PETITION FOR CERT. TO USSC BY JANE ROE, II

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PETITION FOR CERT. TO USSC BY JANE ROE, II

No. 00-1301

IN THE
SUPREME COURT OF THE
UNITED STATES

Jane Roe, II,

Petitioner,

Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle, and William P. Egherman, M.D.,

Respondents.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Christopher F. Sapp
Counsel of Record
505 Corinne Drive
Lehigh Acres, Florida 33936
(941) 368-3922

QUESTIONS PRESENTED

1. Is the issue "May a victim of an incomplete forced abortion sue the clinic for violation of the Freedom of Access to Clinic Entrances Act without revealing her real name to the public?" of such imperative importance as to justify deviation from normal appellate practice and to require immediate determination in this Court?

2. Is the issue "Was a cause of action under F.A.C.E. sufficiently pleaded where the complaint alleges the intent to violently obstruct an attempted-forced-abortion victim from leaving the clinic thus interfering with her attempt to get reproductive health services at another facility?" of such imperative importance it justifies deviation from normal appellate practice and requires immediate determination in this Court?

PARTIES TO THE PROCEEDING

"Petitioner"

Jane Roe, II

"Respondents"

Aware Woman Center For Choice, Inc., a Florida corporation, Edward W. Windle, Jr., Patricia B. Windle and William P. Egherman, M.D.

NOTE TO THE UNITED STATES SUPREME COURT ABOUT RELATED ELEVENTH CIRCUIT CASES:*

Prospective Petitioners: Ray Sienkiewicz of Sienkiewicz v. McDougall, and Sienkiewicz v. Hart, et al., U.S. Court of Appeals No's: 00-12634-II, 00-13805-II, and 00-14228-FF, F.A.C.E. actions for intimidating pro-life counselors with problems of judicial impropriety. Meredith T. Raney, Jr. in Raney v. City of Melbourne U.S. Court of Appeals No.: 00-11403-B. F.A.C.E. corollary to Raney v. Aware Woman.

Prospective Respondents: John McDougall in Sienkiewicz v. McDougall (1 and 2). Larry Hart, Janet Reno, William Clinton, Charles Wilson (of the Eleventh Circuit) and Jill Babyack in Sienkiewicz v. Hart. City of Melbourne, Florida in Raney v. City of Melbourne.

*The Petition For Writ of Certiorari has already been filed for Raney v. Aware Woman Center For Choice, Inc, et al., 224 F.3d 1266 (11^th Cir. 2000).

iii

TABLE OF CONTENTS

Questions Presented . . . . . . . . . . . . . . . . . . . . . i

Parties To The Proceeding . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . iii

Appendix Index . . . . . . . . . . . . . . . . . . . . . . . . iv

Table of Citations . . . . . . . . . . . . . . . . . . . . . . v

Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Jurisdiction . . . . . . . . . . . . . . . . . 1

Statutory Provisions Involved . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . . . . . . 3

A. Background . . . . . . . . . . . . . . . . . . . . . 3

B. The Proceedings Below . . . . . . . . . . . . . 4

Reasons for Granting the Writ . . . . . . . . . . . . . 5

First Reason: The issue, "May a victim of an incomplete forced abortion sue the clinic for violation of the Freedom of Access to Clinic Entrances Act without revealing her real name to the public?" is of such imperative importance that it justifies deviation from normal appellate practice and to require immediate deter-

mination in this Court?. . . . . . . . . . . . . . . . . . 5

Second Reason: The issue "Was a cause of action under F.A.C.E. sufficiently pleaded where the complaint alleges the intent to violently obstruct an attempted-forced-abortion victim from leaving the clinic thus interfering with her attempt to get reproductive health services at another facility?" is of such imperative importance it justifies deviation from normal appellate practice and requires immediate determination in this Court. . . . . . . . . . . . . . . .

