PRINCIPAL BRIEF OF APPELLANT, JANE ROE, II

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PRINCIPAL BRIEF OF APPELLANT, JANE ROE, II

Appeal No. 00-10231-DD

In The UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

JANE ROE, II
Appellant,

vs.

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., PATRICIA B. WINDLE, and
WILLIAM P. EGHERMAN, M. D.
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
NUMBER 99-00850-ORL-19A

PRINCIPAL BRIEF OF APPELLANT,
JANE ROE, II

CHRISTOPHER F. SAPP
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

AMENDED CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Adams, Henry Lee, Jr., U.S. District Judge presiding in Sienkiewicz v. Hart.[6]

Allstate Floridian Insurance Company, Plaintiff in Allstate v. Raney.[1]

Allstate Insurance Company, Plaintiff in Allstate v. Raney.[1]

Aware Woman Center for Choice, Inc., Appellee/Defendant in this case and in Raney v. Aware Woman;[4] also, Plaintiff in Aware Woman v. Raney,[7] along with other Plaintiffs with fictitious names, proceeding anonymously, and Defendant in Allstate v. Raney[1] and also a Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Babyack, Jill , Manager of Ft. Myers Women's Health Center, Inc., Defendant in Sienkiewicz v. Hart.[6]

Branin, Sharon, Individually and on behalf of the classes of patients, staff, physicians, invitees, guests, and independent contractors of Manhattan Magnolia Corp., Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Clinton, William J., President of the United States and Defendant in Sienkiewicz v. Hart.[6]

Compuserve, Incorporated, a corporation doing business in Florida, A Defendant in Manhattan Magnolia Corp. v. Unterburger .[9]

Coar, David H., U.S. District Judge presiding in N.O.W. v. Scheidler.[2]

Dean, Horace "Ed", Sheriff-Marion County, Defendant in Ocala Women's Center, Inc. v. City of Ocala.[8]

Deen, Morrey, Chief of Police of City of Ocala and a Defendant in Ocala Women's Center, Inc. v. City of Ocala.[8]

Delaware Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler.[2]

Doe Corporations 1-X, their agents, assigns, collaborators, accomplices, confederates, aiders & abbettors, successors in interest, those acting in concert or participating with them, and the class of individuals and entities similarly situated as to the named defendants, Defendants in Manhattan Magnolia Corp. v. Unterburger.[9]

Doe, Jane & Moes 1-X, Defendants in Manhattan Magnolia Corp. v. Unterburger.[9]

Doe, John & Moes 1-X, Defendants in Manhattan Magnolia Corp. v. Unterburger.[9]

Does, Jane 1-X, Defendants in Ocala's Women's Center, Inc. v. City of Ocala.[8]

Does, John 1-X, Defendants in Ocala's Women's Center, Inc. v. City of Ocala.[8]

Doyle, Conal, Attorney for Sheriff of Lee County, Defendant in Smith v. McDougall.[5]

Egherman, William P., M.D. Appellee/Defendant in this case; potential member of Plaintiff Class in Aware Woman v. Raney,[7] together with other Plaintiffs who are proceeding anonymously, and Defendant in Allstate v. Raney.[1]

England, Susan, Attorney for Defendants in Raney v. Aware Woman.[4]

Ergle, Ken, Former sheriff of Marion County and a Defendant in Ocala Women's Center, Inc. v. City of Ocala.[8]

Falvey, Carol A., Attorney for Horace "Ed" Dean, Sheriff of Marion County, in Ocala Women's Center, Inc. v. City of Ocala.[8]

Fawsett, Patricia C., U.S. District Judge, Middle District of Florida, presiding in this case and in Raney v City of Melbourne[3] and also Raney v. Aware Woman Center For Choice, Inc.[4]

Fort Myers Women's Health Center, Inc , Defendant in Sienkiewicz v. Hart.[6]

Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Law firm of Conal Doyle.

Frese, Nash & Torpy, P.A., Law firm of Vincent G. Torpy, Jr. and Lisa Hogreve.

Gilligan, Patrick G., Attorney for City of Ocala and Morrey Dean, Chief of Police of the City of Ocala, in Ocala Women's Center, Inc. v. City of Ocala.[8]

Hart, Larry, Police Chief of Fort Myers, Florida and Defendant in Sienkiewicz v. Hart.[6]

Herzog, Michelle, A Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Hirsh & Heuser, Law firm of Michael R. Hirsh.

