DEFENDANT EGHERMAN'S MOTION TO DISMISS

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

UNITED STATES DISTRICT COURT
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.

DEFENDANT'S, WILLIAM P. EGHERMAN, M.D., MOTION TO DISMISS

The Defendant, WILLIAM P. EGHERMAN, M.D., by and through his undersigned counsel and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, hereby applies to the Court for an order dismissing the Complaint against him and in support thereof, states as follows:

1. Plaintiff's complaint attempts to state a cause of action against the defendant physician for a statutory violation of the Freedom of Access to Clinic Entrances statute, 18 U.S.C. 248 ("FACE"). Plaintiff's reliance upon the statute to set forth such a cause of action is completely misplaced, in error and merits a dismissal of the cause of action.

2. In particular, Plaintiff' s complaint sets forth various factual allegations indicating that on or about March 29, 1997, the Plaintiff voluntarily went to the Aware Woman's Center for Choice to undergo an elective abortion. Plaintiff alleges that this was her third abortion at the facility. Plaintiff contends that during the surgical procedure, certain medical complications occurred which resulted in a perforated uterus and colon. The Plaintiff alleges that she attempted to leave the abortion center yet was supposedly held clown by the Defendant and others against her will and that such conduct caused her bruises.

3. As a result of the Defendant's alleged misconduct, the Plaintiff contends that she is entitled compensatory and punitive damages as well as attorney's fees under the provisions of FACE, 18 U.S.C. 248. A review of the statute and the associated case law interpreting the statute clearly reveals that Plaintiff has misapplied the provisions of the stature and that her cause of action fails as a matter of law.

4. In particular, the Freedom of Access to Clinic Entrances Act was enacted in 1994 in art effort to chill abortion demonstrations, The purpose of the statute was to prevent acts that were designed to interfere with the right to obtain or provide reproductive health services. The statute allows for criminal or civil actions against those who seek to prevent or interfere with the ability of a woman to obtain such services.

5. To the contrary, Plaintiff alleges that this statute is to act as a sword for her and provide her damages for alleged physical injuries incurred when she was voluntarily a patient of the facility and supposedly received injuries at the hands of the individuals working in the Center. Both the clear application of the statute and existing case law indicates that such a cause of action cannot be maintained under the provisions of the FACE statute.

6. In addition, Plaintiff makes vague and conclusory allegations, without any factual or even legal support, that she is entitled to maintain a civil rights cause of action as well.

Again, Plaintiff has not maintained or alleged any factual allegations that would indicate that she is entitled to bring a civil rights cause of action against this private physician. Plaintiff does not allege that this physician in some way discriminated against her based on her sex, race, disability status or religion, nor that he violated any constitutional right of hers.

For the foregoing reasons, the Defendant respectfully requests the Court to issue an order granting this motion to dismiss.

WE HEREBY CERTIFY that a true copy of the foregoing was mailed August 3, 1999 to: Christopher F. Sapp, Esquire, Post Office Box 1012, Lehigh Acres, Florida 33970.

WICKER, SMITH, TUTAN, O'HARA, McCOY, GRAHAM & FORD, P.A.,
Attorneys for DR. EGHERMAN
Post Office Box 2753
Orlando, Florida 32802-2753
407.843.3939
407.649-8118 fax
RICHARD E. RAMSEY <signed>
Florida Bar No. 0715026