Roe v. Operation Rescue

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

4-18-1995

Roe v Operation Rescue
Precedential or Non-Precedential:

Docket 94-1123

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-1123

JANE ROE; MARY MOE;
NATIONAL ABORTION RIGHTS ACTION LEAGUE OF PENNSYLVANIA;
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA;
ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN;
REPRODUCTIVE HEALTH AND COUNSELING CENTER;
WOMEN'S SUBURBAN CLINIC; ALLENTOWN WOMEN'S CENTER;
NORTHEAST WOMEN'S CENTER; WOMEN'S MEDICAL SERVICES;
ALLEN KLINE, DR.

v.

OPERATION RESCUE; RANDALL TERRY; REVEREND JAMES P. LISANTE;
PRO LIFE NONVIOLENT ACTION PROJECT OF BRONX, N.Y.;
THOMAS HERLIHY; PRO LIFE NONVIOLENT ACTION PROJECT
OF PHILADELPHIA; MICHAEL McMONAGLE; CHESTER COUNTY
CITIZENS CONCERNED ABOUT LIFE; JOHN J. O'BRIEN;
COUNCIL FOR THE SANCTITY OF HUMAN LIFE;
JOSEPH FOREMAN; ADVOCATES FOR LIFE; ANDREW BURNETT;
AMERICAN LIFE LEAGUE; JUDIE BROWN; DIRECT ACTION
COMMITTEE; KATHY HOFFER; CRAIG HOFFER; LIFE AND
FAMILY CENTER; ANDREW SCHULBERG; PRO LIFE ACTION
LEAGUE; JOSEPH SCHEIDLER; PRO LIFE DIRECT ACTION LEAGUE;
JOHN RYAN; OMAHA CHRISTIAN ACTION COUNCIL;
DENNY HARTFORD; PRO LIFE NONVIOLENT ACTION PROJECT OF
WASHINGTON, D.C.; JOHN CAVANAUGH O'KEEFE; JOHN SMITH(S);
AND JANE SMITH(S); the last two being fictitious names,
the real names of said defendants being presently unknown
to plaintiffs, said fictitious names being intended to
designate organizations or persons who are members of
defendant organizations, and others acting in concert with
any of the defendants who are engaging in, or intend to
engage in, the conduct complained of herein

National Abortion Rights Action League of Pennsylvania,
Planned Parenthood of Southeastern Pennsylvania,
Elizabeth Blackwell Health Center for Women,
Reproductive Health and Counseling Center,
Women's Suburban Clinic, Allentown Women's Center
and Northeast Women's Center,

Appellants.
 On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. Action No. 88-cv-05157)

Argued: September 20, 1994

Before: GREENBERG, ROTH and ROSENN, Circuit Judges

(Opinion Filed April 18, 1995)

Susan Frietsche, Esquire (Argued)
Linda J. Wharton, Esquire
Women's Law Project
125 South Ninth Street, Suite 401
Philadelphia, PA 19107
Attorneys for Appellants

James T. Owens, Esquire (Argued)
Owens, D'Ambrosio & Nescio
25 South Church Street
West Chester, PA 19382
Attorney for Appellees

OPINION OF THE COURT

ROTH, Circuit Judge:

This is an action brought for declaratory and

injunctive relief to stop blockades of abortion clinics. Aspects

of this dispute have been before the courts for almost seven

years. In the latest episode, the District Court for the Eastern
District of Pennsylvania denied appellants' motion to hold

Operation Rescue, Randall A. Terry, Robert Lewis, and Joseph

Roach in contempt for violating a Revised Permanent Injunction,

issued on July 17, 1989. Plaintiffs, National Abortion Rights

Action League of Pennsylvania ("NARAL-PA"), Planned Parenthood Of

Southeastern Pennsylvania, Elizabeth Blackwell Health Center for

Women, Reproductive Health and Counseling Center, Women's

Suburban Clinic, Allentown Women's Center, and Northeast Women's

Center appeal that order. Because we find that the district

court applied an incorrect legal standard in deciding the

question of civil contempt, we will reverse the denial of the

motion, and we will remand the case to the district court with

instructions to grant the motion.

I.