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX INDEX

Appendix A . . . . . . . . . . . . . . . . . . . . . . 1a

TABLE OF CITATIONS

Cases: . . . . . . . . . Page

Cohen v. Beneficial Industrial Loan Corp,. . . . . . 1
337 U.S. 541, 69 S.Ct., 1221, 93 L.Ed. 1528 (1949)

Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . 9

Coker v. Georgia, 97 S.Ct. 2861 (1977) . . . . . . . 7

Doe v. Bolton, 410 U.S. 179(1973). . . . . . . . . . 7

Madsen v. Women's Health Center, Inc.. . . . . . 3,6
114 S.Ct. 2516 (1994)

Mitchell v. Forsyth, 105 S.Ct. 2806 (1985). . . . . . 1

Planned Parenthood v. Casey, . . . . . . . . . . . . . . 6
112 S.Ct. 2791 (1992)

Raney v. Aware Woman Center For Choice, . . . ii
Inc., 224 F.3d 1266 (11^th Cir. 2000)

Richmond Newspapers v. Virginia, . . . . . . . . . 7
448 U.S. 555, 100 S.Ct. 2814

Roe v. Wade, 35 L.Ed. 2d 147 (1973). . . . . . . . . 7

Stenberg v. Carhart, 147 L.Ed.2d 743 (2000). . . 7

Thornburgh v. American College of Obst.,. . . . . 6
106 S.Ct. 2169 (1986)

U.S. v. Dinwiddle, 76 F.3d 913 (8^th Cir. 1996) . . . 9

Federal Statutes

18 U.S.C. § 248 (F.A.C.E.). . . . . . . . . . . . . . . . 1,2,4,8,10

28 U.S.C. §1254 (1). . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. §1291. . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1331. . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1391(b). . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §2101(e). . . . . . . . .. . . . . . . . . .. . . . . . 2

Petitioner, Jane Roe, II, respectfully requests that a writ of certiorari be issued to review a case in the United States Circuit Court, Eleventh Circuit.

OPINIONS BELOW

The opinion of the District Court in Jane Roe, II, v.. Aware Woman Center For Choice, Inc., et al., Case No.:99-850-CV-19-A, is shown as Appendix A. At this time, there is no opinion from the United States Court of Appeals, Eleventh Circuit.

STATEMENT OF JURISDICTION

Jane Roe, II filed an action for violation of her civil rights under 18 U.S.C. §248 (Freedom of Access to Clinic Entrances Act) in U.S. District Court, Middle District of Florida, Orlando Division pursuant to 28 U.S.C.§1391(b) because the claim arose in that district and also because the defendants reside in that district. There is federal jurisdiction because her claim arises under the laws of the United States according to 28 U.S.C. §1331. Additionally, since this is an action to recover damages under an Act of Congress providing for the protection of civil rights, jurisdiction was proper in the district court, under 28 U.S.C. §1343(a)(4).

An appeal was taken to the United States Court of Appeals, Eleventh Circuit, under the collateral appeal doctrine as reviewed in Mitchell v. Forsyth, 105 S.Ct. 2806 (1985), and first approved in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.1528 (1949), as an exception to 28 U.S.C. §1291.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). Because judgment has not yet been rendered in the Court of Appeals, Jane Roe, II relies also on 28 U.S.C. § 2101(e) for jurisdiction.

STATUTORY PROVISIONS INVOLVED

This case involves the federal statute called Freedom of Access to Clinic Entrances Act, (F.A.C.E.) 18 U.S.C.§ 248, which states in pertinent part:

(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;

(1) Right of action.-

(A) In general.-Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action for the relief set forth in subparagraph (B), except that such an action may be brought under subsection (a)(1) only by a person involved in providing or seeking to provide, or obtaining or seeking to obtain, services in a facility that provides reproductive health services . . .

(e) Definitions.- As used in this section:

(1) Facility.- The term "facility" includes a hospital, clinic, physician's office, or other facility that provides reproductive health

services, and includes the building or structure in which the facility is located.

(2) Interfere with. - The term "interfere with" means to restrict a person's freedom of movement.

(4) Physical obstruction. - The term "physical obstruction" means rendering impassible ingress to or egress from a facility that provides reproductive health services . . .

(5) Reproductive health services.- The term "reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.

