3, 1999); Defendant William P. Egherman, M.D.'s Memorandum of Law in Support of Motion to Dismiss (Doc. No. 9, filed August 3, 1999); Plaintiff, Jane Roe, II's Response to Defendant William P. Egherman, M.D.'s Motion to Dismiss (Doc. No. 17, filed August 23, 1999);

2) Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., Patricia B. Windle, and William P. Egherman, M.D.'s Motion to Dismiss Complaint (Doc. No. 12, filed August 16, 1999); Defendants' Memorandum of Law in Support of Motion to Dismiss Complaint (Doc. No. 13, filed August 16, 1999); Plaintiff, Jane Roe, II's Response to Defendants' Motion to Dismiss Complaint (Doc. No. 19, filed September 7, 1999);

3) Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., Patricia B. Windle, and William P. Egherman, M.D.'s Motion to Strike (Doc. No. 14, filed August 16, 1999); Defendants' Memorandum of Law in support of Motion to Strike (Doc. No. 15, filed August 16, 1999); Plaintiff, Jane Roe, II's Response to Defendants' Motion to Strike (Doc. No. 18, filed September 7, 1999);

4) Plaintiff, Jane Roe, II's Motion to Proceed Anonymously Together with Supporting Memorandum (Doc. No. 24, filed November 12, 1999); Defendant William P. Egherman, M.D.'s Memorandum of Law in Opposition to Plaintiff's Motion to Proceed Anonymously (Doc. No. 26, filed December 1, 1999); and Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., and Patricia B. Windle's Memorandum of Law in Opposition to Plaintiff's Motion to Proceed Anonymously (Doc. No. 25, filed November 22, 1999).

I. BACKGROUND

On March 29, 1997, Plaintiff went to Aware Woman Center for Choice, Inc. (the "Center") to obtain an abortion.[1] See Doc. No. 1. During the procedure Plaintiff experienced severe pain and made repeated requests that the Aware employees call an ambulance "to take her to the emergency room at the local hospital."[2] Id. at śś 17, 20. Plaintiff alleges that, before the ambulance arrived, the Defendants held her down, preventing her from leaving the Center. See id. Plaintiff concludes that Defendants' actions during the abortion amount to a violation of the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 ("FACE"). Id.

All four Defendants, William P. Egherman, M.D., Aware Woman Center for Choice, Inc. ("Aware"), Edward W. Windle, Jr., and Patricia B. Windle, have moved to dismiss Plaintiff's complaint. The Defendants contend that Plaintiff has not and cannot allege a violation of FACE based on the events of March 29, 1997. In addition, Defendants object to Plaintiff bringing her claim anonymously.

II. LEGAL STANDARD

For purposes of a motion to dismiss, this Court must view the allegations of the complaint in the light most favorable to the plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) . Furthermore, this Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. See Fed. R. Civ. P. 10(c); GSW, Inc. v. Lonq County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993}. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994) .

Conclusory allegations and unwarranted factual deductions are not accepted as true. Gersten v. Rundle, 833 F. Supp. 906, 910 (S.D. Fla. 1993) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). "However, when on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate." See Executive 100, Inc. v. Martin .County, 922 F.2d 1536 (11th Cir. 1991) .

III. ANALYSIS

The Defendants argue that Plaintiff's complaint should be dismissed because it "falls outside the plain language and construction of [FACE] and therefore, Plaintiff is not entitled to pursue a civil remedy under the Act." Doc. No. 12, at śś 4 & 5; see also (Doc. No. 8, at śś 4 & 5) (citing Cheffer v. Reno, 55 F.3d 1517, 1519 n.2 (11th Cir. 1995)). Defendants also contend that Plaintiff's complaint must be dismissed because it fails to allege that Plaintiff "was seeking to obtain reproductive service and was prevented from doing so by some person . . . . [nor does it allege] in any respect that any person or group prevented her from obtaining reproductive health services." (Doc. No. 9, at 4 & 2)(emphasis provided)[3]

In order to determine whether the Plaintiff has successfully alleged an action under FACE, the Court must first set forth the elements of a FACE claim. To discern the elements of this relatively new cause of action, the Court will look to the text of the statute, i.e. legislative history, and relevant case law.[4]

A. FACE

FACE provides in relevant part:

(a) Prohibited activities.--Whoever -

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;

. . .

shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c) . . .

The scope of the cause of action provided under subsection (c)[5] is clarified by the following definitions:

(1) Facility. -- The term "facility" includes a hospital, clinic, physician's office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located.

(2) Interfere with. -- The term "interfere with" means to restrict a person's freedom of movement.

(3) Intimidate. -- The term "intimidate" means to place a person in reasonable apprehension of bodily harm to him -- or herself or to another.

(4) Physical obstruction.--The term "physical obstruction" means 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.

(5) Reproductive health services. -- The term "reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.