The underlying action was originally brought on June

29, 1988, by eleven plaintiffs, consisting of NARAL-PA, seven

abortion and family planning clinics, two pregnant women, and a

physician who regularly performed abortions. It was brought in

response to Operation Rescue's "publicly announced plans to close

down clinics that offer abortions in the Philadelphia area by

staging massive demonstrations and blockades at . . . [those]

facilities." Roe v. Operation Rescue, 919 F.2d 857, 861 (3d Cir.

1990) ("Roe IV"). The plaintiffs sought declaratory and

injunctive relief against these proposed activities. Operation

Rescue and Randall Terry were among the named defendants.
 After a hearing on June 30, 1988, the United States

District Court for the Eastern District of Pennsylvania issued a

temporary restraining order ("TRO") "enjoining the defendants and

others acting in concert with them from trespassing on, blocking

entrances at, or physically abusing or harassing persons working

or obtaining services at abortion facilities in the metropolitan

Philadelphia area from July 4," 1988, to July 9, 1988. Roe IV at

862.

In March 1989, the district court permanently enjoined

the defendants from "trespassing on, blocking, obstructing

ingress or egress from any facility at which abortions are

performed in the City of Philadelphia or metropolitan area" and

from "physically abusing or tortiously harassing persons

entering, leaving, working at, or using any services at any

facility at which abortions are performed in the City of

Philadelphia and metropolitan area." Roe v. Operation Rescue,

710 F. Supp. 577, 589 (E.D. Pa. 1989) ("Roe II"), aff'd in part

and rev'd in part in Roe IV. Subsequently, on plaintiffs' motion

to modify the permanent injunction to provide for the United

States Marshal for the Eastern District of Pennsylvania to read

the injunction at protest sites, the district court granted the

Revised Permanent Injunction at issue here. Roe v. Operation
Rescue, No. 88-5157 (E.D. Pa. July 17, 1989) ("Roe III").

The present appeal arose out of the third civil

contempt motion to be filed in this on-going case. On September
7, 1993, plaintiffs sought civil contempt sanctions against

Operation Rescue, Randall Terry, and non-party respondents Joseph

Roach, Robert Lewis, and Owenna Nagy for alleged violations on

July 9, 1993, of the district court's Revised Permanent

Injunction. On December 1, 1993, the district court conducted a

hearing on the motion.

At the hearing, the plaintiffs presented evidence that

during the summer of 1993 Operation Rescue National organized,

publicized, and raised money for a nationwide campaign to protest

abortion rights in seven cities, designated "Cities of Refuge."1

The campaign was to take place from July 8 through 18, 1993.

Philadelphia was named as one of the "Cities of Refuge."

Evidence established that Operation Rescue National, Randall

Terry, and the Executive Director of Operation Rescue National,

Keith Tucci, advertised and promoted the campaign in anti-

abortion magazines.

The plaintiffs introduced into evidence a letter sent

out over Randall Terry's name on stationery identifying Terry as

"Founder, Operation Rescue." Terry acknowledged writing the

letter. The letter asked supporters to contribute money and to

participate personally "to help Operation Rescue National put on

the Cities of Refuge." Appendix ("App.") at 183, 262-63.

1 As discussed below, we hold that the two groups,
Operation Rescue and Operation Rescue National, are
interchangeable.
 The plaintiffs also submitted promotional literature,

describing the Cities of Refuge campaign. These materials listed

planned activities, including "rescues," which have been

characterized in defendants' literature as "passive, non-violent

direct action." See, e.g., App. at 265. Promotional fliers also

listed local speakers who would address the participants in the

Cities of Refuge Campaign at the Valley Forge Hilton on seven

evenings during the campaign. Randall Terry, Keith Tucci, and

Robert Lewis were among those listed as speakers. Terry's speech

was scheduled for July 9. App. at 258-59, 261.

Testimony at the December 1 hearing established that

from July 9th through the 18th several blockades and numerous

anti-abortion demonstrations and protests occurred in the

Philadelphia area. On the morning of July 9th, over 100 anti-

abortion protestors assembled on the grounds of the Crozer-

Chester Medical Center, in front of the Reproductive Health and

Counseling Center ("RHCC"). The demonstrators, many of whom wore

"Operation Rescue"/"Cities of Refuge" badges and "Rescue" arm

bands, effectively blocked the clinic's three doors from

approximately 10:30 a.m. until 3:30-3:45 p.m.

