ORDER

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
ORDER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO. 6:99-CV-85O-ORL-19KRS

JANE ROE, II,
Plaintiff,

vs.

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

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ORDER

This case was considered by the Court on the following:

1. Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle’s Dispositive Motion for Summary Judgment., Doc. No. 66.

2. Memorandum of Law in Support of Defendants Motion for Summary Judgment. Doc. No. 67.

3. Plaintiff Jane Roe II’s Brief in Opposition to Defendants Patricia Windle, Edward Windle, and Aware Woman Center for Choice’s Motion for Summary Judgment. Doc. No. 77.

4. Plaintiff Jane Roe II's Dispositive Motion for Partial Summary Judgment. Doc. No. 83.

5. Plaintiff Jane Roe II's Brief in Support of her Motion for Partial Summary Judgment. Doc. No. 84.

6. [Defendant Egherman’s] Motion for Final Summary Judgment and Memorandum of Law in Support. Doc. No. 89.

7. Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle’s, Memorandum in Opposition to Plaintiff, Jane Roe’s Motion for Partial Summary Judgment. Doc. No. 91.

8. [Defendant Egherman’s] Opposition to Plaintiff, Jane Roe, II, Motion for Summary Judgment. Doc. No. 92.

9. Plaintiff Jane Roe, II’s Brief in Opposition to Defendant Egherman’s Motion for Summary Judgment. Doc. No. 102.

Plaintiff brought a one-count complaint (Doc. No. 39) under 18 U.S.C. § 248(a)(1) against Defendants collectively for performing abortion-related medical care on her after she had explicitly revoked her consent.

Background

On March 29, 1997, Plaintiff went to the Aware Woman Center in Melbourne, Florida for a scheduled abortion. A week before her procedure, she visited the clinic to go through a mandatory pre-abortion orientation, which involved counseling, a video, and the completion of an informed consent form.¹ Doc. No. 71, Roe Depo., pp. 99, 102. Plaintiffs 1997 abortion was her fourth, and Plaintiff testified that she was aware of its

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¹Plaintiff's deposition is somewhat confusing concerning how many times she visited the clinic in March 1997. It appears that she may have visited it three times, the 10th, the 22nd, and the 29th. Doc. No. 71, Roe Depo., pp. 92-94, 99-100.

risks.

Upon her arrival, Plaintiff was asked to take a urinalysis to confirm that she was pregnant. Id. at p. 102; Doc. No. 75, Egherman Depo., p. 120. She then donned a surgical gown and was directed to a waiting room where she sat with other women who were also there for abortions. Doc. No.71, Roe Depo., p. 103. Plaintiff testified that, in comparison with her previous experiences, women were being shuttled in and out of the operating suite at a disconcertingly fast pace, as though they were on “an assembly line or something.” Id. at p. 105.

When it was Plaintiffs turn, she was called into the operating suite and asked to lie down on the table. She recalled the staff trying to soothe her because she was so agitated. She repeatedly told them she was “afraid.” Id. at p.108. Dr. Egherman, who performed the procedure and is a Defendant in the instant lawsuit, testified that the clinic staff informed him immediately prior to the abortion that Plaintiff was “very, very nervous.” Doc. No. 75, Egherman Depo., p. 128. He decided to administer inhalational nitrous oxide as a sedative, which is indicated only for uncommonly anxious patients. Id. at pp. 128-129. Other than reassuring her at the outset, Dr. Egherman did not concentrate primarily on Plaintiffs anxiety because there was a patient advocate in the operating room whose only responsibility was to ensure her well-being. Id. at pp. 131, 151, 159.

Dr. Egherman intended to perform an abortion procedure known as “dilation and curettage” (“D&C”). A D&C involves inserting progressively larger dilation rods into the uterus through the vagina and cervix. Once the cervix is dilated, the doctor scrapes out the uterus with a vacuum-powered curette which dismembers and removes the fetus.

Dr. Egherman began the abortion by performing a pelvic examination to augment what he knew from the ultrasound about the orientation of the uterus, how many months pregnant Plaintiff was, and the existence of any abnormal masses in her reproductive organs. Id. at p. 144. He then inserted the speculum to retract vaginal tissue and afford him an unimpeded view of the cervical collar. Id. at p. 146. This did not go well, however. Though insertion of a speculum is not painful if performed properly, Dr. Egherman testified that Plaintiff squirmed and complained, indicating to him that she had serious and unusual apprehension. Id. After disinfecting and anesthetizing the cervix, he began to dilate Plaintiff with a 39 millimeter rod. Id. at p. 155. When she achieved proper dilation, he inserted the suction curette.

