ABORTION INDUSTRY IN MELBOURNE, FLORIDA
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
BRIEF OF APPELLEES, AWARE WOMAN, EDWARD WINDLE, AND PATRICIA WINDLE
Appeal No. 00-10231-DD
In The UNITED STATES COURT OF APPEALS
JANE ROE, II
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., PATRICIA B. WINDLE, and
WILLIAM P. EGHERMAN, M. D.
APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
BRIEF OF APPELLEES, AWARE WOMAN CENTER FOR CHOICE, INC, EDWARD W. WINDLE, JR. AND PATRICIA B. WINDLE
ANDREW W. MENYHART, Esquire
ANDREW W. MENYHART, P.A.
160 McLeod Street
P.O. Box 541739
Merritt Island, FL 32954-1739
Florida Bar No. 0961507
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Eleventh Circuit Rule 26.1-1, the undersigned counsel for Aware Women Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle certifies that the following listed persons, firms, partnerships and corporations have an interest in the outcome of this case:
Aware Woman Center for Choice, Inc. - Appellee;
Egherman, William P., M.D. - Appellee;
Fawsett, Patricia - United States District Judge for the Middle District of Florida;
Menyhart, Andrew W. - Attorney for Appellees Aware Woman Center For Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle;
Ramsey, Richard E. - Attorney for Appellee William P. Egherman, M.D.;
Roe, Jane, II - Appellant;
Sapp, Christopher F. - Attorney for Appellant;
Spaulding, Karla - Magistrate Judge for the United States District Court for the Middle District of Florida
Windle, Edward W., Jr. - Appellee;
Windle, Patricia B. - Appellee;
STATEMENT REGARDING ORAL ARGUMENT
Aware Woman Center for Choice, Inc, Edward W. Windle, Jr., and Patricia B. Windle hereby request oral argument because this case involves an attempt to greatly expand the reach of a federal statute beyond that which was intended and thus raises an important question of federal law.
TABLE OF CONTENTS
(Omitted from Internet version)
TABLE OF CITATIONS
|Alachua General Hospital, Inc., 649 So. 2d 357 (Fla. 1st DCA 1995)||24|
|Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97 (5th Cir. 1974)||11|
|Briehler v. City of Miami, 926 F.2d 1001 (11th Cir. 1991)||19|
|Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995)||13, 14|
|Doe v. Frank, 951 F.2d 320 (11th Cir. 1992)||11, 20, 21, 22|
|Doe v. General Hospital, 434 F.2d 427 (D.C. Cir. 1970)||23|
|Doe v. Mundy, 514 F.2d 1179 (7th Cir. 1975)||23|
|Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981)||20, 21, 22|
|Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991), cert. denied, 502 U.S. 810 (1991)||11|
|Gersten v. Rundle, 833 F. Su, Pthp. 906 (S.D. Fla. 1993) aff'd 56 F.3d 1389 (11 Cir. 1995), cert. denied, 516 U.S. 1118(1996)||11|
|Greenhut v. Hand, 996 F. Supp. 372 (D.N.J. 1998)||15|
|Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L. Ed. 2d 674 (1992)||23|
|Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed. 2d 147 (1973)||23|
|Schuuman v. Motor Vessel "Betty K V", 798 F.2d 442 (11th Cir. 1986)||18, 19|
|Southern Methodist Univ. Ass'n v. Wane & Jaffe, 599 F.2d 707 (5th Cir. 1979)||20, 21, 23|
|Thornburgh v. American College, 476 U.S. 747, 106 S.Ct. 2169, 90 L. Ed. 2d 779 (1986)||22|
|United States v. Dinwiddie., 76 F.3d 913 (8th Cir. 1996), cert. denied, 519 U.S. 1043 (1996)||15, 16|
|United States v. Pemco Aeroplex, Inc., 195 F.3d 1234 (11th Cir. 1999)||10|
|United States v. Scott, 958 F. Supp. 761 (D. Conn. 1997)||15|
|United States v. Wilson, 2 F. Supp. 2d 1170 (E.D. Wisc. 1999) aff'd United States v. Balint, 201 F.3d 928 (7th Cir. 2000)||14, 15|
|18 U.S.C. § 248||8, 13, 14|
|28 U.S.C. § 1291||6|
|28 U.S.C. § 1331||6|
|FLA. STAT. § 95.11||18|
|FLA. STAT. § 794.011(1)(h)||24|
|FLA. STAT. § 794.026||24|
|Other Authorities Cited|
|Fed. R. Civ. P. 10(a)||20|
|S.Rep. No. 117, 103 Cong. 1st Sess. 3 (1993)||14|
Page 4, 5
STATEMENT OF JURISDICTION
This action was brought seeking relief under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. The action was filed in the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1331, governing civil actions arising under the laws of the United States.