Witnesses testified that appellees Joseph Roach and

Robert Lewis directed the protesters, moving those needing rest

into the shade and interacting with the police. There was,

however, no evidence that Roach or Lewis physically blocked a

door. At about 12:45 p.m., a United States Marshal read the
Revised Permanent Injunction over a bull horn to the protestors.

Witnesses stated that Roach and Lewis, who conceded that they had

actual knowledge of the injunction at the time of the blockade,

did nothing to disperse the blockade after the injunction was

read.

An individual who attended the Cities of Refuge events

at the Valley Forge Hilton on July 14, 1993, testified that

appellee Lewis acted as Master of Ceremonies and introduced Keith

Tucci as the Operation Rescue National leader. Tucci in turn

thanked individuals including "Bob" and "Joe," presumably

referring to Robert Lewis and Joseph Roach, for their local

leadership. The witness testified that Roach and Lewis wore red

arm bands, designating their marshal status, and that at the

close of the evening they directed the group where "to meet for

tomorrow's events."

After the hearing, the district court denied

plaintiffs' motion. Finding that Roach and Lewis had actual

knowledge of the court's order and "were present and active at

certain events occurring from July 8, 1993, through July 18,

1993," the district court nonetheless held that the plaintiffs

failed to establish that either Roach or Lewis violated the

Revised Permanent Injunction. Roe v. Operation Rescue, No. 88-

5157, slip op. at 1 (E.D. Pa. Dec. 10, 1993) ("Roe V"). The

court concluded that "Roach and Lewis wore red arm bands, but it

was not established by clear and convincing evidence that the
bands were associated with one particular group, namely Operation

Rescue." Id. In addition, the district judge erroneously

referred to Terry's speech at the Valley Forge Hilton on the

evening of July 9th as being on a "date prior to the 'Cities of

Refuge' campaign." He then found that the plaintiffs had failed

to establish that Terry's activities violated the Revised

Permanent Injunction. Id. at 2.

Appellants filed this appeal of the denial of their

contempt motion, designating Operation Rescue, Terry, Lewis, and

Roach as appellees.

II.

Our review of the denial of a contempt motion is for

abuse of discretion by the district court. Reversal is

appropriate "only where the denial is based on an error of law or

a finding of fact that is clearly erroneous." Harley-Davidson,

Inc. v. Morris, 19 F.3d 142, 145 (3d Cir. 1994); see also Martin

v. International Matex Tank Terminals-Bayonne, 928 F.2d 614, 626

(3d Cir. 1991); Littlejohn v. Bic Corp., 851 F.2d 673, 683 (3d

Cir. 1988).

III.

We conclude that the district court erred as a matter

of law by ignoring the vast documentary evidence and undisputed

testimony demonstrating that Operation Rescue, Randall Terry,

Robert Lewis, and Joseph Roach acted in concert to violate the
Revised Permanent Injunction by orchestrating the July 9th

blockade of the RHCC.

A. Operation Rescue

A plaintiff must prove three elements by clear and

convincing evidence to establish that a party is liable for civil

contempt: "(1) that a valid order of the court existed; (2) that

the defendants had knowledge of the order; and (3) that the

defendants disobeyed the order." Roe II at 657. Although the

district court made no specific findings regarding Operation

Rescue's role in the July 9th RHCC blockade, the court's

conclusion that "it was not established by clear and convincing

evidence that the red arm bands [that Roach and Lewis had worn]

were associated with Terry or Operation Rescue," Roe V at 2,

suggests that the court implicitly concluded that Operation

Rescue had no involvement in the July 9th blockade and therefore

did not disobey the order.

We conclude that the trial court abused its discretion

by holding that evidence demonstrating an association between the

red arm bands and Operation Rescue was necessary to establish

Operation Rescue's involvement in the RHCC blockade. Such a test

has no basis in the language of the Revised Permanent Injunction.