At some point Plaintiff began to complain of intense pain, which subsequent medical treatment would veri& was the result of a uterine perforation and laceration of her colon. Id. at p. 156; Doc. No.71, Roe Depo., pp. 109-111. Dr. Egherman testified that he is not medically certain what caused the initial perforation, though the laceration appears to have been inflicted when the suction curette passed through the aperture in her uterus and began to abrade the highly sensitive colon. Doc. No. 75, Egherman Depo., pp. 156-158. Alternatively, Dr. Egherman may have lacerated Plaintiffs colon when he used heavy “bear” forceps to extract what he mistakenly thought was stubborn fetal tissue refusing to separate from the uterine wall. Id. at p. 169. He was instead probably biting into her colon through the uterine perforation he had inadvertently created. Id.

Experiencing intense pain, which she knew to be abnormal on the basis of her previous abortions, Plaintiff ordered Dr. Egherman to stop. Doc. No. 71, Roe Depo., p.

113; Doc. No. 75, Egherman Depo., p. 156 ("But what I do remember her saying is ‘my God, you’re hurting me, you’re killing me, I’ll never be able to have babies.’"). Dr. Egherman temporarily withdrew when told by Plaintiff to stop, but then proceeded with invasive medical treatment despite her protests. He is not certain at what point Plaintiff directly ordered him to stop, but he does know that he realized soon after she reported intense, atypical pain that a serious complication had occurred. Id. at p. 159. His tactile intuitions had been telling him that something was not right, and his concerns were confirmed when it became apparent that the suction curette was clogged with non-fetal tissues and his use of the “bear” forceps was not yielding the right result. Id. at pp. 159, 169. At that point he abandoned the procedure and shifted into diagnostic mode to figure out what precisely was wrong and if Plaintiff was in any immediate jeopardy. Id. at p. 169.

Plaintiff, however, refused to assent to any additional treatment. She demanded to be allowed to leave. Doc. No. 71, Roe Depo., p. 86. It was at this point that Dr. Egherman ordered his staff to restrain Plaintiff so that he could treat her against her express wishes. Id.; Doc. No. 75, Egherman Depo., pp. 174, 190-192, 197. This act of restraint and the ensuing medical care, administered in spite of Plaintiffs revocation of consent, constitutes the basis of her cause of action against Defendants.

Dr. Egherman used an ultrasound machine to survey Plaintiffs internal organs to determine what had gone wrong. He inserted a dilation rod, which is plainly visible on the ultrasound, both as a probe and an orientation marker. Id. at p. 173. According to Dr. Egherman, it was medically imperative to ascertain the nature of Plaintiffs complication

because something traumatic, such as a ruptured artery, could rapidly lead to death. It is this insertion of the dilation rod to which Plaintiff referred in her deposition when she testified that "he proceeded to go back in there again..." Doc. No. 71, Roe Depo., p. 116. This insertion of the dilation rod also appears to correspond to paragraphs 34 and 44 of Plaintiffs amended complaint (Doc. No. 39) in which she alleges that Dr. Egherman forcibly continued the abortion despite her revocation of consent. On the strength of his diagnostic assay, Dr, Egherman concluded three things: (1) he had perforated Plaintiff’s uterus; (2) she required emergency transport to the hospital via ambulance; and (3) she needed to be stabilized. Doc. No. 75, Egherman Depo., p. 175.

Dr. Egherman testified that, following his decision to call the ambulance², he ordered intravenous saline to maintain blood volume, prophylactic antibiotics to counter any incipient infection, the administration of oxygen through the nitrous oxide mask, the packing of Plaintiffs vagina with sterile gauze, and uterine massage to tightened up her relaxed reproductive organs. Id. at pp. 176-178. Before Plaintiff arrived at the hospital, Dr. Eghennan called the emergency room attending physician to apprise him of her status. Id. at p. 196. He also spoke to the on-call OBGYN specialist who removed the fetus and performed the surgery to repair Plaintiffs injuries. Id.

The Court notes a few non-material disagreements between Plaintiffs perception of the abortion and that of Dr. Egherman. Plaintiff testified that she received intravenous sedation in her left ann before the abortion began, and that these lines were removed when she sat up complaining of pain. Doc. No. 71, Roe Depo., p. 85. Dr.

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²The actual call was placed by a clinic staff member. Doc. No. 75, Egherman Depo., p. 196.