Hirsh, Michael R., Attorney for Plaintiff in Raney v. Aware Woman.[4]

Hodges, William Terrell, U.S. District Judge, Middle District of Florida presiding in Ocala Women's Center, Inc. v. City of Ocala.[8]

Hogreve, Lisa, Attorney for Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]

Hurley, Daniel T.K., U.S. District Court Judge, Southern District of Florida, presiding in Manhattan Magnolia Corp. v. Unterburger.[9]

Jolly, John W., Jr., Attorney for Ken Ergle, former Sheriff of Marion County, in Ocala Women's Center, Inc. v. City of Ocala.[8]

LaVigna, Wendy, Defendant in Allstate v. Raney and Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

LeStourgeon, William, Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Lucas, Roy , Attorney for Appellees/Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]; for Plaintiffs in Aware Woman v. Raney[7], and all Defendants other than Meredith T. Raney, Jr in Allstate v. Raney[1], also attorney for Plaintiffs in Ocala Women's Center, Inc. v. City of Ocala[8] and attorney for Manhattan Magnolia Corp. et al. in Manhattan Magnolia Corp. v. Unterburger.[9]

McEwen, Patricia, A Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Marion, County of, A Defendant in Ocala Women's Center, Inc. v. City of Ocala.[8]

Manhattan Magnolia Corp., A Florida corporation, t/a Aware Woman Medical Center, Defendant in Allstate v. Raney[1] and Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Marino, John P., Attorney for TML Services, Inc. in Manhattan Magnolia Corp. v. Unterburger.[9]

Martin, James Edward, Sr., A Defendant in Ocala Women's Center, Inc v. City of Ocala.[8]

Maxwell, George W., Florida Circuit Judge presiding in Allstate v. Raney.[1]

Menyhart, Andrew, Attorney for Appellees/Defendants Aware Woman Center For Choice, Inc., Patricia B. Windle and Edward W. Windle, Jr. in this case and all Defendants other than Meredith T. Raney, Jr. in Allstate v. Raney.[1]

Moritz, Ellen, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Murphy, Timothy , Defendant in N.O.W. v. Scheidler[2]

National Organization of Women (N.O.W.), Plaintiff in N.O.W. v. Scheidler.[2]

National Organization of Women (N.O.W.), Florida Chapter.

Nelson, Frederick, Attorney for Defendants, Raymond Unterburger, Cheryl Unterburger, Eric Olson, Meredith Raney, Patricia McEwen, William LeStourgeon, John "Jay" Rogers, Richard Vanderbilt, Patricia Vanderbilt and Michelle Herzog in Manhattan Magnolia Corp. v. Unterburger[9] and Defendant Meredith T. Raney, Jr. in Ocala Women's Center, Inc. v. City of Ocala.[8]

Nimmons, Ralph W., Jr., U.S. District Judge presiding in Smith v. McDougall.[5]

Ocala Women's Center, Inc., A Florida corporation and Plaintiff in Ocala Women's Center, Inc. v. City of Ocala.[8]

O'Connor & Meyers, P.A., Law firm of Lawrence M. Siff.

Olson, Eric, Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Operation Rescue, Defendant in N.O.W. v. Scheidler.[2]

Parker, Julius F., Jr., Attorney for John McDougall, individually, Defendant in Smith v. McDougall.[5]

Pendergraft, James S., M.D., Defendant and proposed class representative in Allstate v. Raney[1] also Plaintiff in Ocala Women's Center, Inc. v. City of Ocala.[8]

Pfau, Cheryl, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Poe, Don, Fictitious name of a Plaintiff in Aware Woman v. Raney[7] and Defendant in Allstate v. Raney.[1]

Poe, Grandfather, Fictitious name of a Plaintiff in Aware Woman v. Raney[7] and a Defendant in Allstate v. Raney.[1]

Poe, Jane, 1-M (1-1,000), Fictitious name of a proposed Defendant class in Allstate v. Raney.[1]

Poe, John, 1-M (1-1,000), Fictitious name of a proposed Defendant class in Allstate v. Raney.[1]

Poe, Tiffany, Fictitious name of a Plaintiff in Aware Woman v. Raney[7], who is proceeding anonymously as are the two previous Poes and Defendant in Allstate v. Raney.[1]

Pro-Life Action League, Inc., Defendant in N.O.W. v. Scheidler.[2]

Ramsey, Richard E., Attorney for William P. Egherman, M.D., Appellee/Defendant in this case.