By focusing on the arm bands, the court appears to have ignored

the vast documentary evidence that plaintiffs presented at the

hearing, linking Operation Rescue to the blockade.
 Included in the documentary evidence establishing the

connection between Operation Rescue, Operation Rescue National,

and the RHCC campaign are the literature, fundraising letters,

and organizing materials put out by Operation Rescue, Operation

Rescue National, Randall Terry, and Keith Tucci to promote the

Cities of Refuge Campaign. These include the materials

publicizing and raising funds for the Cities of Refuge campaign,

some of which urged "non-violent direct action" in the

Philadelphia area during the period from July 8-17, 1993. App.

at 258, 260-61, 262-74. On April 4, 1993, Keith Tucci, in his

capacity as Executive Director of Operation Rescue National, sent

out a letter on Operation Rescue letterhead to promote the Cities

of Refuge "life-saving activities" and to solicit funds for these

events. App. at 267-68. Operation Rescue and Operation Rescue

National materials published after the Cities of Refuge campaign

claimed credit for its success. App. at 275-84. A publication,

entitled "The Rescuer," expressly identified the July 9th

blockade of RHCC as part of the Cities of Refuge Campaign. App.

at 285-88.

We find the Appellees' argument that Operation Rescue

National is a separate and distinct organization from Operation

Rescue to be disingenuous.2 Indeed, the record supports the

2
At least two other federal courts have found Operation
Rescue National and Operation Rescue to be the same organization.
See NOW v. Operation Rescue, 816 F. Supp. 729, 733 (D.D.C. 1993);
Women's Health Care Servs., P.A. v. Operation Rescue-National,
1991 U.S. Dist. LEXIS 14521, *1-4 (D. Kan. Aug. 27, 1991);
conclusion that there is a similarity of membership and an

interchangeable use of names between the two groups. Even if the

record does not establish that Operation Rescue and Operation

Rescue National are identical, it indicates that Operation Rescue

National and Operation Rescue acted in concert to conduct the

Cities of Refuge Campaign.

The Appellees often failed to distinguish between

Operation Rescue National and Operation Rescue in their own

promotional literature. For example, when Randall Terry sent out

a letter soliciting support for the Cities of Refuge Campaign on

stationary identifying him as "Founder, Operation Rescue," he

sought donations for "Operation Rescue National" but stated:

"The child-killers fear Operation Rescue more than any other pro-

life group. Your gifts help Operation Rescue National keep the

abortion industry on the run." App. at 262-63 (emphasis added).

Similarly, Keith Tucci sent his April 4 Cities of Refuge

fundraising letter on Operation Rescue stationery, referred to

Operation Rescue in the body of the letter, but signed it as

Executive Director of Operation Rescue National. App. at 267-68.

Testimony at the hearing also linked Operation Rescue

National to Operation Rescue and to the July 9th RHCC blockade.3

Many of the blockaders at RHCC wore "Cities of Refuge" badges and

"Rescue" arm bands. App. at 38, 116. An attendee at the Valley

3
See App. at 71 (testimony that a check written and
mailed to Operation Rescue was cashed and endorsed by "ORN,"
presumably Operation Rescue National).
Forge Hilton rally testified that those present wore similar

emblems, as well as t-shirts and hats with the same "Cities of

Refuge" logo as that on the Operation Rescue/Cities of Refuge

promotional mailings. App. at 166-67.

In light of the overwhelming record evidence of

Operation Rescue involvement, we believe that the trial court

abused its discretion by basing its decision solely on its

finding that the red arm bands were not proven by clear and

convincing evidence to be associated with Operation Rescue and

thereby concluding that Operation Rescue was not implicated in

the July 9th blockade.

B. Randall Terry

Appellants argue that the district court committed

serious errors of law and fact in finding that Terry was not

involved in activities related to the July 9, 1993, RHCC blockade

in violation of the Revised Permanent Injunction. They contend

that the trial court abused its discretion by relying on the

erroneous legal conclusion that a contemnor must be physically

present at the scene to violate the injunction. We agree that

the trial court erred as a matter of law by ignoring undisputed

testimony that Terry solicited support for the Cities of Refuge

campaign and spoke at one of the Cities of Refuge events, thereby

acting in concert with Operation Rescue to orchestrate the July

9th blockade.4 See App. at 183-84 (Terry's testimony).

