PETITION FOR WRIT OF CERTIORARI

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PETITION FOR WRIT OF CERTIORARI

No. 01-777

IN THE
SUPREME COURT OF THE
UNITED STATES

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation, EDWARD W. WINDLE, JR., PATRICIA B. WINDLE,

Petitioners,

JANE ROE, II,

Respondent.

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

PETITION FOR WRIT OF CERTIORARI

ANDREW W. MENYHART, ESQUIRE
ANDREW W. MENYHART, P.A.
160 McLeod Street
P.O. Box 541739
Merritt Island, FL 32954-1739
(321) 453-2221
Florida Bar No. 0961507
Attorney of Record for Petitioners
Aware Woman Center for Choice, Inc.
Edward W. Windle, Jr. and
Patricia B. Windle

QUESTION PRESENTED

Should any plaintiff in any case involving her abortion be permitted to proceed anonymously, as a matter of law, therefore establishing a per se rule of law automatically overcoming the constitutionally-embedded presumption of openness in judicial proceedings?

PARTIES TO THE PROCEEDING

"Petitioners"

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,

EDWARD W. WINDLE, JR., PATRICIA B. WINDLE

"Respondent"

JANE ROE, II

NOTE TO THE UNITED STATES SUPREME COURT ABOUT RELATED PETITIONER:*

*Dr. William P. Egherman, represented by separate counsel, also a co-defendant with Petitioners in the underlying case intends to file a Petition for Writ of Certiorari on this same issue; however there was a separate order denying Dr. Egherman's petition for rehearing that was not entered until September 4, 2001 and is attached in the Appendix hereto thereby establishing a separate filing deadline from Dr. Egherman's Petition for Writ of Certiorari.

OPINIONS BELOW

The opinion of the United States Court of Appeal for the Eleventh Circuit, Appeal No. 00-10231-DD is shown in Appendix A.

The opinion of the United States District Court in Jane Roe, II v. Aware Woman Center for Choice, Inc., et al., Case No. 99-850-CV-19-A is also shown in Appendix A.

STATEMENT OF JURISDICTION

The underlying 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. The decision of the District Court dismissing the cause of action was appealed to the United States District Court pursuant to 28 U.S.C. § 1291, who vacated and reversed the Court of Appeals. On August 2, 2001, Aware Woman Center for Choice, Inc.'s petition for rehearing was denied.

Jurisdiction is proper over this writ pursuant to 28 U.S.C. § 1254(1) because it is an appeal from a final decision of the United States Court of Appeals and is filed within 90 days of the Court of Appeal's denial for rehearing. Further, the United States Court of Appeals has decided an important question of federal law, that in effect has eroded deep rooted constitutional guarantees that must be addressed by this court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the eradication of the constitutionally-embedded presumption of openness in judicial proceedings encompassed in the First Amendment to The Constitution of the United States:

U.S. Const. Amend. 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

STATEMENT OF THE CASE

Jane Roe II ("Roe") brought an action in the United States District Court for the Middle District of Florida, Orlando Division, pursuant to the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248, ("FACE"). Roe claims 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.

The United States District Court for the Middle District of Florida, Orlando Division, dismissed the complaint with leave to amend because Roe failed to allege the requisite motive and intent on the part of defendants to interfere with or prevent her from obtaining reproductive health services. The district 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.

Roe waived her right to amend and filed an appeal of the dismissal of her complaint and the denial of her right to proceed anonymously. After briefs were submitted and oral argument completed, this court, on June 8, 2001, entered a decision upholding the well reasoned dismissal of the complaint by the district court but reversed the denial of Roe's motion to proceed anonymously finding the district court abused its discretion. This court then vacated the district court's dismissal of the complaint and remanded with instructions that the district court re-enter its order dismissing the complaint without prejudice, allowing amendment using an anonymous name within a reasonable period of time.

REASONS FOR GRANTING THE WRIT

The petition should be granted because the decision of the United States Court of Appeals, Eleventh Circuit, has decided an important question of Federal Law that has not been, yet should be, settled by this court. To permit any plaintiff in any case involving an abortion (civil or criminal), as a matter of law, to proceed anonymously without any required showing of facts or circumstances that necessitate the need for anonymity erodes the fundamental and long standing constitutionally embedded presumption of openness in judicial proceedings.

ARGUMENT

I. ANY PLAINTIFF IN ANY CASE INVOLVING AN ABORTION IS NOT, AS A MATTER OF LAW, ENTITLED TO ANONYMITY AND MUST BE REQUIRED TO DEMONSTRATE FACTS AND CIRCUMSTANCES WHICH NECESSITATE THE NEED FOR ANONYMITY TO OVERCOME THE CONSTITUTIONALLY-EMBEDDED PRESUMPTION OF OPENNESS IN JUDICIAL PROCEEDINGS.