Raney, Meredith T., Jr., Plaintiff in Raney v. City of Melbourne[3], Defendant in Allstate v. Raney[1], Appellant/Plaintiff in Raney v. Aware Woman Center For Choice, Inc.[4], Defendant in Manhattan Magnolia Corp. v. Unterburger[9] and Defendant in Ocala Women's Center, Inc. v. City of Ocala.[8]

Reno, Janet, Attorney General of the United States and Defendant in Sienkiewicz v. Hart.[6]

Richard & Richard, PA, Local counsel for Manhattan Magnolia Corp. et al. in Manhattan Magnolia Corp. v. Unterburger.[9]

Roe, Jane, II, Fictitious name of Appellant/Plaintiff in this case.

Rogers, John C. "Jay", Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Rost, Scott, Attorney for Plaintiffs in Ocala Women's Center Inc. v. City of Ocala.[8]

Rowe, Scott P., Attorney for Plaintiff in Allstate v. Raney.[1]

Rumberger, Kirk & Caldwell P.A., Law firm of Scott P. Rowe and David B. Shelton.

Sapp, Christopher F., Attorney for Appellant/Plaintiff in this case; also for the Appellant/Plaintiff in Raney v. Aware Woman Center For Choice, Inc.[4]; also for Plaintiffs in Smith v. McDougall;[5] also for Plaintiff in Sienkiewicz v. Hart[6], also for Defendant Meredith T. Raney,Jr. in Allstate Insurance Company v. Raney[1] and Plaintiff in Raney v. City of Melbourne.[3]

Scheeler, Charles P., Attorney for Defendant CompuServe, Inc. in Manhattan Magnolia Corp. Center, Inc. v. Unterburger.[9]

Scheidler, Joseph M., Defendant in N.O.W. v. Scheidler.[2]

Scholberg, Andrew, Defendant in N.O.W. v. Scheidler.[2]

Sharp, G. Kendall, U.S. District Judge, Middle District of Florida, presiding Aware Woman v. Raney.[7]

Shelton David B., Attorney for Plaintiffs in Allstate v. Raney.[1]

Sienkiewicz, Ray, Plaintiff in Smith v. McDougall and in Sienkiewicz v. Hart.[6]

Siff, Lawrence M., Attorney for Sphere Drake Insurance Company PLC and Westco Claims Management Services, Inc., Third Party Defendants in Raney v. Aware Woman.[4]

Smith, Robert, Plaintiff in Smith v. McDougall.[5]

Sphere Drake Insurance Company, PLC, Third Party Defendant in Raney v. Aware Woman.[4]

Staver, Mathew D., Attorney for Defendant Edward Martin in Ocala Women's Center Inc. v. City of Ocala.[8]

Stevens and Menyhart, P.A., Law firm of Andrew Menyhart.

Stevens, Sheldon D., Former Defense attorney in this case.

Summit Women's Health Organization, Inc., Plaintiff in N.O.W. v. Scheidler.[2]

TML Information Services, Inc, Corporate Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Torpy, Vincent G., Florida Circuit Judge and Attorney for Defendants in Raney v. Aware Woman Center For Choice, Inc.[4]

Unterburger, Cheryl, Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Unterburger, Raymond, Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Vanderbilt, Patricia, a Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Vanderbilt, Richard, a Defendant in Manhattan Magnolia Corp. v. Unterburger.[9]

Westco Claims Management Services, Inc., Third Party Defendant in Raney v. Aware Woman.[4]

Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Law firm of Richard E. Ramsey.

Wilson, Charles R., Judge - United States Court of Appeals, Eleventh Circuit, Defendant in Sienkiewicz v. Hart.[6]

Windle, Edward W., Jr., Appellee/Defendant in this case and Appellee/Defendant in Raney v. Aware Woman Center for Choice, Inc.[4]; also, Plaintiff in Aware Woman v. Raney[7], together with other Plaintiffs using fictitious names in order to proceed anonymously. Defendant in Allstate v. Raney.[1]

Windle, Edward W. (Todd), III, Defendant in Allstate v. Raney[1] and a Plaintiff in Manhattan Magnolia Corp. v. Unterburger.[9]

Windle, Patricia B., Appellee/Defendant in this case and Appellee/Defendant in Raney v. Aware Woman Center for Choice, Inc.[4]; also, Plaintiff in Aware Woman v. Raney[7], together with other Plaintiffs using fictitious names in order to proceed anonymously and Defendant in Allstate v. Raney.[1]

Wright, Virgil W., III, Attorney for Marion County in Ocala Women's Center, Inc. v. City of Ocala.[8]

NOTES OF RELATED CASES ON TRIAL LEVEL

[1] Allstate Insurance Company and Allstate Floridian Insurance Company vs. Meredith T. Raney, Jr., et al., Eighteenth Judicial Circuit for Brevard County, Florida, Case Number 99-25178 CAD: a declaratory action regarding home owner's insurance coverage.