STATEMENT OF THE CASE

A. Background

The abortion clinic at 1564 Dixie Way received a great deal of notoriety in Melbourne, Florida when the United States Supreme Court approved a "buffer zone" injunction in its favor in Madsen v. Women's Health Center, Inc., 114 S.Ct. 2516 (1994).

The local police thereafter were most subservient and took part in a program effective at removing all persons not specifically approved by the abortion clinic from the buffer zone sidewalk. The personae non grata included pro-life

referral counselors with up-to-date information about the hazards at that particular clinic and about alternative resources for pregnant women in the immediate area.

While Jane Roe, II had been a customer of this particular clinic before, she was not warned of its post-Madsen assembly line procedures and the increasing number of serious injuries to its female patients. Un-warned, Jane Roe, II did not learn of the new, brutal practices until it was too late. She was pinned violently to the table by four assistants after ordering the abortionist to stop; he then proceeded to jab through her vagina, severely slashing her uterus and colon, and killing - but not removing the unborn child - in the process.

After some delay, a rescue squad was permitted to take Jane Roe, II to an emergency room where she underwent major surgery and where the dead child was removed from her uterus.

B. The Proceedings Below.

Using the fictitious name of Jane Roe, II the Petitioner sued William P. Egherman, M.D., Aware Woman Center For Choice, Inc. and its owners and operators (jointly called Aware Woman) .for a violation of Freedom of Access to Clinic Entrances Act (F.A.C.E.). She was unlawfully and forcefully prevented from exiting the abortion clinic at 1564 Dixie Way, Melbourne, Florida in her attempt to avoid a brutal, life-threatening abortion at Aware Woman and was physically obstructed because she wanted to obtain other reproductive services; not only those of the rescue squad there at Aware Woman, but also those at the local hospital emergency room.

Jane Roe, II filed her Complaint in the Middle District of Florida, Orlando Division. Aware Woman responded with

motions to dismiss the Complaint.

Later, at the case management meetings, Aware Woman objected to Jane Roe, II's proceeding anonymously, although they admitted knowing her real identity.

As a result of this objection, a case management hearing was held by the Magistrate Judge who directed Jane Roe, II to file a motion to proceed anonymously; she complied with this instruction.

The District Judge thereafter entered an order dismissing the Complaint, with conditional leave to file an amended complaint, and denied the motion to proceed anonymously. The condition for amendment: forfeiture of anonymity. Notice of appeal was then timely filed.

After all briefs had been filed with the U.S. Court of Appeals, Eleventh Circuit, oral argument was set for August

31, 2000. Argument was then postponed until November 3, 2000, when all parties hereto addressed the panel of the circuit court. No decision has been received at this time.

This Petition is thus filed more than three months after appellate oral argument.

REASONS FOR GRANTING THE WRIT

The Petition should be granted because the issue, "May a victim of an incomplete forced abortion sue the clinic for violation of Freedom of Access to Clinic Entrances Act without revealing her real name to the public?" is of such imperative importance it justifies deviation from normal appellate practice and requires immediate determination in this Court.

To the best of our knowledge, there is not a single case in which a federal judge has required that a woman who sought or obtained an abortion must forfeit her anonymity in order to obtain justice by way of civil litigation - with one exception: the present case.

The need for protection of unsuspecting young women from the various dangers in abortion clinics grows more imperative. All across this land, as are seen in the related cases, the independent referral counselors have been unlawfully barred from the doorways of abortion clinics where they could warn girls about such mortal hazards. These violations have resulted in an unknown number of deaths and injuries. This case may well be representative of a nationwide plague of violence, violence which is rarely reported because of the doubly embarrassing nature of the incidents, and violence which is rarely punished.

The lack of prosecution for forced abortion is probably due to confusion about exactly what law is violated, to the unwillingness of the victim to come forward , and often because, as in Melbourne, Florida, the justice system has become so subservient to abortion clinics.

While the United States Supreme Court inadvertently placed Aware Woman on a pedestal in Madsen v. Women's Health Center,Inc., 114 S.Ct. 2516 (1994), this Court has always been most plain when describing a woman's right to privacy in an abortion-setting: "The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity." Thornburgh v. American College of Obst,. 106 S.Ct. 2169 (1986) at page 2181.

