REPLY BRIEF OF APPELLANT, JANE ROE, II

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
REPLY BRIEF OF APPELLANT, JANE ROE, II

Appeal No. 00-10231-DD

In The UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

JANE ROE, II
Appellant,

vs.

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT,
MIDDLE DISTRICT OF FLORIDA, JUDGE PATRICIA FAWSETT,
NUMBER 99-00850-ORL-19A

REPLY BRIEF OF APPELLANT,
JANE ROE, II

CHRISTOPHER F. SAPP
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

AMENDED CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
(Omitted from Internet version)

NOTES OF RELATED CASES ON TRIAL LEVEL
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TABLE OF CONTENTS
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TABLE OF CITATIONS
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STATEMENT OF JURISDICTION

Jane Roe, II's interlocutory appeal is brought as an exception to 28 U.S.C. §1291, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949).

Contrary to Appellees' erroneous assertions, Jane Roe, II has made no waiver of her right to amend the Complaint in the event that the Court of Appeals should agree with the District Court's opinion that the Complaint fails to state a cause of action. This is not a final judgment appeal.

The present case is a classic instance of the correct use of the Collateral Order Doctrine, that is, taking a time-out in the case while the Court of Appeals is asked to protect Jane Roe, II with the anonymity to which she is entitled.

In accord with the U.S. Supreme Court decision in Coopers & Lybrand v. Livesay, 2454, 2458, 57 L. Ed2d 351 (1978), the elements required for Collateral Order review are strikingly present. The Order must, at a minimum:

1. Conclusively determine the disputed question.
2. Resolve an important collateral issue.
3. Be effectively unreviewable on appeal from final judgment.

Jane Roe, II had no choice. She was forced to bring this interlocutory appeal to protect her right to anonymity. And she has expressly reserved her right

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to amend the Complaint, if necessary, to state a cause of action. This was not the case in Briehler v. City of Miami, 926 F.2d 1001(11th Cir. 1991). There, this Court of Appeals determined at page 1003:

Although Briehler's notice of appeal is not precise as to its scope, in answer to this court's jurisdictional question Briehler made clear that he did not intend to amend his complaint.

Jane Roe, II has clearly stated just the opposite: she will amend her Complaint, if deemed necessary by this Court of Appeals, to state a cause of action.

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STATEMENT OF ISSUES

Some of the Appellees have attempted to interject the proposition that by seeking damages, Jane Roe, II can not remain anonymous.

The other Appellee seeks to interject an additional issue which has been dealt with in the Statement of Jurisdiction of this brief: that by not filing an amended complaint, Jane Roe, II has converted this appeal into one brought pursuant to 28 U.S.C. § 1291.

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STATEMENT OF THE CASE

The Order (Document 29) from which this appeal is taken gives Jane Roe, II no chance to amend the Complaint to state a cause of action and retain her anonymity. She was forced to bring this interlocutory appeal and she has stated specifically that she does not intend to stand on her complaint should this Court of Appeals rule that it fails to state a cause of action.

At page 12 of her initial brief, Jane Roe, II stated:

In the event that the U.S. Court of Appeals disagrees with the Plaintiff on this issue, she will file an amended complaint seeking to comply with the mandate of this Court.

It was to protect her right to amend her Complaint, that Jane Roe, II quickly filed her Notice of Appeal (Document 30) well before the expiration of the time "allowed" for filing an amended complaint to state a cause of action. This Notice of Appeal stopped the clock. (The quotations in the previous sentence around the word "allowed"are used because the price tag which the District Judge placed on amendment of the Complaint to state a cause of action was waiver of Jane Roe, II's carved-in-stone right to anonymity in this case.)

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STATEMENT OF THE FACTS

The rescue squad whom Jane Roe, II so badly needed and for whom she was screaming, was finally allowed to help her in the Aware Woman facility. During this forced delay, Dr. Egherman slashed repeatedly at Jane Roe, II's internal organs through her vagina and succeeded in stabbing her unborn child to death. Dr. Egherman did not remove the dead baby nor did he repair the extensive damage which he had caused to Jane Roe, II's uterus and colon. When Dr. Egherman says that he "completed the abortion procedure", then killing the baby and the internal mutilation of the mother were all that he needed to be paid his per capita fee.

The rescue team was, for a time, delayed in bringing their services to Jane Roe, II in this facility. Obviously, the rescue people were not wanted on the premises by the Appellees for the simple reason that their presence was bad for business. However, Jane Roe, II has made it plain that she needed their first aid, their referral information, and their help in getting to another facility where she could receive other reproductive health services.

Since the services of the "unwanted" rescue squad there in Aware Woman would include referral to those facilities at which Jane Roe, II could receive life- saving health care relating to the termination of her pregnancy, it was extremely critical that she receive their services as soon as possible and without the interference of Appellees.

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STANDARDS OF REVIEW

Appellees would have the Court of Appeals believe that there is discretion on the part of the District Judge to deny anonymity in a civil case brought by a woman concerning her abortion. This is a proposition for which no current authority can be found. To the contrary, the United States Supreme Court and every other Federal Court have in recent years permitted women seeking or obtaining abortions to remain anonymous. Appellees have apparently discovered no exception to this rule.

The test for anonymity in Doe v. Frank, 951 F. 2d 320 (11th Cir. 1992), must always be passed by abortion-recipient plaintiffs such as Jane Roe, II.