[2] NATIONAL ORGANIZATION FOR WOMEN, INC., and its women members and other women who use or may use the services of women's health centers that provide abortions; DELAWARE WOMEN'S HEALTH ORGANIZATION, INC., and SUMMIT WOMEN'S HEALTH ORGANIZATION, INC., on behalf of themselves and all other similarly-situated clinics, v. JOSEPH M. SCHEIDLER; ANDREW SCHOLBERG; TIMOTHY MURPHY; PRO-LIFE ACTION LEAGUE, INC., and OPERATION RESCUE, U.S. District Court for the Northern District of Illinois, Eastern Division, Case Number 86 C 7888: national injunction which provides for pro-life sidewalk counselors helping women approaching the entrances of abortion clinics. (See para. V.4.c.)

[3] Meredith T. Raney, Jr. v. City of Melbourne, Florida, U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-416-Civ-Orl-19B: F.A.C.E. action for intimidation of sidewalk counselor at Aware Woman by the Melbourne City Police.

[4] Meredith T. Raney,Jr. v. Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle, U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 97-1197-CIV-ORL-19-B: F.A.C.E. action for intimidation of sidewalk counselor at Aware Woman Center For Choice, Inc. currently on appeal to this United States Court of Appeals, Appeal No.: 99-14122-I.

[5] Robert Smith and Ray Sienkiewicz v. John McDougall, individually and as Sheriff of Lee County, Florida, et al., U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 99-385-CIV-FTM-21: F.A.C.E. action against local sheriff whose violations of sidewalk counselors' rights was procured by federal officials.

[6] Ray Sienkiewicz v. Larry Hart, individually and as Chief of Police of Ft. Myers, Florida et al., U.S. District Court for the Middle District of Florida, Fort Myers Division, Case Number 2:00-CV-0057-FTM-25D. F.A.C.E. action against Chief of Police whose violations of sidewalk counselor's rights was procured by federal officials.

[7] AWARE WOMAN CENTER FOR CHOICE, INC., on its own behalf and for the class of patients, patient companions, staff, physicians, invitees, owners, and independent contractors, PATRICIA BAIRD WINDLE, EDWARD W. WINDLE, JR., TIFFANY POE, DON POE, GRANDFATHER POE, et al. v. MEREDITH T. RANEY, JR., et al. U.S. District Court for the Middle District of Florida, Orlando Division, Case Number 99-5-CV-ORL-19C. F.A.C.E. action brought by the staff and owners of the Aware Woman abortion clinic, including a patient and her relatives who are utilizing fictitious names to protect their privacy.

[8] OCALA WOMEN'S CENTER, INC., a Florida corporation, et al. v. CITY OF OCALA, FLORIDA, et al., U.S. District Court for the Middle District of Florida, Orlando Division, Case No.: 98-1358-CV-18C, transferred to Ocala Division, Case No.: 98-371-CIV-OC-10C. Injunction and class action relief sought by abortionist and his clinic against the City of Ocala and other government officials and pro-life persons.

[9] MANHATTAN MAGNOLIA CORP., a Florida corporation, t/a/ AWARE WOMAN MEDICAL CENTER; et al. v. RAYMOND UNTERBURGER, et al., U.S. District Court for the Southern District of Florida, Case No.: 98-8164-CIV- HURLEY. Various relief sought by abortion clinics and their owners and staff from several pro-life persons and other corporations and possible classes of individuals and corporations.

STATEMENT REGARDING ORAL ARGUMENT

Appellant hereby respectfully requests the opportunity to present oral argument on the issues raised in this appeal for the reasons that this case is critical to the protection of women seeking abortions from violence and brutality at the hands of abortionists and their helpers. It is essential to Jane Roe, II - and millions of vulnerable women - that she receive justice without total forfeiture of her privacy and reputation.

