DEFENDANT EGHERMAN'S MEMO SUPPORTING MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANT EGHERMAN'S MEMO SUPPORTING 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., MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DISMISS

The Defendant, WILLIAM P EGHERMAN, M.D., by and through his undersigned counsel and pursuant to Local Rule 3.01(a), hereby provides this his Memorandum of Law in support of his motion to dismiss.

I. PLAINTIFF'S COMPLAINT FAILS TO STATE A CAUSE OF ACTION UNDER THE FACE STATUTE, 18 U.S.C. 248

Plaintiff's complaint, although interesting factually, fails to state a cause of action under the FACE statute, 18 U.S.C. 248, and must be dismissed as a matter of law pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In particular, the Freedom of Access to Clinic Entrances statute was enacted in 1994 as an effort to chill abortion demonstrations. The statute prevents acts that are designed to interfere with the right to obtain or provide reproductive health services. Cheffer v. Reno, 55 F.3d 1517, 1519 n.2 (11th Cir. 1995).

In the instant complaint, Plaintiff does not allege nor even hint that any individuals or groups prevented her from obtaining reproductive health services. To the contrary, Plaintiff alleges that during her third abortion procedure, medical complications occurred which resulted in a perforated uterus and colon. Plaintiff further alleges that when she wanted to leave the abortion facility as a result of these medical complications, she claims that she was held there against her will. Plaintiff does not allege in any respect that any person or group prevented her from obtaining reproductive health services. The failure of the Plaintiff to allege such a fact -- and it would be impossible to allege such a fact under this case scenario -- mandates that Plaintiffs case be dismissed.(1)

In particular, both the United States House and Senate found that a uniform federal law was necessary to combat the problem of antiabortion activities involving blockades, violence and a threat of violence. The reason for this uniform federal law was because there was a "...patchwork of state and local laws that were inherently inadequate to address what is a nationwide interstate phenomenon." See U.S. v. Hill, 893 F. Supp. 1034, 1037 (N.D. Fla. 1994).

The language of the statute, although not written in extreme clarity, makes it clear that the obvious purpose behind the statute is to prevent individuals from interfering with woman's right to obtain reproductive health services. In particular, the pertinent portions of the statute read as follows:

(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 civil remedies portion of the statute indicates that this cause of action can only be brought "... 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." See 18 U.S.C. 248 (c)(1)(A). (Emphasis added).

Plaintiff does not allege that any person, by use of physical obstruction, intimidation or other interference, prevented her from providing or obtaining reproductive health services, To the contrary, Plaintiff simply alleges that she had actually received these services and wanted to leave the building. Assuming that that is true, Plaintiff does not have a cause of action under FACE.

The literal language of the statute prohibits conduct that would seek to stop a person from obtaining or providing reproductive health services. See U.S. v. Hill at 1038, Plaintiff's factual scenario as outlined in her complaint does not even come close to meeting these parameters.

The statement of the purpose of the statute accompanying it states that the Act provides penalties "... 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. Ibid. (Emphasis added).

There is no doubt that Plaintiff's complaint does not allege that she was seeking to obtain or provide reproductive health services and was prevented from doing so by some person.

Congress enacted FACE to prohibit conduct that interferes with the ability of a woman to obtain abortions. U.S. v. Dinwiddie, 76 F.3d 913, 923 (8th Cir. 1996). As such, Plaintiff cannot maintain a cause of action against this Defendant for a violation of FACE. Such a cause of action must be dismissed pursuant to the provisions of Rule 12(b)(6).

Plaintiff's complaint also makes vague references to the fact that this is a civil rights action being brought under the jurisdictional auspices of 28 U.S.C. 1331 and 1343. However, there is nothing about the FACE statute that implies that it could be extended to be classified as a civil rights action against the Defendant under the factual circumstances of this case.

In particular, Plaintiff does not allege, nor could she allege, that the Defendant somehow discriminated against her or treated her unfairly based upon her sex, race, disability status or religion. Moreover, Plaintiff does not allege that this private individual in any way restricted or deprived her of any constitutional rights.

It is well established under Florida law that "... in a civil rights action, more than mere conclusory allegations are required. A complaint will be dismissed where the allegations are vague and conclusory." See White v. FHP, 928 F.Supp 1153, 1156 (M.D. Fla. 1996); Carter v. Thomson, 808 F.Supp. 1548, 1553 (M.D. Fla. 1992).

As such, Plaintiff has likewise failed to state a cause of action for any purported civil rights violations. It is unclear how Plaintiff could ever allege a civil rights violation against this individual defendant physician for the factual circumstances as set forth in her complaint. Putting that issue aside, Plaintiff cannot maintain a cause of action against the Defendant for a violation of FACE based on the factual scenario as set forth in her complaint.

For the foregoing reasons, the Defendant respectfully request the Court to issue an order granting his 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

(Footnote 1) Importantly, it must be noted that Plaintiff's potential cause of action for medical malpractice became a nullity as Plaintiff missed the two year statute of limitations. This fact likely explains the misplaced reliance on the FACE statute.