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ARGUMENT AND CITATIONS OF AUTHORITY

ANONYMITY

The Appellees have totally failed to present even a single case in which a trial judge forced a woman who sought or obtained an abortion to forfeit her anonymity in order to seek justice through civil litigation.

Appellees write that all cited abortion cases provided for anonymity - at least in part - for reasons other than the intense intimacy and privacy involved.

One of these cases is Doe v. General Hospital, 434 F. 2d 427 (1970). There was no threat to the Plaintiff in that case that she would be jailed if her true identity was revealed - contrary to Appellees' mistaken assertion. Ms. Doe just wanted the D.C. hospital to follow its own regulations.

And Appellees, at least, imply that Planned Parenthood v. Casey ( 112 S.Ct. 2791 (1992)), over-ruled the portions of Thornburg v. American College of Obstetricians (106 S.Ct. 2169 (1986)) quoted by Jane Roe, II in her first brief. This is not so. In fact, Casey (id) contains much the same description of Jane Roe, II's unique right at page 2807:

These matters, involving the most intimate and personal choices a person may make in a life-time, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

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The U.S. Supreme Court renews this concept at page 2832 of Casey (id):

In all events, the identity of each woman who has had an abortion remains confidential . . . [W]e held that recordkeeping and reporting provisions "that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible.

Does Jane Roe, II give up her anonymity if she seeks to recover damages from Appellees? Of course not. The case of Roe v. Little Company of Mary Hospital, 800 F.Supp 620 (N.D.Ill. 1992), shows that a suit for damages can be maintained by one in an embarrassing situation suing health care providers for damages.

Florida Statutes 455.667 and 395.3025 seem to indicate that a patients' health care records can be subpoenaed without her consent in civil actions. Both statutes specifically provide that this result will not occur where otherwise prohibited by law. Federal jurisprudence governing abortion cases clearly precludes the release of an abortion recipient's medical records without her consent. Casey (supra).

Another case of misdirection concerns the trial. No part of the media has objected to Jane Roe, II's anonymity for themselves or the public, contrary to the situation revealed in Richmond Newspapers v. Virginia, 448 U.S. 555, 65 L Ed 973, 100 S Ct 2814, where the U.S. Supreme Court found that there is a right to a public

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criminal trial.

Jane Roe, II believes that the trial can be public and at the same time, her true identity can be protected by the District Judge. She already agreed, at the case management hearing, to bear the extra expense of the proceedings incurred to protect her anonymity. As the U.S. Supreme Court said in Richmond Newspapers (supra) at page 992, when discussing possible closure of trials:

All of the alternatives admittedly present difficulties for trial courts, but none of the factors relied on here was beyond the realm of the manageable.

There is no authority which permits the trial judge to strip Jane Roe, II of her unique and extraordinary right to privacy at the request of the abortionist and his associates. Such infliction of certain degradation on women is not a matter of trial court discretion.

COMPLAINT

It is not unusual for an abortion provider to attempt to prevent entry in the facility by another person who can provide helpful services to abortion-minded women when such services are not ones which make the abortion facility more profitable.

A case on this point is found in Greenhut v. Hand, 996 F.Supp. 372 (D.N.J.1998), where an abortion clinic worker threatened a pro-life referral

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counselor with murder if she did not keep other pro-life persons away from the abortion facility. The trial judge ruled that this was a violation of F.A.C.E., saying at page 378:

Here, defendant did not inadvertently call a reproductive health care worker when making a "crank" call or speak disparagingly about Birthright for all to hear but intentionally targeted plaintiff because of her affiliation with Birthright and relayed statements which plaintiff could reasonably find to be threatening.

The trial judge in Greenhut (supra) was relying on the Court of Appeals, Eighth Circuit, which stated in U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996):

FACE would, for example, apply to anyone who blockades a clinic to prevent a woman from getting an abortion, even if the workers were carrying signs that said, "We are underpaid!" rather than "Abortion is wrong!" - - - Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions. At page 923.

In the present case, Jane Roe, II was wounded and knew it. She needed someone else to help her. She needed referral information immediately. But the Aware Woman parties plainly did not want her receiving anyone's reproductive health care services but their own.

Jane Roe, II's Complaint shows that the Plaintiff was physically prevented for a time from receiving the services of others which she desperately needed there in

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the Aware Woman facility. Since actions speak louder than words, the Appellees are shown to have intentionally violated 18 U.S.C. §248.

In the event that the Court of Appeals should disagree with the position of Jane Roe, II regarding her having pleaded a cause of action under F.A.C.E., she will promptly file an appropriate amended complaint.

CONCLUSION

Plaintiff must be allowed to proceed anonymously.

The Order granting the Motion to Dismiss entered in this case should be set aside and the case be allowed to proceed to trial, where determination of liability and damages will be had for the violations of 18 U.S.C. §248.

Alternatively, Jane Roe, II will amend her Complaint to state a cause of action to comply with the mandate of this Court.

Respectfully submitted,
Christopher F. Sapp (signed)
P. O. Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number 0097823
Attorney for Appellant

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CERTIFICATE OF SERVICE: I HEREBY CERTIFY that two true and correct copies of the foregoing have been furnished by U.S. Mail (priority service), postage prepaid, sent this 11th day of April, 2000 to Richard E. Ramsey, Esquire, Post Office Box 2753, Orlando, Florida 32802-2753 and to Andrew W. Menyhart, Esquire, Post Office Box 541739, Merritt Island, Florida 32954-1739 and the original and six copies were dispatched to the Clerk this date by U.S. Mail (priority service).

Christopher F. Sapp (signed)
Attorney

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