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TABLE OF CONTENTS
(Omitted from Internet version)

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TABLE OF CITATIONS

CITATION	PAGE
COHEN v. BENEFICIAL INDUSTRIAL LOAN CORP 337 U.S. at 546, 69 S.Ct., at 1225	4, 11
COKER v. GEORGIA, 97 S.Ct. 2861 (1977)	15
CONLEY v. GIBSON, 355 U.S. 41 , 78 S.Ct. 99 (1957)	11,17
MITCHELL v. FORSYTH, 105 S.Ct. 2806 (1985)	4, 11
THORNBURGH v. AMERICAN COLL. OF OBST., 106 S.Ct. 2169 (1986)	13, 14
DOE v. FRANK, 951 F.2d 320 (11th Cir. 1992)	13, 15
SOFARELLI v. PINELLAS COUNTY, 931 F.2d 718 (11th Cir.1991)	11
U.S. v. DINWIDDIE, 76 F.3d 913 (8th Cir. 1996)	16
FLORIDA CONSTITUTION, ARTICLE I, SECTION 23	15
FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT 18 U.S.C. §248 (F.A.C.E.)	4, 6, 8, 12 16, 17, 18
28 U.S.C. § 1331	4
28 U.S.C. § 1343(a)(4)	4
28 U.S.C. § 1391(b)	4
FLORIDA STATUTE § 794.011(1)(h)	15
FLORIDA STATUTE § 794.024 and §794.026	15

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STATEMENT OF JURISDICTION

Jane Roe, II brought the civil action in the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. §1391 (b) because the claim arose in the District and also because the Defendants reside in this District. The civil action seeks damages and other relief for violation of that Act of Congress known as Freedom of Access to Clinic Entrances Act (F.A.C.E.), 18 U.S.C. §248; thus the claim arises under the laws of the United States, according to 28 U.S.C. §1331. Additionally, original jurisdiction lies in the District Court under 28 U.S.C. §1343 (a)(4) as this is a civil action to recover damages under an Act of Congress providing for the protection of civil rights.

This appeal to the United States Court of Appeals is brought pursuant to the collateral appeal doctrine as reviewed in Mitchell v. Forsyth, 105 S.Ct. 2806 (1985), and first approved in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.1528 (1949) because the question of Plaintiff's right to anonymity must be determined by an interlocutory appeal and cannot wait on final adjudication.

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STATEMENT OF ISSUES

FIRST ISSUE: May a victim of sexual battery which occurred during a botched abortion sue the abortionist and the abortion clinic without revealing her name to the public?

SECOND ISSUE: Does the Complaint show the requisite intent required by F.A.C.E. where the Plaintiff was brutally and physically obstructed from receiving outside emergency assistance and transportation to a hospital emergency room because of a botched abortion at Defendants' clinic?

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STATEMENT OF THE CASE

NATURE OF THE CASE

Jane Roe, II sued William P. Egherman, M.D., and Aware Woman abortion clinic, its owners and operators for a violation of Freedom of Access to Clinic Entrances Act (F.A.C.E.) She was unlawfully and forcefully prevented from exiting the abortion clinic in Brevard County, Florida in her effort to avoid a brutal, life- threatening abortion at Aware Woman and was physically obstructed because she wanted to obtain other reproductive health services elsewhere.

The Plaintiff is using the fictitious name Jane Roe, II.

The Defendants , William P. Egherman, M.D., Aware Woman Center For Choice, Inc, Edward W. Windle, Jr. and Patricia B. Windle are jointly called "Aware Woman".

COURSE OF PROCEEDINGS

Jane Roe, II filed her Complaint in the Middle District of Florida, Orlando Division, against the abortionist, William Egherman, M.D. and the abortion clinic and its owners for their violation of the Freedom of Access to Clinic Entrances Act.. Doc. 1

All of the Defendants responded with motions to dismiss the Complaint. Doc 8 and Doc. 12.

Page 6

Later, at the Case Management meetings, Defendants objected to the Plaintiff proceeding anonymously. Doc.20.

As a result of this objection, a case management hearing was held by the Magistrate Judge who directed the plaintiff to file a motion to proceed anonymously. She complied with this instruction. Doc. 24.

The District Judge then entered an order dismissing the Complaint, with leave to file an amended complaint, and denied Plaintiff's Motion to Proceed Anonymously. Doc. 29. Notice of Appeal was then timely filed. Doc. 30.

