DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

I. OVERVIEW OF CASE

Defendant, AWARE WOMAN CENTER FOR CHOICE, INC. (hereinafter AWARE WOMAN), is a Florida corporation, located at 1564 Dixie Way, Melbourne, Florida. AWARE WOMAN is a facility providing reproductive health services for women. Defendants, EDWARD W. WINDLE, JR. and PATRICIA B. WINDLE, own and operate the facility, and as such, are providers of reproductive health services for women. Because part of AWARE WOMAN's services include termination of pregnancy, it has become the target of frequent and obstructive demonstrations by anti-abortion activists. Since the trial court conformed its injunction to the United States Supreme Court decision in Madsen v. Women's Health Center, AWARE WOMAN has been protected by a thirty-six foot buffer zone. In Madsen the Supreme Court of the United States agreed with the Supreme Court of Florida "that the state has a strong interest in protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy." See Madsen v. Women's Health Center, 114 S. Ct. 2516, 129 L. Ed. 2d 593, 599 (1994). The state court's purpose in instituting the thirty-six foot buffer zone was to counteract the negative impact the demonstrators and their activities were having on patient access to the facility and patients' health and welfare. Id. at 599-600.

In 1994, Congress enacted the Freedom of Access to Clinic Entrances Act (FACE) with similar concerns in mind. Codified under 18 U.S.C. §248, the Act prohibits, among other things, force, threat of force, physical obstruction, or intentional injury or intimidation of those seeking or providing reproductive health services. Reproductive health services are defined in the Act as "reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counseling or referral services related to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy. All the Defendants belong to the class of persons Congress sought to protect in enacting this statute.

Plaintiff, on the other hand, is a self-professed anti-abortion activist. Plaintiff was engaged in anti-abortion activity within the thirty-six foot buffer zone in violation of a state injunction when his alleged damages occurred. See Windle Affidavit ¶ 6. Plaintiff describes his activities on the dates at issue as the "counseling of men and women as to the spiritual, moral, medical, physical and psychological health aspects of adoption, pregnancy termination, fetal development and prenatal care; and offering financial assistance and referrals to other related care-givers, not only when said women and men are entering the facility but also upon their leaving." Complaint ¶ 14. Plaintiffs objective in forcing his brand of "reproductive health services" within the thirty-six foot buffer zone upon persons attempting to enter the clinic, was to prevent those persons from entering AWARE WOMAN to receive the reproductive health services provided therein and to voice his own views regarding these persons' reproductive decisions.

In accordance with their protected rights under the injunction which provided the thirty-six foot buffer zone, Defendants notified local law enforcement of Plaintiff's violation of the injunction. This resulted in Plaintiffs removal from the buffer zone by officers of the Melbourne Police Department. Plaintiff then filed this instant action claiming protection as a reproductive health services provider under FACE and violations of FACE by Defendants, whose acts resulted in Plaintiff's removal from the buffer zone.(Emphasis added.)

II. PLAINTIFF DOES NOT HAVE STANDING TO BRING AN ACTION UNDER THE FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT (FACE) BECAUSE HE IS NOT WITHIN THE PROTECTED CLASS OF PERSONS CONTEMPLATED BY THE ENACTMENT.

The federal courts "judicial power" is limited to "cases" and "controversies" by the United States Constitution. U.S. Constitution Article 111, §2. As an incident to this limitation, the Supreme Court has always required that a Plaintiff have "standing" to participate in the adjudication of a lawsuit. See Valley Forge Christian College v. Americans United for Separation of Church and State. 454 U.S. 464, 471 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982). To have standing, a plaintiff must, at a minimum, allege an actual or threatened injury which can fairly be traced to the challenged conduct and will likely be redressed by a favorable decision. See Valley Forge, 454 U.S. at 472, 102 S. Ct. at 758. The plaintiff may also be required to satisfy several prudential principles before his claim may be heard. Chiles v. Thornburgh, 865 F. 2d 1197 (11th Cir. 1989). For example, the plaintiff must be within the "zone of interest" protected by the provision at issue. The zone of interest test asks whether the Plaintiff is "pursuing an interest 'arguably within the zone of interests' Congress intended to either regulate or to protect." Hazardous Waste Treatment Council v. Thomas, 885 F. 2d 918, 922 (D.C. Cir. 1989). Congress, in enacting the Freedom of Access to Clinic Entrances Act, sought to protect the interests of persons seeking reproductive health services and persons providing reproductive health services. Plaintiff is clearly not within the zone of interest protected by FACE, as he is neither a party seeking reproductive health services nor a provider of reproductive health services as defined by 18 U.S.C. §248(e)(5). Maintenance of this suit creates a mockery of FACE, as it seeks to circumvent the purpose and meaning of the statute, and attempts to manipulate the laws Congress enacted. In addition, Plaintiff's position creates an irreconcilable conflict between Plaintiff's alleged rights and Defendants' established rights protected by the thirty-six foot buffer zone as described in Madsen.

