The federal case against Florida’s busiest abortionist

By Anthony Bianco in Ocala, Fla. – Business Week

Dr. James Scott Pendergraft IV likely will perform more abortions this year at the five clinics he owns throughout Florida than any other doctor in the state, if not the country. By all accounts, Dr. Pendergraft is a physician of exceptional medical skill and boundless commercial ambition. The burly 43-year-old employs a host of high-profile marketing techniques, including highway billboards, that unsettle fellow abortion providers and infuriate right-to-lifers. “I never try to sneak into a city,” says Pendergraft, who makes his rounds in a bulletproof vest. “I want people to know they’re coming to someone who is not a back-alley kind of individual.”

Pendergraft’s dream is to expand his business up the east coast of Florida all the way to his native North Carolina. At the moment, though, he is focusing his energies on keeping himself out of jail. In June, Pendergraft and a former employee, Michael Spielvogel, were indicted by the U.S. Attorney’s Office in Tampa for attempted extortion and lying under oath. The extortion charge is a felony carrying a maximum 30-year sentence. Both pleaded not guilty and are scheduled to stand trial in October in Ocala, a central Florida city of 50,000 best known for the lush Thoroughbred farms encircling it.

The indictment stems from a lawsuit that Pendergraft brought in 1998 against the city of Ocala and Marion County for allegedly failing to protect his clinic there from harassment by anti-abortion protesters. The physician won a preliminary injunction, but then let his suit languish. It was dismissed in late 1999. However, prosecutors now allege that Pendergraft and Spielvogel had given false testimony in the case as part of a scheme to extort an excessive settlement from Ocala officials.

The Pendergraft indictment is a curious new twist in the holy war between abortion rights advocates and opponents. Over the years, abortion doctors have been hit with all sorts of allegations—even homicide—but the extortion conspiracy charge against Pendergraft appears to be a first. And it is all the more noteworthy for being brought by the feds.

Abortion was illegal in most states until 1973, when the U.S. Supreme Court held in Roe v. Wade that abortion is a woman’s constitutional right. Increasing anti-abortion violence prompted Congress to enact a law in 1994 making it a crime to obstruct access to an abortion facility. Under the pro-choice Clinton Administration, the Justice Dept. has vigorously enforced this law. “In terms of protecting clinics, DOJ has been emphatically pro-choice in its enforcement,” says David J. Garrow, an Emory University School of Law professor. “Until this case in Ocala, I have not heard of a single instance of seemingly hostile behavior by Justice toward a medically credible abortion provider.”

It is unlikely that U.S. Attorney General Janet Reno is even aware of the Pendergraft case at this point. It was initiated by Mark B. Devereaux, an assistant U.S. attorney in Jacksonville, and approved by his boss, Donna A. Bucella, the Tampa-based U.S. Attorney for Florida’s middle district. A spokesman for Bucella says that she did not seek Washington’s approval before signing off on the Pendergraft indictment. Both Bucella and Devereaux declined to respond to questions.

In their comments in court, prosecutors have insisted that the Pendergraft case is about extortion, not abortion. But as a practical matter, by indicting Pendergraft, the U.S. Attorney’s office intervened in a highly politicized local dispute between a prickly, strong-willed advocate of abortion rights and a conservative community offended by his very presence. Until Pendergraft came to town, Ocala had not had an abortion provider since 1989, when its sole clinic was firebombed and destroyed. No one was ever charged with the crime.

Unlike most doctors who staff American abortion clinics, Pendergraft is board-certified in obstetrics and gynecology. He put himself in even more select company by completing a fellowship in maternal/fetal medicine at the University of South Florida in Tampa. Only about 1,100 physicians nationwide have completed such advanced training. Unlike many technically adept doctors, Pendergraft is said to have a warm bedside manner. “He’s a fabulous physician,” says Patricia Baird-Windle, who owned a Melbourne (Fla.) abortion clinic that used to employ him. “I’ve worked with more than 60 doctors over the years and he’s clearly top 5.”