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BACKGROUND

F.A.C.E. was passed by Congress to prevent, among other things, intimidation and threat of violence of women patients at abortion clinics.

While F.A.C.E.'s proponents were pro-abortion forces, the federal courts have consistently declared that F.A.C.E. is content-neutral and is enforceable regardless of viewpoint to those who would seek to intimidate women because they wanted to obtain an abortion.

This is the first known case where a woman was forcibly and brutally kept from leaving an abortion clinic in an effort to prevent her from getting help at another facility.

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STATEMENT OF THE FACTS

Jane Roe, II had come to Aware Woman abortion clinic in Melbourne, Florida several times for abortions. This abortion clinic was operated by Aware Woman Center For Choice, Inc. and was owned by Edward W. Windle, Jr. and Patricia B. Windle. The abortionist was William P. Egherman, M.D.

On March 29, 1997, Jane Roe, II came to the clinic for an elective abortion. After the usual preliminaries were out of the way, Jane Roe, II was lead to a waiting room where there were a number of pregnant women waiting for their abortions. Jane Roe, II soon realized that the abortions were proceeding far more rapidly than was usual.

As soon as the abortionist started the operation, Jane Roe, II knew that it was being done incorrectly. She told the abortionist that he was doing something wrong and she demanded that he stop; she demanded that an ambulance be called and that she be taken to an emergency room at the local hospital.

Instead of stopping the abortion, the abortionist instructed four assistants to hold Jane Roe, II down while she screamed for help. Against Jane Roe, II's consent, the abortionist inserted some kind of instrument into her vagina and apparently tried to force her to have the abortion. Jane Roe, II's uterus was perforated, her colon was lacerated and the unborn child was killed.

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When Jane Roe, II was finally taken by the ambulance crew from Aware Woman, she was transported to a local emergency room where the dead baby was removed from her uterus and surgery was done to repair her organs. She was in the hospital for several days and out of work for many weeks. Her suffering has been considerable. None of her bills have been paid.

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STANDARDS OF REVIEW

FIRST ISSUE: A major characteristic of the denial or granting of a claim appealable under Cohen's "collateral order" doctrine is that "unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all". Mitchell v. Forsyth, 105 S.Ct. 2806 (1985) at page 2814. Based on Cohen v. Beneficial Industrial Loan Corp., 337 U.S., at 546, 69 S.Ct., at 1225, where it states that an order such as the present one is appealable if it falls within "that small class which finally determines claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

SECOND ISSUE: 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 [her] 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).

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SUMMARY OF THE ARGUMENT

FIRST ISSUE: Jane Roe, II has shown that she is entitled to proceed anonymously because of the intensely intimate nature of this botched abortion- sexually battery. The atrocities committed by the Defendants and the nature of the medical treatment sought by Plaintiff, coupled with her constitutional rights to privacy overwhelm any right of the public to know her true identity.

SECOND ISSUE: Jane Roe, II has shown that the intent required by 18 U.S.C. §248 has been properly alleged because she has alleged that she was physically obstructed because she was seeking reproductive health services from the emergency personnel assigned to ambulances and also reproductive health services from the emergency room personnel at a local hospital. She has properly alleged that she was physically obstructed from exiting one F.A.C.E. facility and entering another F.A.C.E. facility. Thus the complaint should not have been dismissed.

In the event that the U.S. Court of Appeals disagrees with the Plaintiff on this issue, she will file an amended complaint seeking to comply with the mandate of this Court.

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ARGUMENT AND CITATIONS OF AUTHORITY

FIRST ISSUE: The District Judge erred when she denied Plaintiff her fundamental right to proceed anonymously in an abortion-rape case.

The District Judge has decided that the public and the Defendants have a right to know the real name of the Plaintiff.

Jane Roe, II used her real or given name when paying for an abortion on the day in question and has provided the fictitious name under which she was hidden by the local hospital: "Sheila Fitzgerald". At the Case Management hearing the Magistrate Judge asked defense counsel if they knew Jane Roe, II's real name and after they answered, she admonished them not to disclose Plaintiff's identity to the public. If Appellees' counsel need to be reminded of Jane Roe, II's true name, she will tell them again but it must not be disclosed to the public.

This Court has dealt with the public's right to know a Plaintiff's identity in Doe v. Frank, 951 F.2d 320 (11th Cir. 1992), ruling at page 323 that a Plaintiff has the right to conceal matters of utmost intimacy from the public and so can proceed anonymously to protect this substantial privacy right.