This court has jurisdiction over this appeal, pursuant to 28 U.S.C. § 1291, because it is an appeal from a final decision of the United States District Court for the Middle District of Florida, Orlando Division.
STATEMENT OF THE ISSUES
I. Did the district court correctly dismiss Jane Roe II's complaint where the allegations of the complaint failed to show that defendants acted with the intent and motive to prevent Roe from obtaining reproductive health services?
II. Did the district court correctly deny Jane Roe II's motion to proceed anonymously where she instituted an action for money damages due to injuries received during a medical procedure?
STATEMENT OF THE CASE
This case is brought pursuant to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248, ("FACE"). Jane Roe II ("Roe") claims that Aware Woman Center for Choice, Edward W. Windle, Jr., Patricia B. Windle; (collectively "Aware Woman'') and William Egherman, M.D., violated FACE when they took measures to protect her health during an abortion procedure where complications developed.
Course of Proceedings and Disposition Below
On July 9, 1999, Roe filed her complaint in the United States District Court for the Middle District of Florida, Orlando Division. (R-A-3) The complaint alleged that Aware Woman and Dr. Egherman violated FACE on March 29, 1997 when they restrained her during an abortion procedure where complications had developed. (R-l) Roe sought compensatory and punitive damages in excess of one million dollars. (R-l- 5)
Dr. Egherman and Aware Woman filed motions to dismiss the complaint on August 3, 1999 and August 16, 1999, respectively. (R-A-3) These motions were based on the fact that the allegations of the complaint did not state a claim under FACE. (R- 8 and R-12) Aware Woman also filed a motion to strike redundant, immaterial, impertinent and scandalous matters from Roe's complaint. (R-14) Tiffs motion was based on Roe's repeated use
of inflammatory statements related to the abortion procedure and clinic personnel. (R- 14)
Roe initially filed the complaint using a pseudonym. Thereafter, on November 11, 1999, at the direction of the Magistrate Judge, Karla R. Spaulding, Roe filed a motion to proceed anonymously. (R-24)
On January 3, 2000, the district court dismissed the complaint, with leave to file an amended complaint, because Roe failed to allege the requisite intent and motive on the part of the defendants to interfere with or prevent her from obtaining reproductive health services. (R-29-5 through 12) The court also denied Roe's motion to proceed anonymously, finding that Roe's privacy concerns did not outweigh the "presumption of openness in judicial proceedings." (R-29-12 through 14) Finally, the court denied, as moot, Aware Woman's motion to strike, but cautioned Roe to comply with the Federal Rules of Civil Procedure requiring a short and plain statement of the claim in the event an amended complaint was filed. (R-29-14)
Despite being granted leave to amend her complaint, Roe chose not to do so. She filed her notice of appeal on January 12, 2000. (R-30)
Statement of Facts
On March 29, 1997, Roe voluntarily came to the Aware Woman clinic to have an abortion. (R-l-3) This was Roe's third abortion at the Aware
Woman clinic. (R-l-3) When Roe arrived she went through the normal check-in process prior to the procedure. (R-l-3), During the procedure, complications arose. (R- l-3) Roe requested that an ambulance take her to a local hospital emergency room. (R- l-4) Dr. Egherman and the other clinic personnel continued to provide medical care to Roe in response to the complications that arose. (R-l-4) In addition, an ambulance was called to take Roe to a local hospital emergency room. (R-l-4) Roe was taken to the emergency room where she received further treatment. (R-1-4)
Roe alleged in her complaint that "all of the defendants" violated FACE because they prevented Roe's egress from the clinic during the abortion procedure after the complications had developed. (R-l-4 through 5). Roe further alleges defendants unlawfully interfered with, intimidated and used physical obstruction to render her desired egress from the facility impassible. (R-l-4 through R-5)
Standard of Review
This court's review of the district court's dismissal for failure to state a claim is de novo, applying the same standard used by the district court. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999). A court must accept the allegations set forth in the complaint as tree for purposes of a motion to dismiss. Id. However, conclusory allegations and unwarranted
factual deductions are not accepted as true. Gersten v. Rundle, 833 F. Supp. 906, 910 (S.D. Fla. 1993), aff'd 56 F.3d 1389 (l lth Cir. 1995), cert. denied, 516 U.S. 1118 (1996) (citing Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)). "When on the basis of a dispositive issue of law, no construction of the factual allegations of the complaint will support the cause of action, dismissal of the complaint is appropriate." Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991), cert. denied 502 U.S. 810 (1991).