A. Plaintiff is not a Member of the Protected Class of Persons Contemplated by Congress When it Enacted 18 U.S.C. §248.

Persons protected under 18 U.S.C. §248, as it relates to this suit, are those obtaining or providing reproductive health services. See 18 U.S.C. §248(a)(1). Persons who obtain reproductive health services, are obviously women, a class to which Plaintiff is not a member. Reproductive health services is defined within the statute as "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." Id. at §(e)(5). By definition, reproductive health services are provided within a recognized medical facility such as "a hospital, clinic, physician's office," or like facility. Therefore, providers of reproductive health services are those working within, affiliated with, and authorized to act on behalf of the attendant medical facility. Plaintiff was not within the facility, nor was Plaintiff an employee of AWARE WOMAN, or an agent or representative authorized to provide reproductive health services for AWARE WOMAN. (Windle Affidavit ¶ 5).

Plaintiff attempts to controvert the plain meaning of the statute by alleging that the thirty-six foot buffer zone in which he was dispensing his own brand of "reproductive health services" is part of the AWARE WOMAN facility. This absurd allegation has no basis in fact or law and is an allegation this Court must reject. Even, assuming arguendo, the clinic includes the thirty-six foot buffer zone, Plaintiff was not authorized to be in the clinic, on clinic property or within the buffer zone, nor was Plaintiff authorized by AWARE WOMAN to provide reproductive health services on behalf of the clinic. In fact, Plaintiff was an unwanted, uninvited demonstrator in violation of the Court imposed buffer zone protecting the clinic.

B . This Court Should Deny Standing to Plaintiff Because Plaintiff's Suit Will Frustrate Rather Than Further Statutory Objectives of the Freedom of Access to Clinic Entrances Act.

"The fundamental, and exceptionable, idea behind [the zone of interest test] is a presumption that Congress intends to deny standing to 'those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.'" Hazardous Waste Treatment Council, 885 F. 2d at 922 (quoting Clark v. Securities Industry Association, 479 U.S. 388, 397 n. 12, 107 S. Ct. 750, 756 n. 12, 93 L. Ed. 2d 757 (1987). Congress' objective in enacting the Freedom of Access to Clinic Entrances Act, as the title indicates, was to discourage certain activities perpetrated by anti-abortion activists, which deny women access to abortion clinics through threats, intimidation or actual physical violence and obstruction of the clinic entrance, by providing federal criminal penalties and civil remedies for such actions. To allow Plaintiff standing in the present action would frustrate the statutory objectives by allowing anti-abortion activists to protest within the court imposed buffer zone under the guise of providing reproductive health services. It has been demonstrated in the past, and is evidenced by the court's imposition of increasingly restrictive injunctions, that a buffer zone is necessary to provide access to AWARE WOMAN while anti-abortion demonstrations are in progress. The demonstrator's attempts to "counsel" patients near the clinic entrance and driveway have been shown to inhibit and deny, rather than promote access to AWARE WOMAN. As this is in direct contravention to Congress' purpose in enacting the Freedom of Access to Clinic Entrances Act, its effect is to frustrate Congress' statutory objectives in enacting the statute.

If Plaintiff is allowed to maintain his suit, other similarly situated protestors are poised to follow suit. Defendants will be chilled from taking steps to enforce the circuit court's injunction, which would render said injunction useless. Without the protection of the injunction, the health, safety and welfare of women will be in jeopardy and the freedom of access to clinics envisioned by FACE will be frustrated.

CONCLUSION

This action should be dismissed because Plaintiff lacks standing to bring an action based solely on 18 U. S.C. §248 (FACE). Plaintiff lacks standing because he is not a reproductive health provider as defined by the statute nor is he a person seeking to obtain reproductive health services. Therefore, he is not a member of the protected class of persons contemplated by Congress when it enacted the Freedom of Access to Clinics Entrances Act. In addition, maintenance of this suit frustrates rather than furthers the statutory objective of the Act. Therefore, Defendants request this Honorable Court dismiss Plaintiff's action for lack of standing, and award reasonable attorneys' fees and costs in defense of this action pursuant to §57.105, Florida Statutes (1997).

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail to Christopher F. Sapp, Esq., P. 0. Box 1012, Lehigh Acres, FL 33970. this 21st day of October, 1997.

FRESE, NASH & TORPY, P.A.

BY:
VINCENT G. TORPY, JR. <signed>
Florida Bar No. 394882
930 S. Harbor City Blvd., Suite 505
Melbourne, FL 32901
(407) 984-3300
Attorney for Defendants