Here, Jane Roe, II had decided to have an abortion and had gone to Aware Woman for that purpose. Her identity should not be a matter of public record according to the United States Supreme Court. Thornburgh v. American Coll.

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Of Obst. 106 S.Ct. 2169 (1986).

At page 2181 of Thornburgh, supra, the Supreme Court stated:

The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity.- - - A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly.

Further on page 2182, the Supreme Court stated:

Pennsylvania's reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right and must be invalidated.

In summation, the Thornburgh, supra, Court reiterated:

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision - with the guidance of her physician and within the limits specified in Roe - whether to end her pregnancy. A woman's right to make that choice freely is fundamental. At page 2185.

Thus, the United States Supreme Court has decided that a woman's decision to have an abortion is of such intimacy that it should not be revealed to the public.

Rape is now a form of sexual battery in Florida. Index - Chapters 775 To

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896, Florida Statutes Annotated. What happened to Jane Roe, II became a sexual battery when the abortionist forced an instrument into her vagina after she insisted that he stop the abortion. Florida Statute §794.011(1)(h) defines "sexual battery" as the "vaginal penetration of another by any other object". There is an exception for an act done for a bona fide medical purpose. Jane Roe, II emphatically repudiated any claim Defendants might have to this exception.

It is the public policy of the State of Florida that the identity of sexual battery victims be kept confidential. Florida Statutes §794.024 and §794.026.

The United States Supreme Court in discussing the horrors visited upon a rape victim said:

It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self".
Coker v. Georgia, 97 S.Ct. 2861 (1977) at page 2869.

Just as Jane Roe, II meets the "utmost intimacy" test under Doe v. Frank, supra, on account of her involvement in an abortion, so, too, is she entitled simultaneously to anonymity on account of the sexual battery which she suffered.

Jane Roe, II also asserted her right to privacy under the Florida Constitution Article I, Section 23. Additionally, the Plaintiff has asserted her patient-physician

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confidentiality: She has done nothing wrong and should not forfeit her right to confidentiality because of the Defendants' wrongdoing.

For numerous reasons, the decision to deny anonymity was incorrect and should be reversed.

SECOND ISSUE: The District Court erred in dismissing the Complaint for the reason that the Complaint did not show an intent to prevent Jane Roe, II from receiving reproductive health services.

Jane Roe, II agrees that the intent to violate 18 U.S.C. §248 is a requisite element of a well-pled F.A.C.E. complaint. This necessity is clearly stated in U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996) where the Appellate Court ruled:

FACE's motive requirement does not discriminate against speech or conduct that expresses an abortion-related message. FACE would, for example, apply to anyone who blockades a clinic to prevent a woman from getting an abortion, even if the workers were carrying signs that said, "We are underpaid!" rather than "Abortion is wrong!" - - - Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions. At page 923.

The Complaint shows that the Defendants botched Jane Roe, II's abortion at the very beginning and that, as a consequence, she wanted Defendants to stop and put her in an ambulance so that she could receive reproductive health services elsewhere. Because Jane Roe, II wanted to obtain these services in another facility

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or facilities (ambulance and emergency room) she was physically prevented from exiting Aware Woman.

Whether the reasons for this barbaric treatment of Jane Roe, II stem from a perverse nature, from greed, from sadism, Plaintiff does not know. She does know that the express intent of the Defendants was to prevent her from exiting Aware Woman because she wanted to receive F.A.C.E.-protected services elsewhere.

Thus, Jane Roe, II's Complaint passes the United States Supreme Court's test set out in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957): it states facts on which relief under F.A.C.E. can be granted.

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CONCLUSION

The Order granting the Motion to Dismiss entered in this case should be set aside and the case be allowed to proceed to trial, where determination of liability and damages may be had for the violations of F.A.C.E. Plaintiff must be allowed to proceed anonymously.

Respectfully submitted,
Christopher F. Sapp (signed)
P. O. Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

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CERTIFICATE OF SERVICE: I HEREBY CERTIFY that true and correct copies of the foregoing have been furnished by U.S. Mail (overnight delivery), postage prepaid, sent this 28th day of February, 2000 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 and the original and six copies were dispatched to the Clerk this date by Federal Express (overnight delivery).

Christopher F. Sapp (signed)
Attorney

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