Egherman, on the other hand, who was testifying while reading medical records (Doc. No. 75, Eghennan Depo., p. 143), stated that i.v. lines were administered for the first time as part of the effort to stabilize Plaintiff. Plaintiff and Dr. Egherman agree, however, that he had to help insert the i.v. during the diagnostic and stabilization phase. Plaintiff also believes without any corroborating evidence that the use of the mask and i.v. lines during the stabilization phase were an effort to sedate her. Doc. No. 71, Roe Depo., pp. 86, 88, 113, 115.

Plaintiff required a week in the hospital and six weeks of rest at home to recover from her emergency surgery. Id. at pp. 125-127. She apparently did not suffer sterility because she became pregnant again in 1999, though this pregnancy was also terminated with an abortion. Id. at p. 40.

Plaintiff originally filed her complaint in July of 1999. Doc. No. 1. This complaint was dismissed on the ground that Plaintiff failed to allege that Defendants were motivated by a desire to interfere with her access to reproductive healthcare services.³ Doc. No. 29, pp. 11-12. After appeal, Plaintiff filed an amended complaint (Doc. No. 39), which is the basis for the instant order.

Standard of Review

Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a

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³The dismissal and subsequent appellate decision also addressed the question of whether Plaintiff ought to be entitled to proceed anonymously, but this issue is not relevant to the instant order.

judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248(1986). Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Id. The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex v. Catrett, 477 U.S. 317, 323 (1986).

In determining whether the moving party has satisfied the burden, the court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255. The court may not weigh conflicting evidence or weigh the credibility of the partiea See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913,919(11th Cir. 1993) (citation omitted). If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then a court must not grant summary judgment. Id. (citation omitted).

Analysis

1. The Appellate Decision

It is necessary at the outset to clarify the scope of Roe, II v. Aware Woman Center for Choice, Inc., 253 F.3d 678(11th Cir. 2001), which is the intervening appellate decision. In the instant case the appellate court held that FACE could be invoked in any situation in which force or the threat of force was used to deny a woman access to reproductive healthcare services. Id. at 682 (“If the defendants restrained Roe for the purpose of preventing her from obtaining any [reproductive healthcare services], then she has adequately pleaded a violation of FACE...”). In other words, even though Congress

expressly enacted FACE to chill certain forms of anti-abortion activism, id. at 683 ("Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions.") (citation omitted), the statute does not end at an abortion clinic’s front door. It reaches into the operating room itself, providing a remedy to any woman who alleges that anyone, including even her own abortionist, used force or the threat thereof to vitiate her right to choose her own reproductive healthcare services.

The essence of FACE is its motive requirement.⁴ Id. A tort feasor violates the statute only if he or she deliberately uses force or the threat thereof “because” someone has sought “reproductive health services.” 18 U.S.C. § 248 (a)(1). This motive requirement is demanding. Mere negligence is not enough. An absentminded pedestrian, for example, who bumped into a woman entering an abortion clinic would not have violated FACE. Nor does FACE prohibit purely incidental burdens on this right of access. A bus driver who refused for safety reasons to stop the bus on a busy interstate highway to let a woman exit because she announced she wanted an abortion would not have violated FACE. Even outright crimes that incidentally burden a woman’s ability to obtain reproductive healthcare services do not fall within the ambit of FACE. A mugger who held up a woman on her way to a scheduled abortion would not have violated FACE. Id. at 683 (“FACE’s motive requirement targets [intentional conduct] while ensuring that FACE does not federalize a slew of random crimes that might occur in the vicinity of an

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⁴Strictly speaking, FACE has three elements: (1) that a defendant by force or the threat thereof; (2) intentionally injures, intimidates or interferes with, any person (or attempts to do so); (3) because that person has obtained or intends to obtain reproductive healthcare services. 253 F.3d at 680.
For the purposes of its analysis, the Court will assume that the first and second elements have been satisfied and concentrate solely on the question of Dr. Egherman’s motive.

abortion clinic.”) (citation omitted). Thus, only tortfeasors with the willful intent, see, e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 275-276 (1993), to deprive a woman of reproductive healthcare services are liable under FACE.

