ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
SMITH V MCDOUGALL
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CASE NO.: 99-385-CIV-FTM-21

ROBERT SMITH and
RAY SIENKIEWICZ,
Plaintiffs,
v.
JOHN McDOUGALL, individually and as
SHERIFF OF LEE COUNTY, FLORIDA, et. al.
Defendant.

PLAINTIFF'S RESPONSE TO MOTION TO DISMISS

Robert Smith and Ray Sienkiewicz, Plaintiffs, by and through their undersigned attorney, hereby respond to the Motion To Dismiss, saying:

BACKGROUND

1. On or about May 22, 1997, several representatives were sent by the Defendant, John McDougall, to the sidewalk in front of the Ali Azima abortion clinic in North Fort Myers, Lee County, Florida to deliver a message to the public: it is lawful for a pro-life counselor to provide referral information at the entrance to this abortion clinic. A copy of a photograph of that occasion is attached hereto for reference as Exhibit "A'. The Plaintiffs and many other persons took John McDougall at his word. They obtained training as pro-life referral counselors and for more than two years offered love and assistance on the Azima sidewalk to many desperate pregnant women. The counselors' help and love saved the lives of many babies. These pro-life referral counselors have been protected under F.A.C.E.

RESPONSE

2. The standard of review on a motion to dismiss is stated in White v. Highway Patrol, 928 F.Sup. 1153 [M.D.Fla. 1996]:

On a motion to dismiss, a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that a Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in a light most favorable to the Plaintiff. Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir. 1991).

3. The Defendant contends that the Complaint is defective because the Plaintiffs were present on a sidewalk which they did not own. This is incorrect. There are a number of cases enunciating a lawful right for Robert Smith and Ray Sienkiewicz to stand on the sidewalk at the entrance to the Azima clinic providing written referral information and counseling services. These cases include Marsh v. Alabama 326 U.S. 501, 66 S.Ct. 276 (1946) and Pruneyard Shopping Center v. Robins 447 U.S. 74, 64 L Ed 2d 741, 100 S.Ct. 2035 (1980). In addition, the First and Fourteenth Amendments to the United States Constitution authorize this activity at the clinic entrance. Additional state rights, such as the right to privacy, the right to private communications, and other fundamental rights guaranteed under the Florida Constitution, further buttress the "sidewalk" rights of Smith and Sienkiewicz. Article I, Sections 2, 4, 12 and 23, Florida Constitution.

4. The Defendant further contends that the Plaintiffs' providing of written referral information as well as counseling services concerning pregnancy and its termination as is alleged in the Complaint are not protected by F.A.C.E. This contention is clearly erroneous. The New Jersey case, Greenhut v. Hand, 996 F.Supp. 372 (D.N.J. 1998), states:

The inclusion of nonmedical procedures within the definition of reproductive health services could not be clearer. Congress obviously recognized, as does this court, that a woman's reproductive health encompasses much more than access to a medical or surgical procedure, page 375.

The Court's description of the pro-life referral counselor in Greenhut (supra) virtually describes the Plaintiffs:

Although each volunteer may not be a trained social worker or obstetric nurse, each is provided with a Birthright Resource Guide so that the volunteer can provide referrals to adoption and foster care agencies, medical facilities affording pre-natal care, day care providers, maternity homes, and Lamaze and exercise classes, page 376.

The F.A.C.E. statute clearly protects Plaintiffs' services which are included in the definition of "reproductive health services". 18 U.S.C. §248 (e)(5).

5. The Defendant lastly contends that Plaintiffs' services are not F.A.C.E. - protected because they are not rendered inside the structure of the abortion clinic. Such a contention is wrong for a number of reasons. This act has been discussed by the United States Court of Appeals, Eleventh Circuit, as follows:

The Access Act proscribes intentional injury, intimidation or interference, but only if the same is committed "by force, threat of force or physical obstruction."...The activity proscribed by the broadest terms of the statute is "intimidation" caused by "threat of force."...The term "physical obstruction" is defined to mean: "rendering impassable ingress to or egress from a facility that provides reproductive health services...or rendering passage to or from such a facility ..., unreasonably difficult or hazardous". Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) at page 1521. emphasis added.

Thus, the scope of protection applies to the area outside the entrance way.

6. The area of protection was extended outward several hundred feet in the case of U.S. v. Dinwiddie, 76 F.3d 913(8th Cir. 1996). Exactly how far the territorial boundary of a "facility" extends outward from the entrance way depends on the specific location. However, the building in which an abortion clinic is located, the adjacent sidewalk, and the parking area are at least part of the protected area. Please see Madsen v. Women's Health Center, Inc., 114 S.Ct. 2516 (1994), N.O.W. v. Scheidler, Case No.: 86 C 7888, Northern District of Illinois, Order dated July 16, 1999.

7. That the pro-life reproductive health services are to be utilized in the facility is quite apparent from the information provided by Plaintiffs Smith and Sienkiewicz. And the written referral information handed out at the entrance, within the territorial boundaries of the facility, by the Plaintiffs, was, in fact, read and utilized inside the building by the pregnant women and those with them.

8. The Plaintiffs would be among the first to acknowledge that - in general - protestors are not protected by F.A.C.E. Plaintiffs have not stood at the entrance to the Azima clinic to protest abortion; they have been there, instead, to offer love and help to those pregnant women who need it, protected by F.A.C.E. as they provide this service. According to F.A.C.E. and Greenhut (supra), Plaintiffs are protected individuals.

9. The information provided on the summons return should speak for itself with regard to service of process.

10. The Complaint passes the test for sufficiency as stated in the White case, supra.

WHEREFORE, the Motion To Dismiss should be denied.

Respectfully submitted,
Christopher F. Sapp <signed>
Post Office Box 1012
Lehigh Acres, Florida 33970
(941)368-3922
Florida Bar Number 0097823
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was furnished to Conal Doyle, Esquire, 501 E. Kennedy Boulevard, Suite 1700, Tampa, Florida 33602 by U.S. Mail this 18th day of September, 1999.

Christopher F. Sapp <signed>
Attorney

EXHIBIT "A"

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