Pro-Choice Network of Western New York v. Schenck

67 F.3d 377, 1995 WL 570394
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 28, 1995
DocketNo. 1215; Docket 92-7302
StatusPublished
Cited by11 cases

This text of 67 F.3d 377 (Pro-Choice Network of Western New York v. Schenck) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pro-Choice Network of Western New York v. Schenck, 67 F.3d 377, 1995 WL 570394 (2d Cir. 1995).

Opinions

OAKES, Senior Circuit Judge,

with whom Chief Judge NEWMAN and Circuit Judges KEARSE, MINER, WALKER, LEVAL, CALABRESI, CABRANES, and PARKER join:

This appeal was reheard in banc to reconsider the constitutionality of two provisions of an injunction issued against abortion clinic protesters. One provision creates fifteen-foot buffer zones around abortion clinic entrances, driveways, vehicles entering clinic driveways, and patients entering or leaving the clinics; two “sidewalk counselors” are allowed in the buffer zones to “counsel” patients as they approach or leave the climes. The second provision requires that if a patient expresses a desire to be left alone, the counselors must “cease and desist” and retreat to outside the buffer zone. The issue arises on an appeal by anti-abortion protesters from an order of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, issuing the injunction. We hold that inclusion of the two provisions in the injunction was proper, as they burden no more speech than necessary to further significant government interests. We therefore vacate the portion of the panel opinion striking down these provisions, and we affirm these two provisions as modified.

Background

Plaintiffs-Appellees Buffalo GYN Women-services, P.C., Erie Medical Center, Paul J. Davis, M.D., Shalom Press, M.D., Barnett Slepian, M.D., Morris Wortman, M.D., Highland Obstetrical Group, and Alexander Women’s Group are health care providers located in Western New York that offer family planning and gynecological services, including abortion services, at their health care facilities. Plaintiff-Appellee Pro-Choice Network of Western New York is a not-for-profit corporation based in Buffalo, New York. Its primary goal is to maintain legal and safe access to family planning and abortion services in the Western New York area.

While the Defendants were comprised of the organizations Project Rescue Western New York, Operation Rescue and Project Life of Rochester, and fifty individuals who oppose abortion and have engaged in demonstrations at or near abortion climes in Western New York, the only Appellants are the individuals Rev. Paul Schenck and Dwight Saunders.

I. The Lawsuit

This case commenced on September 24, 1990, when the Plaintiffs (collectively “Pro-Choice Network”) filed suit against the Defendants (collectively “Project Rescue”) asserting seven causes of action. The first [382]*382alleges that the defendants are engaged in a conspiracy to deprive women seeking abortions of the privileges and immunities of national citizenship and the equal protection of the laws in violation of 42 U.S.C. § 1985(3). The remaining six causes of action assert claims based on New York State law. They are: (1) violation of N.Y. Civil Rights Law § 40-c and N.Y. Executive Law § 296; (2) tortious interference with business; (3) trespass; (4) intentional infliction of emotional harm; (5) tortious harassment; and (6) false imprisonment.

Along with the complaint, Pro-Choice Network filed a motion for a temporary restraining order (TRO) pursuant to Fed.R.Civ.P. 65(b) to enjoin a “blockade” the defendants had announced for September 28, 1990. After a hearing, the district court issued a TRO enjoining defendants from “blockading” the plaintiffs’ medical facilities and from harassing the patients and staff entering or exiting those facilities.1 On September 28,1990, the defendants complied with the TRO by holding a peaceful protest rather than a blockade.

Pro-Choice Network moved to have the TRO converted into a preliminary injunction. With the consent of the parties, the district court ordered that the TRO would remain in effect until the motion for a preliminary injunction was decided. While the motion was pending, Pro-Choice Network filed civil contempt motions against six individual defendants and against Project Rescue, alleging violations of the TRO on six separate occasions (though hearings on only five of these were held prior to the issuance of the preliminary injunction).

II. The District Court Opinion

From March 6, 1991, to April 1, 1991, the district court held a hearing on the preliminary injunction motion. The court also held hearings on the civil contempt motions intermittently from February 6, 1991, through January 30, 1992.

A. Factual Findings

As a result of the evidence taken at those hearings, the district court, in an opinion and order issued February 14, 1992, made extensive findings of fact, as summarized below.

Project Rescue organizes and participates in “rescue” demonstrations at clinics throughout Western New York, including medical facilities associated with Plaintiffs-AppeUees. Through these demonstrations, Project Rescue intends to prevent abortions, dissuade women from seeking abortion services, and impress upon the public the morality of its “pro-life” views. The demonstrations are mostly peaceful in nature, but they often become emotionally charged encounters between demonstrators, patients and patient escorts.

Project Rescue has stipulated that a physical “blockade,” which prevents patients and [383]*383staff from entering or exiting a medical facility, may be enjoined. Thus, only two demonstration methods used by Project Rescue are at issue in this ease: (1) constructive “blockades,” in which demonstrators protest and picket in a loud and disruptive manner outside the medical facilities and harass patients and staff entering and exiting the facilities; and (2) “sidewalk counseling” of patients entering the facilities.

The constructive blockades have the same goal as the physical blockades — preventing utilization of the climes. Instead of physically blocking patient access to the clinics, Project Rescue constructively blockades the clinics by forcing patients and staff to run a gauntlet of harassment and intimidation.

At times, demonstrators yell at patients, patient escorts and medical staff entering and leaving the health care facilities. The demonstrators also crowd around people trying to enter the facilities in an intimidating and obstructing manner, and grab, push and shove the patients, patient escorts and staff.

Pro-Choice Network of Western New York v. Project Rescue Western New York, 799 F.Supp. 1417, 1424 (W.D.N.Y.1992) (Pro-Choice I). This harassment and intimidation causes stress and sometimes even physical injury to the patients and medical staff, and generally disrupts the atmosphere necessary for rendering safe and efficacious health care.

In implementing the constructive blockades, Project Rescue also targets vehicles entering the driveways of the medical facilities:

Demonstrators frequently and routinely congregate in or near the driveway entrances to the facility parking lots in order to impede and obstruct access to the facilities. The presence of numerous demonstrators in the driveway entrances intimidates and impedes the drivers of cars seeking access to the parking lots of the facilities and creates a danger to both the occupants of the cars and the demonstrators themselves.

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Pro-Choice Network of Western New York v. Schenck
67 F.3d 377 (Second Circuit, 1995)

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Bluebook (online)
67 F.3d 377, 1995 WL 570394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pro-choice-network-of-western-new-york-v-schenck-ca2-1995.