A district court's decision denying a party the fight to proceed anonymously may only be reversed upon showing an abuse of discretion. Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992).
SUMMARY OF THE ARGUMENT
Roe is attempting to use the federal FACE statute to recover damages for alleged medical malpractice when such a malpractice action is without merit and time-barred. FACE is intended to protect a woman's right to obtain an abortion and protect the people who provide these procedures. Thus, to violate FACE requires a defendant to physically obstruct another with the intent of interfering with entrance to or egress from a clinic for the express purpose of preventing an abortion. The facts giving rise to this lawsuit do not support the conclusion that the defendants' acts were taken to interfere with Roe's right to have an abortion. Rather, the acts were intended to ensure the health and safety of a patient during an abortion procedure where complications had developed. FACE is not applicable in such circumstances and the district court correctly dismissed the complaint.
Roe is not entitled to proceed anonymously merely because this case involves an abortion. Anonymous proceedings are only justified where a substantial privacy right of the plaintiff outweighs the presumption of openness of judicial proceedings. Revelation of personal, private matters that may cause embarrassment, standing alone, does not outweigh the presumption of openness in judicial proceedings. The district court was within its discretion in denying Roe's motion to proceed anonymously.
ARGUMENT AND CITATIONS OF AUTHORITY
I. THE DISTRICT COURT CORRECTLY DISMISSED THE COMPLAINT BECAUSE NO CONSTRUCTION OF THE FACTS IN THE COMPLAINT WOULD SUPPORT A FINDING THAT AWARE WOMAN, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE AND DR. EGHERMAN ACTED WITH THE INTENT AND MOTIVE NECESSARY TO VIOLATE FACE.
A. Freedom of Access to Clinic Entrances Act
This action was brought pursuant to the Freedom of Access to Clinic Entrances Act of 1994 ("FACE'). 18 U.S.C. § 248. FACE provides in relevant part as follows:
(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;
. . .
shall be subject to the penalties provided in subsection (b)
and the civil remedies provided in subsection (c) ....
In Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995), this court recognized that Congress passed FACE "in response to increasing incidents of violence
and obstruction at abortion clinics." Cheffer, 55 'F.3d at 1519. The acts of violence noted by Congress "included at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic 'invasions,' and one murder." S.Rep. No. 117, 103 Cong. 1st Sess. 3 (1993). The stated purpose of the act is "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." Cheffer, 55 F.3d at 1519.
B. The Elements of a FACE Claim
In interpreting FACE, courts have discerned three elements necessary to establish a violation of the statute. The first element requires that the defendant physically obstruct, or attempt to obstruct, someone's access to a reproductive health facility. United States v. Wilson, 2 F. Supp. 2d 1170, 1171 (E.D. Wisc. 1999) aff'd United States v. Balint, 201 F.3d 928 (7th Cir. 2000). The second element requires that the defendant intend by his obstruction to "interfere with or attempt to interfere with persons attempting to gain entrance or egress to said clinic." Id. at 1171. The third element called
the motive element requires that the Defendants intentional interference or attempt to interfere with persons entering or exiting the clinic be done for the expressed purpose of preventing such person(s) from obtaining reproductive health services. Id.