18 U.S.C. § 248(e).

Congress set forth its stated purpose in enacting FACE as follows:

Pursuant to the affirmative power of Congress to enact this legislation under section 8 of article I of the Constitution, as well as under section 5 of the fourteenth amendment to the Constitution, it is the purpose of this Act [enacting this section and provisions set out as notes under this section] to protect and promote the public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services."

Section 2 of Pub. L. 103-259 (Congressional Statement of Purpose).

B. Elements

Although FACE is a relatively new statute and courts are just beginning to enunciate the elements of a civil action under the statute, at least three of the elements are well-settled.[6] See United States v. Wilson, 2 F.Supp.2d 1170, 1171 (E.D. Wisc. 1998). The first element is the defendant's act: the defendant must physically obstruct or attempt to obstruct a person's access to "a reproductive health facility." Id. The second element is the defendant's intent: the defendant must intend to "interfere with or [intend to] attempt[] to interfere with persons attempting to gain entrance or egress to [a facility]." Id. The third element is motive which requires that "the defendant's intentional interference with persons entering or exiting the clinic was done for the express purpose of preventing such persons from obtaining . . . reproductive health services." Id. (emphasis added).

The Wilson court noted that the motive element is crucial to a cause of action under FACE, and it "makes the FACE law unique in that most crimes require only the proof of an act and an intent to so act. In contrast, FACE not only requires proof of the act and the intent, but also the requisite reason or motive for the intended action; here, to prevent the receipt or provision of reproductive health services." Id. at 1171-72.

The legislative history states that "FACE's motive requirement accomplishes . . . the perfectly constitutional task of filtering out conduct that Congress believes need not be covered by a federal statute." See H.R.Rep. No. 306, at 12; S.Rep. No. 117, at 24; see also Council for Life Coalition v. Reno, 856 F.Supp. 1422, 1427-28 (S.D. Cal. 1994) (holding that the inclusion of a motive element in an action under FACE does not violate the First Amendment). FACE's motive requirement targets specified conduct "while ensuring that FACE does not federalize a slew of random crimes that might occur in the vicinity of an abortion clinic." See United Stated v. DinWiddie, 76 F.3d 913, 922-23 (8th Cir.) (holding that motive is an element of a FACE violation and comparing such motive requirement with the motive requirement imposed in Title VII causes of action) (emphasis added), cert. denied Dinwiddie v. United States, 519 U.S. 1043 (1996). Thus, it is clear that the motive requirement ensures that FACE will only be invoked to remedy "force, threats of force and physical obstruction . . . when such acts are intended to interfere with the right to obtain or provide reproductive health services." See United States v. Scott, 958 F.Supp. 761, 775 (D. Conn. 1997)(holding that the motive element does not render FACE a content-based restriction on speech).

C. The Complaint

Plaintiff's allegation that Defendants prevented her egress from the Center, during the middle of an abortion procedure is insufficient to state a claim under FACE because it fails to allege the requisite motive. Specifically, Plaintiff states that "Defendants violated [FACE] by preventing the egress of Plaintiff from [the Clinic] on March 29, 1997 when Defendants, and/or their employees, did unlawfully 'interfere with' [as defined by 18 U.S.C. § 248(e) (2)], 'intimidate' [as defined by 18 U.S.C. § 248(e)(3)], and use 'physical obstruction' [as defined by 18 U.S,C. § 248(e) (4)] to restrain Plaintiff and render impassable her desired egress from [the Clinic]." (Doc. No. 1 at ś 22).

Although Plaintiff has set forth facts which, viewed in the light most favorable to Plaintiff, may establish that Defendants prevented her egress from the Center; Plaintiff has failed to allege any fact which suggests that the Defendants prevented her egress in order to prevent Plaintiff from obsaining reproductive health services. The facts currently set forth by Plaintiff clearly fall into the slew of "random acts" which Congress did not intend to make subject to a federal statute. See DinWiddie, 76 F.3d at 922-23. Absent some allegation that the Defendants acted with the requisite intent and motive, Plaintiff's claim must fail.

IV. ANONYMITY

Plaintiff has moved to proceed anonymously in pursuing her FACE claim against Defendants. See (Doc. No. 24). Because Plaintiff is given leave to amend her Complaint to state a cause of action, the Court will consider Plaintiff's motion to proceed anonymously. Plaintiff argues that she is entitled to proceed anonymously because this is "an unusual situation in which the violence and abuse inflicted on the Plaintiff should be revealed to the public but the danger of harm to the Plaintiff and the sensitive and personal nature of the wrong require that her identity should not be disclosed publicly." Id. at ś 4.[7]

Federal Rule of Civil Procedure 10(a) requires that the title of a Complaint "include the names of all the parties." The requirement that parties identify themselves when bringing an action in federal court is not lightly discarded because it is grounded in part on the constitutional concerns regarding the openness of judicial proceedings. Nonetheless, a party may proceed anonymously if the need for anonymity is sufficiently strong. See Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992). For instance, a plaintiff may proceed anonymously where the plaintiff is in real danger of physical harm or where matters to be revealed during the case are of the "utmost intimacy." See Id. at 324.