4
Appellants also assert that the court committed a
serious factual error in setting the date of Terry's speaking
 The district court concluded that the plaintiffs failed

to establish that Terry violated the order:
Plaintiffs failed to establish that defendant Terry was
present or active in any of the events in question. . .
. Terry did speak at the Valley Forge Hilton Hotel at
a date prior to the "Cities of Refuge" campaign.
However, the Hotel is in excess of twenty miles from
the Reproductive Health and Counseling Center and the
speech concerned the political involvement of those in
the pro-life movement. Said activities were not in
violation of this court's Order.

Roe V at 2.

We have previously held that an instigator of

contemptuous conduct may not "absolve himself of contempt

liability by leaving the physical performance of the forbidden

conduct to others." Roe IV at 871. In upholding the district

court's finding that defendant Michael McMonagle violated the TRO

in a 1989 blockade, this court found that actual trespass was not

"a necessary precondition for holding McMonagle in civil

contempt" where he had instructed protestors during the blockade

and spoken with police officials at the scene. Id. When a party

appearance at "a date prior" to the Cities of Refuge campaign
when all the evidence, including Terry's own testimony, indicates
that the speech occurred during the campaign, in the evening of
the same day as the RHCC blockade. Appellees argue that the
error was harmless and that placing Terry's speech on a date
"prior to" the campaign actually supported appellants' argument.
A clearly erroneous factual finding may create appropriate
grounds for reversal of a trial court's decision in a contempt
proceeding. See Harley-Davidson v. Morris, 19 F.3d at 145;
Martin v. International Matex Tank Terminals, 928 F.2d at 626.
We do not find it necessary to reach this issue, however, because
we find sufficient other legal and factual grounds to support our
reversal.
to the Revised Permanent Injunction urges others to participate

in conduct violative of the Injunction, such encouragement may

itself suffice to support a finding of contempt.5

Although Terry was not physically present at the July

9th RHCC blockade, uncontroverted evidence establishes Terry's

involvement in at least two activities related to the blockade in

violation of the Revised Permanent Injunction. First, prior to

the blockade, Terry wrote the letter discussed above to encourage

financial support for and participation in the Cities of Refuge

campaign. The letter explicitly stated that "[w]ith God's help,"

rescues would occur as part of the "massive pro-life counter-

offensive." App. at 262. Terry's subsequent testimony indicates

his equation of "rescues" with "blockades."6 The letter urged:

5
See New York State NOW v. Terry, 732 F. Supp. 388, 405
(S.D.N.Y. 1990) (holding a local group affiliated with Operation
Rescue in contempt of injunctive orders that prohibited blocking
access to medical facilities that performed abortions where six
organizational leaders signed a letter urging the group's members
to participate in a "National Day of Rescue"), aff'd in part,
rev'd in part on other grounds, 961 F.2d 390 (2d Cir. 1992).
6
The testimony includes the following dialogue, in which
Roach questioned Terry:

A [Terry] When you say rescue, define that. Do you
mean blockade?

Q To blockade . . .

A Okay.

Q . . . doors.

See also Roe IV at 861 (3d Cir. 1990) (defining "rescue missions"
as anti-abortion "blockades and demonstrations").
 With God's help, the Cities of refuge will have a
much larger impact than even Wichita [presumably
referring to blockades of clinics in Wichita, Kansas];
more children and mothers will be rescued, more pro-
lifers will be in the street, more abortionists will be
exposed and confronted, and more fresh troops will be
brought in to the battle.

App. at 262.

Terry's reference to Wichita, his use of the word

"rescue," and his battle imagery all suggest that he was

encouraging the activity that ultimately occurred at the RHCC.

By helping to organize, publicize, and raise money for the Cities

of Refuge campaign that, as discussed above, instigated the July

9th blockade of the RHCC, Terry acted in contempt of the Revised

Permanent Injunction.

Second, Terry was a featured speaker at a nationally-

publicized rally in the Philadelphia area on the night of the

blockade. His speech was advertised extensively in Cities of

Refuge promotional materials that promoted "rescue" activities in

the Philadelphia area. App. at 258-59, 261. Testimony revealed

that his presence was meant to attract people to the Philadelphia

area events, thus facilitating the July 9th blockade. See App.

at 258, 260-61.