Roe alleges in her complaint that the defendants prevented her from leaving the clinic by restraining her during the abortion procedure. The district court found that viewing this allegation in favor of the plaintiff, it alleged facts sufficient to show that her egress from the clinic had been obstructed; however, the court correctly determined that this element alone cannot support a violation of FACE. (R-29-11 through 12)
Regarding the second and third elements of a FACE claim, the intent to interfere with entrance or egress to a clinic must be with the "express purpose of preventing such persons from obtaining or providing reproductive health services." Wilson, 2 Fd. Supp. 2d at 1171. Courts have noted that this motive requirement makes FACE unique in that most criminal statutes require only an Act and an intent to so act. See United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996), cert. denied 519 U.S. 1043 (1996); Wilson, 2 F. Supp. 2d 1170; United States v. Scott, 958 F. Supp. 761 (D. Conn. 1997).
The motive requirement of FACE was explained by the court in Dinwiddie as follows:
What FACE's motive requirement accomplishes is the perfectly constitutional task of filtering out conduct that Congress believes need not be covered by a federal statute. Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions. See H.R.Rep. No. 306, at 12; S.Rep. No. 117, at 23. FACE's motive requirement targets this conduct while ensuring that FACE does not federalize a slew of random crimes that might occur in the vicinity of an abortion clinic.
Dinwiddie, 76 F.3d at 923. The court likened FACE's motive requirement to the motive requirement of Title VII of the Civil Rights Act of 1964 which requires an employer's discriminatory act be "because of [the employee's] race, color, religion, sex or national origin." Id. Discrimination without the requisite motive does not violate Title VII. Likewise, obstruction without the requisite motive does not violate FACE.
C. Roe's Complaint
In this case, Roe has failed to allege Dr. Egherman's and Aware Woman's acts were intended to interfere with Roe's egress fiom the clinic in order to prevent her from obtaining an abortion. (In fact the complaint does not contain a specific allegation as to Edward W. or Patricia B. Windle other than they controlled the clinic). To the extent that Roe was restrained it was not intended to interfere with her leaving the clinic but rather to prevent further harm to her during the procedure. The defendants' purpose was not to prevent
her from obtaining an abortion or reproduction health services but to enable the doctor to complete the voluntary abortion procedure that had already begun and address the medical complications that had developed. This intent and motive is demonstrated in Roe's complaint by the allegation that at, er the complications arose clinic personnel and the doctor were attempting to insert an IV and otherwise provide medical treatment. The only reasonable inference from the facts alleged in the complaint is that Dr. Egherman and the clinic personnel were faced with a medical emergency and were taking those steps necessary to protect the safety of the patient. Roe's conclusion that the defendants' acts were intended to prevent her from leaving the clinic and obtaining an abortion elsewhere simply is not reasonable and in fact is nowhere alleged in the complaint. The acts were clearly intended to protect the health and safety of Roe during an abortion procedure, not prevent her from obtaining an abortion.
FACE is intended to protect abortion providers and patients against violence and threats of violence from persons who want to prevent abortions. Roe's complaint is an attempt to use FACE as a sword against people providing reproductive health services, the very people it was intended to protect. Roe was in the process of obtaining an abortion. Aware Woman and Dr. Egherman were in the process of providing the abortion. No one involved
in the process had any motive to prevent Roe from obtaining the abortion. Thus, FACE clearly does not apply and cannot be invoked in this manner.
At most, Roe is alleging that the medical care she received at the clinic resulted in her injuries. In other words, she claims medical malpractice. FACE clearly was not intended to federalize the medical malpractice field. Medical malpractice is one of the "slew of random [acts]" that might occur at an abortion clinic that were not intended to fall within the prohibitions of FACE. Thus, the district court was correct when it dismissed Roe's complaint and its decision should be affirmed.
