DEFENDANT'S MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
SMITH V MCDOUGALL
DOCKET / CHRONOLOGICAL FILE
DEFENDANT'S MOTION TO DISMISS

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CASE NO. 99-385-CIV-FTM-21

ROBERT SMITH and
RAY SIENKIEWICZ,
v.
JOHN McDOUGALL, individually and as
SHERIFF OF LEE COUNTY, FLORIDA, et. al.
Defendant,

PURSUANT TO LOCAL RULE 3.01, DEFENDANT CERTIFIES THAT THIS IS A DISPOSITIVE MOTION

MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW

The Defendant, JOHN McDOUGALL, individually and as SHERIFF OF LEE COUNTY, FLORIDA, by and through his undersigned counsel, hereby moves to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b), and as grounds therefore states:

1. Plaintiffs' Complaint fails to state a cause of action under 18 U.S.C. §248 as a matter of law.

2. 18 U.S.C. §248 does not provide a civil remedy for the Plaintiffs as they do not meet the definition of individuals who are "providing reproductive health services".

3. There is insufficiency of service of process.

WHEREFORE, the Defendant respectfully seeks an Order dismissing the Plaintiffs Complaint with prejudice as the Plaintiffs have failed to state a cause of action as a matter of law.

MEMORANDUM OF LAW

Defendant files his Memorandum of Law pursuant to Local Rule 3.01.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs have brought this action pursuant to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. §248, commonly referred to as F.A.C.E. The Plaintiffs are "sidewalk" counselors, who Plaintiffs allege are providers of "reproductive health services", as defined and protected by F.A.C.E. Plaintiffs allege that their attempts to provide "reproductive health services" by way of sidewalk counseling was thwarted by the Defendant when Defendant "threatened and intimidated" them by threatening them from removal from the facility. (Paragraph 14 of the Complaint.) However, Plaintiffs admit that they had attempted to provide "sidewalk" counseling on private property, and that the Defendant had threatened to physically remove them from private, not public, property. (See Paragraph 11 of the Complaint.)

However, Plaintiffs do not enjoy the protections provided in F.A.C.E. as they do not qualify as providers of "reproductive health services" under the Act.

ARGUMENT

The Freedom of Access to Clinic Entrances Act was passed in 1994 and was intended 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." See 18 U.S.C. §248, Congressional Statement of Purpose. The Plaintiffs are trying to twist the purpose and intent of the act to provide a civil remedy against law enforcement where the Plaintiffs are not providing or seeking reproductive health services, but are protesting and seeking to provide "counseling" to individuals seeking reproductive health services.

Section 248, the Freedom of Access to Clinic Entrances Act, states in pertinent 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;

(c) Civil remedies.-
(1) Right of action. -
(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... (emphasis added)
(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.

Although not specifically alleged in the Complaint, Plaintiffs' allegations fall into the category of §248(a)(1) as Plaintiffs allege that they were "providing reproductive health services" under the Act by performing "sidewalk" counseling. However, it is clear from the allegations in the Complaint that the Plaintiffs were not "involved in providing or seeking to provide...services in a facility that provides reproductive health services...", as required by statute. Conversely, the Plaintiffs are not providing services in a facility, but are merely "sidewalk" counselors. The definitions provided in the Act further demonstrate the inadequacy of the Plaintiffs' claims:

(e) Definitions. - as used in this section:
(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.

(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.

Under the clearly defined terms of the statute, the Plaintiffs do not meet the requirements of providing reproductive health services and are not protected by the Act. The Act defines "reproductive health services" as those services that are provided in some type of a facility, such as a hospital, clinic, or physician's office. Therefore, the Plaintiffs' act of providing "sidewalk" counseling is not protected under the Act. Moreover, a plain reading of §248(c)(1 )(A) indicates that a civil action may only be brought by a person who is providing or seeking to provide services in a facility that provides reproductive health services. Consequently, the Plaintiffs' cause of action fails as a matter of law, as they are not providing reproductive health services as defined under the Act.

If the Court perceives the language of the Act as ambiguous, a review of legislative history clarifies that Plaintiffs cannot state a cause of action as a matter of law. House Report No. 103-306, interpreting the Act, notes that "reproductive health services" as defined in Section 248(f)(1) of the Act "must be rendered in a hospital, clinic, physician's office, or other facility." H.R. Rep. 103-306, P.24 (1993) W.L.465093(Leg. Hist.) Interestingly, the House Report analyzes the very issue of whether "sidewalk counselors" are protected by the Act. The report states: "Upon closer examination, the core of the pro-life movement lacks the protection offered by this proposed new federal crime and federal civil tort. This is especially the case since most counselors, picketers, etc. will not be in a "facility". Id. at 29. Supporters themselves have stated that "casual sidewalk counseling" is not covered. The Committee Report speaks consistently in this regard." Id. Thus, the "pro-life" supporters recognized at the time the bill was passed that sidewalk counselors were not protected under the statute. As a result, summary judgment is appropriate.

CONCLUSION

The Complaint should be dismissed as a matter of law as the Plaintiffs do not qualify as providers of reproductive health services under the Act, and are not authorized to bring a civil cause of action as a matter of law pursuant to 18 U.S.C. §248(c)(1)(A). Moreover, Plaintiffs are attempting to manipulate the intent of the Act, which was enacted to provide protection to health care providers and women who are attempting to exercise their Constitutional right to abortion. Ironically, the Act was enacted to protect individuals from "pro-life" supporters such as the Plaintiffs, who interfere with the right of the health care providers to practice medicine, and women's right to an abortion.(1) Plaintiffs further misconstrue the Act by bringing an action against a chief law enforcement official who is merely enforcing the laws of the State of Florida with regard to trespass as the Plaintiffs admittedly were attempting to perform "sidewalk counseling'" on private property.

WHEREFORE, the Defendant respectfully seeks an Order dismissing the Complaint with prejudice as the Plaintiff's have failed to state a cause of action as a matter of law.

(1) Defendants concede that the Act applies to protect both "pro-life" and "pro-choice" providers of "reproductive health services" as long as the providers fit the definitions of the Act. (i.e. providing services in a facility.)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail this 2nd day of September, 1999 to Christopher F. Sapp, Esq., P. O. Box 1012, Lehigh Acres, FL 33970.

FOWLER, WHITE, GILLEN, BOGGS,
VILLAREAL & BANKER, P.A.

CONAL DOYLE <signed>
501 E. Kennedy Boulevard, Suite 1700
Tampa, Florida 33602
(813) 228-7411
Attorney for the Defendant
Florida Bar # 115622