The Court does not find that the "presumption of openness in judicial proceedings" is outweighed by a substantial privacy right in this case. See Id. at 323. The decision to obtain an abortion and the facts surrounding an abortion would certainly be considered a private matter to anyone faced with such a decision. Nonetheless, absent some additional circumstances necessitating anonymity, the privacy surrounding an abortion procedure cannot be preserved in the face of the public's interest in open judicial proceedings and the defendant's right to know the plaintiff's identity. Plaintiff has provided no factual support for her assertion that she faces "additional harm" from Defendants were they to discover Plaintiff's identity. See (Doc. No. 24) .

V. CONCLUSION

For the foregoing reasons, the Court RULES:

1) Defendant William P. Egherman, M.D.'s Motion to Dismiss (Doc. No. 8, filed August 3, 1999) is GRANTED.

2) Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., Patticia B. windle, and William P. Egherman, M.D.'s Motion to Dismiss Complaint (Doc. No. 12, filed August 16, 1999) is GRANTED.

3) Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr., Patticia B. Windle, and William Egherman, M.D.'s Motion to Strike (Doc. No. 14, filed August 16, 1999) is DENIED as MOOT.[8]

4) Plaintiff, Jane Roe, II's Motion to Proceed Anonymously (Doc. No. 24, filed November 12, 1999) is DENIED.

Plaintiff's Complaint (Doc. No. 1) is DISMISSED WITHOUT PREJUDICE. The Plaintiff shall have ten days from the date of this Order to file an Amended Complaint. Failure to timely file an Amended Complaint or the filing of an Amended Complaint that does not comply with the requirements of Federal Rule of Civil Procedure 10(a) will result in dismissal of the Complaint without further notice from the Court.

DONE AND ORDERED at Orlando, Florida, this 3rd day of January, 2000.

PATRICIA C. FAWSETT (signed)
UNITED STATES DISTRICT JUDGE

Copies to: All Counsel of Record

FOOTNOTES

[1] An abortion, performed "in a facility" is considered a "reproductive health service" under FACE. See 18 U.S.C. § 248(e)(5)

[2] The emergency room of a local hospital would fall under the definition of a "facility." See 18 U.S.C. § 248(e) (1).

[3] Plaintiff need not allege that she was actually prevented from obtaining reproductive health services in order to allege a cause of action under FACE. FACE plainly covers mere attempts to prevent persons from obtaining reproductive health services. See 18 U.S.C. § 248(a).

[4] The Court looks to cases which have applied FACE in a criminal and civil context because "[t]here is no indication in the statute that the elements of the prohibited activity" should differ. See 18 U.S.C. § 248; Greenhut v. Hand, 996 F.Supp. 372, 378, n.4 (D.N.J. 1998).

[5] Subsection (c) provides in relevant part:

(A) In general.--Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action for the relief set forth in subparagraph (B), except that such an action may be brought under subsection (a) (1) only by a person involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services.

(B) Relief.-- In any action under subparagraph (A), the court may award appropriate relief, including temporary, preliminary or permanent injunctive relief and compensatory and punitive damages, as well as the costs of suit and reasonable fees for attorneys and expert witnesses. With respect to compensatory damages, the plaintiff may elect, at any time prior to the rendering of final judgment, to recover, in lieu of actual damages, an award of statutory damages in the amount of $5,000 per violation.

18 U.S.C § 248 (c) (1) .

[6] Immediately after FACE was enacted, it was subjected to a flurry of challenges on various constitutional grounds. The courts faced with these cases reviewed the legislative history and text of the statute in great detail and opined on FACE's purpose and scope. See e.q., United States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, Hatch v. United States, 519 U.S. 1006 (1996); United States v. DinWiddie, 76 F.3d 913 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995), cert denied, 519 U.S. 806 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); see also, United States v. Gregg, 32 F.Supp.2d 151 (D.N.J. 1998); United States v. Scott, 958 F.Supp, 761 (D.Conn. 1997); United States v. Hill, 893 F.Supp. 1034 (N.D. Fla. 1994).

[7] The Court rejects Plaintiff's contention that she is entitled to proceed anonymously under Florida statutory law. See (Doc. No. 24, at ś 5) (citing Florida Statute § 794.026 which protects the identity of sexual battery victims). The Court also finds that Plaintiff is not entitled to invoke the physician-patient privilege to prevent disclosure of her name in this suit against her physician. See id. at ś 9. Finally, the Court notes that there is no support for Plaintiff's contention that Defendants have waived their right to object to Plaintiff's anonymity. (Doc. No. 24, at ś 2).

[8] Although the Court does not reach the merits of Defendants' Motion to Strike, the Court does caution the Plaintiff to conform with the Federal Rule of Civil Procedure requiring complaints to contain a short and plain statement of the claim. See Fed. R. Civ. P. 8(a)(2).