But as a businessman, the fiercely competitive Pendergraft stirred backlash from the moment he struck out on his own in 1995 by founding the first of his two clinics in Orlando. “He’s as ruthless as I’ve ever seen,” says competitor Susan Hill, president of the National Women’s Health Organization, which opened Orlando’s first abortion clinic in 1976. Pendergraft essentially muscled his way into the already crowded Orlando market by spending heavily to publicize his willingness to do abortions as late as 28 weeks into pregnancy. Most providers shy away from late-term abortions because they are medically tricky and politically touchy.

Ready to fight?

It was logical for Pendergraft to apply the tactics that served him well in Orlando to Tampa and Fort Lauderdale, where he opened clinics in 1998 and 1999, respectively. But why Ocala? Why risk life and limb to enter a market that is economically marginal at best? Pendergraft says that he thought that he would be able to at least break even while generating referrals for his big-city clinics. But his behavior also suggests that he was spoiling for a fight.

Pendergraft replied to the hundreds of letters of protest he received from Ocala residents with a form letter that amounted to an abortion rights manifesto. He sent the same defiant response to Marion County’s board of commissioners after it urged him to reconsider his plans to come to Ocala in a letter from Chairman Larry Cretul. “We are a small, family-oriented community, relatively free from controversy of the kind this might create,” Cretul wrote. Pendergraft put his clinic right in the heart of Ocala, a stone’s throw from the county courthouse. He hung an oversize American flag from its roof and told a local reporter that he expected “a wholesome welcome.”

In the months before the clinic opened, Mike Spielvogel had numerous conversations with Cretul. Spielvogel, 54, is a former real estate broker whom Pendergraft describes as “my strategic analyst.” In late 1997, Spielvogel called the FBI, which has an office in Ocala, to complain that Cretul had made “veiled threats” over the telephone. In an affidavit that Spielvogel later filed in court, he claimed that Cretul said, among other things, that “it’s not an ‘if’ but a ‘when’ that this new clinic is bombed.” Spielvogel’s accusations boomeranged badly. Investigators concluded that he was lying, and the U.S. Attorney’s office authorized Cretul to begin secretly tape-recording his conversations with Spielvogel and Pendergraft.

In December, 1998, Pendergraft filed his suit against Ocala and Marion County, asking a federal judge to require local government to take various steps to protect patients and staff members from the unruly demonstrators who had besieged the clinic from the day it opened. The original complaint made no mention of Cretul’s alleged threats. It was not until March, 1999, that Spielvogel submitted his affidavit. Pendergraft filed a supporting statement, attesting to the fear he saw in his employee after one of his conversations with Cretul: “His reaction was of someone seriously frightened [for] his safety and life.”

A Legend

Shortly after these affidavits were filed with the court, Pendergraft met with Virgil Wright III, Marion County’s lawyer. He was accompanied by his own lawyer, S. LeRoy Lucas, a legend in pro-choice circles. As a young lawyer, Roy Lucas, now 57, devised the right-to-privacy argument that carried the day in Roe v. Wade. Lucas and his client had come to Wright’s office to talk about settling the case, not realizing that an FBI agent was videotaping the proceedings through one-way glass.

Lucas had sent a letter to Wright proposing a settlement of $6 million. But at the meeting, the county’s lawyer said that anything over $100,000 was out of the question. Annoyed, Lucas noted that a jury in Oregon had just awarded $107 million to a similarly embattled abortion clinic. “We’re going to go for a verdict of over $100 million, and they better come up with some money or they’re gonna get burned,” declared Lucas, according to the transcript. “We’ll try to bankrupt the county.” Added Pendergraft: “Not try. We will bankrupt the county. And I promise you I’ll put a statue of myself [in Ocala’s town square] that states that Dr. Pendergraft brought freedom to Ocala.”