Roe comments on page twelve of her brief that in the event the court agrees that the dismissal was proper, she is going to proceed to file an amended complaint. In granting the motion to dismiss the district court granted Roe leave to amend her complaint; however, Roe chose not to take advantage of this right to amend but rather stood on her original complaint and filed this appeal. As explained by this court in Schuurman v. Motor Vessel "Betty K V", 798 F.2d 442, 445 (11th Cir. 1986), an order dismissing a
complaint but granting time in which to amend the complaint may be treated as a final order by the plaintiff and appealed immediately, even before the time in which to amend has expired. However, once the plaintiff chooses to appeal, the right to later amend the complaint has been waived. Schuurman, 798 F.2d at 445. See also Briehler v. City of Miami, 926 F.2d 1001 (11th Cir. 1991) (holding that plaintiff waives the right to later amend by treating dismissal as final and filing notice of appeal before the expiration of the amendment period). Thus, Roe has clearly waived any right to later amend her complaint by filing this appeal.
II. THE DISTRICT COURT CORRECTLY DENIED ROE'S MOTION TO PROCEED ANONYMOUSLY BECAUSE THE PRESUMPTION OF OPENNESS IN JUDICIAL PROCEEDINGS IS NOT OVERCOME BY ROE'S ALLEGED PRIVACY INTERESTS.
Roe filed a motion to proceed anonymously in this matter, alleging that information of the "utmost intimacy" would be disclosed during the proceeding. (R-29) Reasonably, the information of the "utmost intimacy" which would be disclosed is the fact that Roe was allegedly injured during an abortion procedure.
Any review of a motion to proceed anonymously must begin with the general role that parties to a lawsuit must identify themselves in their
respective pleadings. Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992)..See Fed. R. Civ. P. 10(a) (requiting a complaint to include the names of all parties). This court recognized in Doe v. Frank that the "rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." Frank, 951 F.2d at 322. Thus, it is only appropriate in exceptional cases to allow a plaintiff to proceed anonymously. Id. at 323.
The ultimate test in determining whether the plaintiff may proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings. Id. See also Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981). Review of the cases authorizing the use of fictitious names for parties who proceed anonymously reveals certain common circumstances..See Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981); Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979). These circumstances are: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323, citing Stegall, 653 F.2d at 185. These factors are not
intended as a rigid, three-step test, but are highlighted as factors deserving consideration. Frank, 951 F.2d at 323.
In Wynne & Jaffe, the plaintiffs included certain individual attorneys who wished to proceed anonymously in the sex discrimination lawsuit filed against a local law firm. The attorneys alleged that they would suffer socially and economically if it was generally known that they were party plaintiffs to the lawsuit. Wynne & Jaffe, 599 F.2d at 711. In denying the motion to proceed anonymously, the court noted that prior cases authorizing anonymity involved parties challenging the constitutional, statutory or regulatory validity of governmental action. In contrast, this case involved a civil action against another private party where "the mere filing of [such an action] against other private parties may cause damage to their good names and reputation and may also result in economic harm." Id. The Court recognized that the Defendant law firms stood publicly accused of serious violations of federal law and basic fairness dictated that defendants' accusers who wished to participate in the suit as individual party plaintiffs must do so under their real names. Id.
In Stegall, the issue raised was the constitutionality of prayer and Bible reading exercises in schools. The court held that the challenge to the governmental activity relating to religion, as well as evidence of harassment and violent reprisals, satisfied the conditions necessary to proceed
anonymously. Stegall, 653 F.2d at 186. The court also noted as significant that the plaintiffs in this case were children. Id.
In Frank, supra, the plaintiff sued his employer for employment discrimination, claiming he was wrongfully fired because of his alcoholism. It was the fact that he was an alcoholic that the plaintiff advanced as the substantial privacy interest worthy of protection. However, this court held that the fact that one may suffer some personal embarrassment, standing alone, does not justify proceeding under a pseudonym. Frank, 951 F.2d at 324. In so ruling, this court held that:
Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassment is not enough. This case does not present such an unusual situation in which the need for party anonymity outweighs the presumption of openness. Therefore, the district court did not abuse its discretion in denying Doe's motion.
Frank, 951 F.2d at 324.