Plaintiff underestimates the importance of the intent requirement. At times in her memoranda, she treads on unsteady ground, arguing for something more closely resembling medical malpractice or perhaps battery (see, e.g., Doc. No. 77, pp. 7-8), and she further urges the Court to hold various Defendants responsible for Dr. Egherman’s conduct under the doctrine of vicarious liability. However, the Eleventh Circuit’s decision in Roe, II v. Aware Woman did nothing to weaken or otherwise amend FACE’s robust motive requirement. The appellate court, in other words, did not transform the statute into an all-purpose federal substitute for ordinary state torts. If Plaintiff wanted to recover for medical malpractice, or any other tort, she should have included such pendent causes of action in her complaint.

2. Was there a forced abortion?

In her various memoranda, and in contradistinction to her complaint, Plaintiff contends that Defendants committed two, not one, distinct FACE violations. See Id. at 4; Doc. No. 84, p. 6; Doc. No. 102, pp. 1-2). The first of these is the allegation that Dr. Egherman tried to perform a forced abortion. Plaintiff claims, in other words, that he sought to abort her fetus after she revoked her consent, but before any medical emergency arose. See Doc. No. 84, pp. 3-9.

This allegation relies on what can only be described as a wilIful mischaraeterization of Dr. Egherman’s deposition testimony. In her memoranda, Plaintiff

tries to craft a narrative of what transpired during the abortion by citing various lines from Dr. Egherman’s deposition. See, e.g., id. at pp. 5-6. Though the lines she cites generally fall one after another in his deposition, his testimony, as is common with deponents as they answer questions, jumped around and between topics, darting forward and then back in time. Like an unscrupulous journalist, Plaintiff has essentially “edited” and decontextualized her testimonial “footage” in a way that makes it appear as though Dr. Egherman said he did things he did not in fact do.

For example, under the first subheading ‘a’ on page five of her memorandum in support of her motion for partial summary judgment (Doc. No. 84), Plaintiff cites pages 153:20-25, 154:22-25, 160:24-161:1 of Dr. Egherman’s deposition for the proposition that Plaintiff revoked her consent to the abortion, but that Dr. Egherman nevertheless carried on against her wishes. The first two citations refer to Dr. Egherman’s initial insertion of the dilation rod and its removal so he could inject Plaintiff with more local anesthetic to alleviate her reported discomfort. Nothing about either of these two citations remotely implies that Plaintiff revoked her consent to the abortion. Plaintiffs third citation (to pages 160:24-161:1) refers to a genuine revocation of consent that took place much later in the procedure after things had gone seriously wrong. It was at this crucial moment, during which Plaintiff was in excruciating pain, that Dr. Egherman was trying to ascertain what sort of complication had occurred. There is no relationship whatsoever between the first two of these citations and the third, and they do not collectively suggest the conclusion that Plaintiff urges the Court to draw; namely, that Dr. Egherman was trying to perform a forced abortion. Plaintiffs citations in the three other

subheadings of her memorandum (Doc. No. 84, p. 5) are similarly disjointed, stripped of context, and used only to obfuscate and mislead.

Presented with nothing but the record before the Court, no reasonable jury could conclude: (1) that Plaintiff revoked her consent to the abortion while it was still medically safe for Dr. Egherman to discontinue; and (2) that Dr. Egherman pressed ahead nevertheless and, despite Plaintiffs revocation of consent, ordered her restrained so he could perform a medically unnecessary abortion. Plaintiff’s deliberate misuse of Dr. Egherman’s testimony to portray him as someone trying to perform a forced abortion is not only factually incorrect, but also is the sort vexatious and baseless allegation that verges precipitously on sanetionable bad faith. To the extent that Plaintiff alleges that she was the victim of a forced abortion, summary judgment is granted to all Defendants.

3. Did Dr. Eghennan violate FACE during the diagnostic and stabilization phase of the procedure?

With the issue of the forced abortion resolved, Plaintiffs cause of action turns on the question of whether Dr. Egherman’ s actions following her revocation of consent constitute a violation of FACE. This is what Plaintiff calls the second FACE violation. Plaintiff contends that her right to revoke consent at any moment during an abortion is inviolable, regardless of any danger to her health. Doc. No. 84, p. 1 (“...when a woman says ‘NO’ it means ‘NO.”). Dr. Egherman, on the other hand, asserts that acting in a patient’s best interests sometimes requires a doctor to act against her wishes. He argues that Plaintiffs revocation of consent was unknowing, and therefore ineffective, because it was made under the influence of pain, fear, and sedation. Doc. No. 75, Egherman Depo.

pp. 190-192. He also testified that full cervical dilation is in effect a point of no return for a woman undergoing an abortion because she stands an intolerable risk of potentially fatal infection if the fetus is not removed. Id. at p. 160. Dr. Egherman in fact believes that it would have been unethical for him to have abandoned Plaintiff on the operating table just because she asked him to do so. Id. at pp. 191-192. While this controversy poses searching philosophical questions, it is not necessary for the Court to reconcile Plaintiffs interest in her own autonomy and bodily integrity with Dr. Egherman’s ethical obligations toward her. The only issue before the Court is whether Dr. Egherman had an illegal motive under FACE when he chose to restmin Plaintiff, and then reenter her vagina with his hands and medical instruments during the diagnostic and stabilization phase of the procedure.