Plaintiffs must disclose their names when they file a lawsuit. Fed.R.Civ.P. 10(a). The general rule is that parties to a lawsuit must identify themselves in their respective pleadings. Doe v. Frank, 951 F2d 320, 322 (llth Cir. 1992). This court recognized in Doe that the "rule serves more than administrative convenience. It protects the public's legitimate interest in knowing all the facts involved, including the identity of the parties". Id. at 322. Thus it is only appropriate in exceptional cases to allow a plaintiff to proceed anonymously. Id. at 323. A plaintiff may be allowed to proceed anonymously only if she has a substantial privacy right which outweighs the "customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. at 320.

Review of legal precedent authorizing the use of fictitious names for parties to proceed anonymously reveal certain common circumstances. See Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981); Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 E2d 707 (5th Cir. 1979). These circumstances and factors are (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose matters of 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.

The court of appeal's panel in its majority opinion in the instant case attempted to justify its decision, not upon Doe v. Frank, but rather reasoning that all prior cases that involved the issue of abortion were permitted to proceed anonymously because abortion is a matter of utmost intimacy. This reasoning is fundamentally flawed and contrary to this court's decision in Doe v. Frank and Doe v. Stegall, supra. Each case in which a plaintiff wishes to proceed anonymously, whether involving abortion or not, should be analyzed individually pursuant to the test set forth in Frank at 323 and Stegall at 185, supra. Judge Hill in his dissent points out the prior cases relied upon by the majority dealt with pregnant plaintiffs seeking to determine the constitutionality of laws or government policies outlawing or limiting the availability of abortions. A far different set of facts than is before the court in this case. See Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 959 (1973); Victoria W. v. Larpenter, 2001 WL 406334 (E.D. La. 2001); Doe v. Mundy, 514 F.2d 1179 (7th Cir. 1975); Doe v. Deschamps, 64 F.R.D. 652 (D. Mont. 1974); Doe v. General Hosp. of the Dist. Of Columbia, 434 F.2d 427 (D.C. Cir. 1970); Doe v. Dunbar, 320 F. Supp. 1297 (D. Colo. 1970)

It is undisputed Jane Roe II is not challenging governmental activity. She, by contrast, is seeking monetary damages against other private individuals who are being publicly accused of violations of Federal Law. Quite unlike prior "Doe" cases the plaintiff is seeking money damages against private individuals alleging injuries received during a medical procedure. This civil action is against private parties who stand publicly accused of

serious violations of federal law. While abortion may be private and in fact embarrassing, such privacy and embarrassment alone is insufficient to outweigh the presumption of openness in judicial proceedings. See Southern Methodist Univ. Ass'n v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979). (Defendant law firm 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).

There is no authority for granting plaintiff anonymity just because she will be required to reveal she underwent an abortion. While plaintiff had undergone an abortion procedure that alone should not be sufficient for a grant of anonymity. In fact, as the majority recognized, two circuit cases involving the issue of abortion have recently affirmed the denial of a party's motion to proceed anonymously. See M.M. v. Zavaras, 139 F.3d 798 (10th Cir. 1998); Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (6th Cir. 1981), rev'd in part on other grounds, 462 U.S. 416 (1983). As stated by Judge Hill in his dissent, "the decision to have an abortion may be a private one, I doubt that there is any danger or real threat of "social stigma" associated with that decision .... Absent such stigma the claim for privacy based upon a medical issue must be waived when one chooses a public forum to settle a private dispute."

The blanket rule of law that the majority opinion creates in this case is that any plaintiff in any case involving her abortion may proceed anonymously without exception. This rule said another way creates unequivocal exceptions to First Amendment guarantees of openness in

judicial proceedings and public scrutiny of judicial proceedings just because the plaintiff had an abortion. While the appellees recognize abortion is a private and intimate matter and there may be cases when anonymity would be appropriate, this is not such a case. The United States Court of Appeals' opinion forever excuses a plaintiff's burden of demonstrating how the privacy surrounding an abortion under the facts (Roe suing for money damages and accusing private individuals of serious violations of federal law) substantially outweighs the constitutionally embedded presumption of openness in judicial proceedings. To permit this rule of law to stand is to summarily restrict the public's access and scrutiny of judicial proceedings in any case which a woman is required to reveal she had an abortion whether it be a claim for malpractice, or any civil matter whatsoever. This court's ruling will permit the use of anonymity as a sword rather than a shield which is contrary to any legal precedent and contrary to the First Amendment of the United States Constitution.

CONCLUSION

Based on the foregoing, Aware Woman Center for Choice, Inc., Edward W. Windle, Jr. and Patricia B. Windle respectfully request that the court grant a Writ of Certiorari regarding this matter.

Respectfully submitted,

Aware Woman Center for Choice, Inc.,
Edward W. Windle, Jr., and
Patricia B. Windle, Petitioners

ANDREW W. MENYHART, ESQUIRE
ANDREW W. MENYHART, P.A.
160 McLeod Street
P.O. Box 541739
Merritt Island, FL 32954-1739
(321)453-2221
Florida Bar No. 0961507