In this case, Roe alleges that because the suit involves alleged injuries received during an abortion procedure, anonymity should be allowed. There is certainly no rule that all cases involving abortion may proceed anonymously. Roe relies on the case of Thornburgh v. American College, 476 U.S. 747, 106 S.Ct. 2169, 90 L. Ed. 2d 779 (1986), to support her position that abortion cases
must proceed anonymously. First, this case has been overruled by Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L. Ed. 2d 674 (1992). Second, the issue in Thonburgh was not whether a party could proceed anonymously in a lawsuit filed in the federal courts but rather the validity of state reporting requirements related to abortions. The fact that the Court has recognized that abortion validity be a private matter, as may be any medical procedure, does not require that parties to a lawsuit involving abortion be allowed to proceed anonymously.
Those cases involving abortion that have proceeded anonymously, e.g. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed. 2d 147 (1973), Doe v. Mundy, 514 F.2d 1179 (7th Cir. 1975), Doe v. General Hospital, 434 F.2d 427 (D.C. Cir. 1970), involved a challenge to governmental activity that required the plaintiff to admit to engaging in illegal activities, in addition to revealing the fact that the plaintiff requested or had an abortion. Wynne & Jaffe, 599 F.2dat 713.
Quite unlike the above cases, Roe is seeking money damages against private individuals alleging injuries received during a legal medical procedure. This civil action is against other private parties who stand publicly accused of serious violations of Federal Law and basic fairness dictates defendants' accuser must participate in this suit under her real name. While it may be
embarrassing to admit to an abortion, such embarrassment is not enough to outweigh the presumption of openness in judicial' proceedings. This is especially true where the allegations of the lawsuit impugn the professional reputations of private individuals engaged in lawful activity and whose identities are fully exposed by the plaintiff's lawsuit.
Furthermore, Roe's argument that the medical care she received during the abortion constituted a sexual battery is completely without merit. Sexual battery does not include an act done for a bona fide medical purpose. FLA. STAT. § 794.011(1)(h) (1999). Any argument that the defendant's actions were for other than a bona fide medical purpose is simply not reasonable. Roe's attempt to characterize this incident as a rape is merely another attempt to introduce inflammatory material into this matter.
In addition, the statute Roe points to as requiring that the names of sexual battery victims remain confidential specifically applies only "prior to open judicial proceedings." FLA. STAT. § 794.026 (1999). Thus, it is not contemplated that proceedings for sexual battery would proceed anonymously.
Finally, Roe's claim of physician-patient privilege is also without merit. Roe put her condition and the procedure in issue when she filed the lawsuit. Such action waives any claim to privilege. See Alachua General Hospital, Inc., 649 So. 2d 357 (Fla. 1st DCA 1995).
The district court acted well within its discretion in denying Roe's motion to proceed anonymously. The district court's decision should be affirmed.
Based on the foregoing, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle respectfully request that the court affirm the decision of the district court.
Aware Woman Center for Choice, Inc.,
Edward W. Windle, Jr., and Patricia B. Windle, Appellees
Andrew W. Menyhart, Esquire (signed)
160 McLeod Street
P.O. Box 541739
Merritt Island, FL 32954-1739
Florida Bar No. 0961507
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U.S. Mail this 27th day of March, 2000 to Christopher F. Sapp, Esq., Attorney for Plaintiff, P. O. Box 1012, Lehigh Acres, FL 33970 and Richard E. Ramsey, Esq., Attorney for Defendant, William Philip Egherman, M.D., P. O. Box 2753, Orlando, FL 32802-2753.
Andrew W. Menyhart, Esquire (signed)
ANDREW W. MENYHART, P.A.
Attorney for Defendants, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle
160 McLeod Street
P.O. Box 541739
Merritt Island, FL 32954-1739
Florida Bar No. 0961507
 A "reproductive health facility" includes a hospital, clinic, physician's office, or other facility that provides reproductive health services. 18 U.S.C. § 248 (e)(1).
 The elements of a cause of action under FACE are the same whether criminal or
civil remedies are being pursued. Greenhut v. Hand, 996 F. Supp. 372, 378 n.4 (D.N.J. 1998).
 Aware Woman adamantly maintains that the care Roe received at the clinic met the standard of care required of doctors, clinics, and other personnel performing abortion procedures and that any malpractice claim by Roe is completely without merit. Furthermore, any malpractice claim would be barred by the applicable statute of limitations set forth in FLA. STAT. § 95.11, which may explain Roe's use of a clearly inapplicable federal law to seek damages.
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