Plaintiff contends that Dr. Egherman’s explanation of why he restrained and reentered her is tantamount to a “necessity defense,” which, she argues, exists neither in the statute nor in the case law. See, e.g., Doc. No. 84, pp. 6-9. But this contention fundamentally misunderstands the nature of Dr. Egherman’s testimony. His explanation only seems like a “necessity defense” because Plaintiff, erroneously, seems to regard FACE as the federal statutory analogue of torts such as battery or malpractice. Perhaps if FACE were nothing more than these ordinary torts, which do not have a stringent motive requirement, Dr. Egherman’s explanation would indeed constitute a necessity defense of sorts.

FACE, however, is neither a battery nor a malpractice statute. It is a statutory tort with three distinct elements, the last of which requires the putative tortfeasor to have had

a specific motive. In explaining that what he did to Plaintiff was medically necessary, Dr. Egherman is simply stating that he did not have the motive that is an essential element of a FACE violation. In other words, Dr. Egherman is not pleading an affirmative defense to a FACE violation. He is arguing on the contrary that there was no FACE violation in the first place.

Dr. Egherman has not wavered from his contention that he acted in Plaintiff’s best medical interests, and that he had no desire to interfere with her right to choose reproductive healthcare services. Indeed, as an unapologetic abortionist, he testified to his conviction that a woman’s so-called “right to choose” is sacrosanct. Doc. No. 75, Egherman Depo., pp. 185, 192 (“If a patient wants to leave and has decided against the procedure, we don’t want to do anything to that patient.”). Plaintiff glibly dismisses Dr. Egherman’s representations about his own motives as self-serving. See, e.g., Doc. No. 77, p. 3 ("To bolster [the assertion that Dr. Egherman did not have illegal motives] [Defendants] quote from Defendant Egherman’s deposition wherein he denies having a judicially impure motive. Stop the presses!"). Yet there is nowhere else to begin because the burden of proof falls squarely on Plaintiff, not on Dr. Egherman. The salient question, therefore, asks what evidence has Plaintiff adduced that creates any material doubt about Dr. Egherman’s reasons for doing what he did.

There is none. Plaintiff did not depose anyone else present during the procedure, so the Court does not have access to their insights concerning Dr. Egherman’s conduct. Plaintiff also did not depose anyone on staff at the hospital where she was treated. Nor did Plaintiff compile any expert medical evidence to refute Dr. Egherman’s contention

that everything he did was medically necessary. Plaintiff’s only affirmative “evidence” consists of her own deposition testimony, which does nothing more than recite conclusory statements about the wrongness of Dr. Egherman’s conduct and second-guess his motives.⁵

Lacking meaningful evidence of her own, Plaintiff attempts to resist summary judgment by identifying three speculative reasons why a reasonable jury could infer that Dr. Egherman acted other than in her best medical interests: (1) his financial interest in Plaintiffs abortion and the abortions of the women in the waiting room; (2) concern for malpractice liability; and (3) concerns about political embarrassment. See, e.g., Doc. No. 102, pp. 6-7. These three reasons, however, are inadequate as matters of fact and law to avoid summary judgment.

As matters of fact, none of these putative “reasons” amounts to anything more than unsubstantiated speculation by Plaintiff, and it is elementary that such speculation is insufficient to resist summary judgment. Apart from being devoid of any evidentiary support, the inferences Plaintiff urges the Court to draw are tenuous at best, and apparently driven by little more than personal loathing of Defendants who are described by Plaintiff’s counsel as being part of the “pm-abortion behemoth.” Doc. No. 84, p. 9.