The concept of privacy, and anonymity regarding the abortion dilemma, was also discussed by this Court in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992) at page

2832: "In all events, the identity of each woman who has had an abortion remains confidential."

This Court has also addressed the horrors visited upon a rape victim, when in Coker v. Georgia, 97 S.Ct. 2861 (1977), it stated at page 2869:

It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self".

Jane Roe, II now understands that the term "forced abortion" could be substituted for the word "rape" in the Coker (supra) analysis without changing the description in any way.

Moreover, there has been no objection by the press or public to Jane Roe, II's anonymity, only that of the Aware Woman parties. Still it is useful to visit this Court's decision in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, which concerned the right to a public criminal trial. In discussing possible closure of trials, this Court stated, "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". 65 L.Ed.2d at 992. So it is in Jane Roe, II.

This Court has steadfastly proclaimed its concern for women's lives and health in abortion cases from Roe v. Wade, 35 L.Ed.2d 147(1973), and Doe v. Bolton, 410 U.S.179(1973) to Stenberg v. Carhart, 147 L.Ed.2d 743(2000), all the while holding that reproductive choices are options derived from a woman's basic right to privacy, privacy which is obliterated if not protected by anonymity.

The Petition should be granted because the issue, "Was a cause of action under F.A.C.E. sufficiently pleaded where the complaint alleges the intent to violently obstruct an attempted-forced-abortion victim from leaving the clinic thus interfering with her attempt to get reproductive health services at another facility?" is of such imperative importance it justifies deviation from normal appellate practice and requires immediate determination in this Court.

There is no doubt that effective use of F.A.C.E. by young women seeking reproductive health services is essential to protect them from violence and interference. It should not matter to the courts whether the violence emanates from pro-life sources or from pro-abortion sources. Unfortunately, this is not true.

A reading of the trial and appellate orders in the related cases, and the district judge's decision here, shows a partisan inclination to protect the abortion industry at the expense of young women and their benefactors: facts are misstated and the law, especially F.A.C.E., is twisted and misconstrued.

For example, a court of appeals discussed the motive requirement of F.A.C.E. as follows:

FACE's motive requirement does not discriminate against speech or conduct that expresses an abortion-related message. 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. U.S. v. Dinwiddie, 76 F.3d 913 (8^th Cir. 1996) at page 923.

Jane Roe, II respectfully suggests to the Court that F.A.C.E. also protects women from conduct which interferes with their right not to choose abortion.

Jane Roe, II has stated in her complaint how at the beginning of the abortion, she knew that it was being done incorrectly. She demanded that the abortionist stop. Instead, she was violently pinned to the table by four assistants while the doctor tried to force her to undergo the abortion. Further, the record shows that while he succeeded in killing the unborn child, the abortionist did not remove it and that Jane Roe, II's uterus and colon were severely slashed.

Whether this savage treatment of Jane Roe, II flows from a sadistic nature, from greed or some perversity, she does not know. She does know that the Aware Woman people intentionally prevented her from receiving independent help from the rescue squad there at Aware Woman and they obstructed her exit from Aware Woman and entry to another facility, seeking other necessary reproductive health services. These services included removal of the dead baby and massive internal surgery. Nothing more should be required to show a most serious F.A.C.E. violation of Jane Roe, II's civil rights.

The Complaint passes the test in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80(1957): it states facts on which relief can be granted. However, should this Court determine that amendment of the Complaint is necessary, then Jane Roe, II suggests that there should be no condition requiring her to first surrender her privacy/anonymity as the ticket price for entry into the legal arena.

It is critical that the young women of this nation be allowed the liberal use of F.A.C.E. to protect them from violence in abortion clinics, regardless of the source of such danger.

CONCLUSION

Jane Roe, II, respectfully requests that this Court grant a writ of certiorari in order to protect women's right to privacy and to safeguard the millions of pregnant girls and young women who, when dealing with crisis pregnancies, need protection from violence. The United States Supreme Court should review this case because it is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.

Respectfully submitted,
Christopher Sapp (signed)
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Attorney for Petitioner