Given these facts, the trial court's conclusion that

"[p]laintiffs failed to establish that defendant Terry was

present or active in any of the events in question" suggests that

the court relied on the erroneous legal conclusion that a

contemnor must participate on the scene in order to violate the
Revised Permanent Injunction. The court's emphasis on the

physical distance between Terry at the time he gave his speech

and the site of the blockade buttresses this conclusion. We

reverse the trial court's decision because it is based on a clear

error of law. See, e.g., Harley-Davidson, Inc. v. Morris, 19

F.3d at 145 (holding that questions of law in a contempt

proceeding are subject to plenary review).

C. Roach and Lewis

The district court refused to hold Roach and Lewis in

contempt on the grounds that the plaintiffs failed to prove that

the two men violated the Revised Permanent Injunction. In

particular, the court noted the plaintiffs' failure to establish

by clear and convincing evidence that the red arm bands that

Roach and Lewis wore "were associated with one particular group,

namely Operation Rescue." Roe V at 1. The trial court erred by

concluding that Roach and Lewis did not violate the Revised

Permanent Injunction even though appellants had shown by clear

and convincing evidence that Roach and Lewis acted in concert

with Operation Rescue and Terry to violate its terms.

Case law establishes, and the trial court acknowledged,

that individuals, who are neither parties to a proceeding nor

named in the court order at issue, may nonetheless be subject to

the court's contempt powers if they have "knowledge of a valid

court order and abet others in violating it." Roe IV at 857;
Quinter v. Volkswagen of America, 676 F.2d 969, 972 (3d Cir.
1982); Roe V at 1. Moreover, the Revised Permanent Injunction,

by its terms, prohibits non-parties with actual knowledge of the

Injunction from "acting in concert" with the named parties to

frustrate the injunction or avoid compliance with it. Id. at 2.

The district court found that Roach and Lewis had

knowledge of the Revised Permanent Injunction. Id. Roach and

Lewis have not challenged that finding. There is, moreover,

clear and convincing evidence in the record to show that Roach

and Lewis acted in concert with Operation Rescue and Randall

Terry to violate the Revised Permanent Injunction by organizing

the Cities of Refuge campaign in the Philadelphia area in general

and by leading the July 9th blockade of RHCC in particular.

Undisputed testimony established that Roach and Lewis attended

the RHCC blockade. While there, they wore red arm bands and

acted in a leadership capacity, whether or not they physically

blocked entrances to the building.7 Roach and Lewis admitted to

playing local leadership roles in the Cities of Refuge campaign.

App. at 299, 234-35. Undisputed testimony established that Lewis

acted as Master of Ceremonies on the July 14th rally at the

Valley Forge Hilton, where he presented Keith Tucci, director of

Operation Rescue National, who in turn recognized Lewis's "local

leadership." App. at 169-70. Moreover, Lewis's name appeared

7
As discussed above, a contemnor need not have actually
physically trespassed or blockaded a door to be held in contempt
of the Revised Permanent Injunction.
with Terry's on Cities of Refuge fliers and promotional

materials.

Appellee Roach received an award at the July 14th rally

for leadership and also received a commendation from Keith Tucci.

Roach testified, moreover, that it was he who invited Terry to

speak at the Valley Forge Hilton on the night of the blockade in

order to draw a crowd. App. at 234-35.

The trial court thus appears to have misread the

Revised Permanent Injunction's "acting in concert" clause by

failing to hold these two non-parties in contempt where

undisputed evidence established their coordinated activities with

Operation Rescue and Terry to organize and run the July 9th

blockade. The court erred by focusing exclusively on the

association between the arm bands and Operation Rescue or Terry.

IV.

For the reasons stated above, we will reverse the

judgment of the district court and remand this case to the

district court with instructions to enter an order granting

plaintiffs' motion to hold Operation Rescue, Randall Terry,

Robert Lewis, and Joseph Roach in civil contempt of the Permanent
Revised Injunction, issued July 17, 1989, and for further

proceedings consistent with this opinion.