A few weeks later, Pendergraft took a big step toward winning his lawsuit against Ocala when Judge W. Terrell Hodges ruled that the city had discriminated against the doctor by refusing to let police officers moonlight as clinic security guards. Pendergraft inexplicably failed to pursue his suit, which Judge Hodges dismissed in late 1998. So much for bankrupting Marion County. It’s the solvency of Pendergraft’s Ocala clinic that’s at issue now. Just 673 abortions were performed in all of Marion County in 1999, far below what Pendergraft needs to break even in Ocala. Meanwhile, the spiraling cost of his legal defense is burdening the finances of his four other clinics.

Pendergraft’s fellow clinic owners think the extortion charge is ludicrous but are keeping their distance from him nonetheless. “Everybody is really nervous about him,” says Margaret Gifford, owner of the Alternatives of Tampa clinic. “When somebody opens that many clinics that fast, corners are going to be cut.” Pendergraft insists that he runs his business strictly by the book and says that competitors like Gifford resent him for taking business away from them. “The fact is I have come into markets and given women what they were missing: good care provided by a physician who is an owner,” he says.

During a recent court hearing in Ocala, prosecutor Devereaux revealed that a second investigation of Pendergraft was under way in Orlando and might result in additional criminal charges. He offered no details. Devereaux’s revelation infuriated Pendergraft, who accuses the prosecutor of conducting “a smear campaign” against him. “The government rushed to judgment in indicting me,” he says. “Now that they’ve realized that the extortion case isn’t there, they’re trying to find another way to crack my halo.”

Even as he prepares for trial in Ocala, Pendergraft continues to visit each of his five clinics regularly, putting hundreds of miles on his car every week. Only in Ocala does he routinely have to run a gauntlet of “anti’s” to reach his clinic. But as Pendergraft approached one of his Orlando clinics on a recent afternoon, he was taking no chances. He punched some buttons on a cell phone and put it to his ear. “This is Dr. P,” he said in a rumbling baritone. “I’ll be there in 30 seconds.” He pulled his car into a driveway and parked behind a tidy two-story building. Not a protester in sight. Pendergraft climbed out of his car and walked toward the building. A door opened suddenly from the inside and he was gone.

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JAMES SCOTT PENDERGRAFT IV:

He wears a bullet-proof vest on his rounds.

BORN July 4, 1957, in Chapel Hill, N.C.

EARLY YEARS Grew up in Chapel Hill. Eldest son of a mortician and a nurse.

EDUCATION BA magna cum laude, University of North Carolina, 1978; MD, Meharry Medical College, 1982.

MEDICAL TRAINING U.S. Army, residency at a hospital affiliated with University of Maryland; fellowship in high-risk obstetrics, University of South Florida, an elite credential.

ON ABORTION AS A CALLING “A lot of doctors with my training diagnose fetal abnormalities, but won’t perform abortions. I felt it was much more satisfying to work with women through termination.”

MONEY AS A MOTIVE Likes to boast that he is “a $2,000-an-hour man.”

ADMINISTRATIVE PHILOSOPHY “It’s easy to keep the doctors who work in my clinics in line because they know I can come in and do the procedures myself.”

FAMILY Divorced. Father of four children.

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COURTROOM DRAMA

The tangled legal history of James Pendergraft

1995 U.S. DISTRICT COURT, JACKSONVILLE
Pendergraft successfully sues the city of Orlando after it blocks the opening of his abortion clinic on zoning grounds. The city settles for $325,000.

1998 U.S. DISTRICT COURT, OCALA
Pendergraft accuses Ocala officials of discriminating against him by prohibiting police officers from moonlighting as security guards at his clinic. As the case proceeds, the FBI begins an investigation of Pendergraft. He wins a temporary injunction against the city but lets the case drop.

2000 U.S. DISTRICT COURT, OCALA
Federal prosecutors indict Pendergraft and an associate on extortion charges, claiming that they offered false testimony in the 1998 case in a failed attempt to win a big judgment.