With respect to the first inference, no reasonable jury could conclude on this

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⁵Plaintiff’s own conclusions about the wrongness of Dr. Egherman’s conduct reflect a belief that he did something analogous to rape, battery, or medical malpractice. See, e.g., Doc. No.71, Roe Depo., p. 89 (“After I told him about this pain, don’t touch me again, I’m saying that he should not have gone back in there.”); p. 113 (“And I consider that rape, because after I told you not to touch me, I know the pain was just excruciating, he went back into me again.”); p. 120 (“But like I said, everybody is entitled to their mistake and everybody should pay for what they do.”); p. 121 (“I just feel that I was raped.”); p. 140 (“Because after I told him not to go in and he went in the second time, yes, I think he was, yes, trying to go in and intentionally damage me.”).

record that Dr. Egherman was motivated primarily by his financial interest in the abortions he was to perform on March 29, 1997 because he had no such interests. He testified that he was too “rattled” by Plaintiff’s complications to do any more abortions that day, and he went to the hospital that afternoon check on her. Doc. No. 75, Egherman Depo. pp. 216-217.

Next, on the basis of the record before the Court, no reasonable jury could conclude that Dr. Egherman’ s frantic efforts to diagnose and stabilize Plaintiff were motivated by a desire to minimize malpractice exposure. As noted earlier, Plaintiff gathered no evidence whatsoever, much less expert evidence, that might provide a basis for questioning Dr. Egherman’s direct representations about his own motives. In the absence of competent evidence that tends to impeach him, Dr. Egherman’ s testimony about his own conclusions, motives, and actions have to be taken as authoritative.

Finally, no reasonable jury could interpret Dr. Egherman’s attempt to stabilize Plaintiff following a suspected uterine perforation as a calculated response to the specter of political embarrassment.” Plaintiff offered no explanation in support of this conclusion. Such conclusory statements of “political embarrassment” do not create a genuine dispute concerning an issue of material fact about Dr. Egherman’s motives or contradict his unimpeached and direct testimony.

In addition, regardless of their insufficiency as matters of fact, these three inferences would in any case be insufficient as matters of law to preclude summary judgment. As discussed earlier, what distinguishes FACE from torts such as battery and medical malpractice is its stringent motive requirement. Contrary to Plaintiff’s apparent

belief, a FACE violation does not occur simply because someone like Dr. Egherman acts with motives that a reasonable jury may happen to dislike. In other words, even if it were true, which the undisputed evidence shows it was not, that Dr. Egherman tried to stabilize Plaintiff’s severe injuries because he was concerned primarily about medical malpractice, it does not follow that he violated FACE.

18 U.S.C. § 248(a)(1) protects women from persons who use force or the threat thereof for the express purpose of denying women access to legal reproductive healthcare services. It does not establish criminal or civil penalties for persons whose conduct, even if unequivocally illegal, merely places incidental burdens on access to reproductive healthcare. In other words, alleging that Dr. Egherman restrained Plaintiff for no other reason than to minimize his malpractice exposure, while reprehensible, is not the same thing as alleging that he restrained Plaintiff for the express purpose of preventing her from obtaining the reproductive healthcare services of her choice. Once this distinction between purposeful and incidental burdens on a woman’s right to choose her own reproductive healthcare services is understood, it is clear that Plaintiff cannot prevail. None of the three motives Plaintiff urges the Court to impute inferentially to Dr. Egherman are wrongful under FACE.

In summary, Plaintiffs cause of action against Dr. Egherman suffers from not simply a paucity of affirmative evidence, but a glaring lack thereof. Her allegation that Dr. Egherman tried to perform a forced abortion is premised on a willful misreading of his deposition testimony. Beyond this claim, her case rests on three dubious inferences, unsupported by any credible evidence, about what Dr. Egherman’s motives were when he

ordered her restrained during the diagnostic and stabilization phase of the procedure. None of these three inferences are reasonable as matters of fact because they are contrary to the direct evidence of record and they depend on unsupported interpretations of Dr. Eghennan’s deposition testimony. Furthermore, none of these motives corresponds as a matter of law to the specific intent that FACE requires.

CONCLUSION

For the foregoing reasons, summary judgment is GRANTED to Dr. Egherman (Doc. No. 89) on the ground that there is no evidence that he acted with the motive that is required under FACE. Summary judgment is also GRANTED to the three remaining Defendants (Doc. No. 66) on the ground that they cannot be vicariously liable for the wrongful conduct of their agent, Dr. Egherman, once he has been found to be without liability. Finally, summary judgment is DENIED to Plaintiff (Doc. No. 83).

Any outstanding motion not specifically addressed in this order is rendered moot.

The Clerk is directed to close this case.

DONE AND ORDERED at Orlando, Florida, this 10th day of June, 2003.

PATRICIA C. FAWSETT
[signed]
UNITED STATES DISTRICT JUDGE

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