March/April, 1999 Volume XIII Number 5

Smoke and mirrors

Planned Parenthood's conspiracy to end free speech

In late October of 1995 Planned Parenthood, through an Oregon affiliate, along with the Feminist Women's Health Center chain filed suit in the U.S. District Court, Ninth Circuit against two organizations and 14 anti-abortionists from around the country. The U.S. District Court of Oregon was chosen for a reason. Any appeal would first have to be heard in the Ninth Circuit Court of Appeals. With it's reputation for liberality and abortion-friendly judges, the case was more likely to make its way through preliminary legal procedures and onto trial.

The reality that a stunning 90% of cases appealed within the Ninth Circuit are over-turned by higher courts mattered little. A win, even in a lower court, would have a decisive and abiding impact on abortion protest throughout the country.
The lawsuit was joined by a number of individual abortion providers, among them Warren Hern of Boulder, Colorado, Robert Crist of St. Loius, Missouri, James and Elizabeth Newhall of Portland, Oregon, and an employee of the Fem-Center (a name adopted by anti-abortionists to refer to the abortion facility chain) who later dropped out.
Carefully planned and executed, the plaintiffs held twin news conferences on both the East and West Coast to announce having filed a lawsuit for a remarkable 1.4 billion dollars.
The complaint claimed a pattern or conspiracy existed which resulted in clinic bombings and abortionist shootings since 1985. The nexus of the conspiracy, they argued, fell among two organizations and a dozen anti-abortion leaders scattered throughout the United States.
Defendants included a relatively new First Amendment protest group, the American Coalition of Life Activists (ACLA) based in Norfolk, Virginia and well-established Advocates for Life Ministries (AFLM), publishers of Life Advocate magazine based in Portland, Oregon.
Individual defendants included some of the most well-known anti-abortion movement figures, leaders like Dr. Monica Migliorino-Miller (Milw. WI), Michael Bray (Bowie, MD), and Donald Treshman (Baltimore, MD). Two more, Andrew Burnett (Portland, OR) and Joseph Foreman (Skyforest, CA), were co-founders with Randall Terry of Operation Rescue, a national group involved in doing sit-ins at abortion facilities in the late 1980s and early 90s.
The group was rounded out by other prominent leaders, two Oregon women, Dawn Stover and Cathy Ramey, Roy McMillan of Jackson, Mississippi, Timothy Dreste of St. Louis, Missouri, Michael Dodds from Wichita, Kansas, Stephen Mears of New Hampshire, and Bruce Murch of Windsor, Massachusetts.

Using the courts

The lawsuit itself was nothing new. In 1985 the American Civil Liberties Union, in conjunction with the Feminist Women's Health Center chain developed a strategy and mailed out manuals suggesting how abortion facilities might squelch anti-abortion protest. While their opponents used picket signs and other low-budget tools, the abortion industry had grown rich, rich enough to maneuver through the courts.

The litigation project was begun with the aim of removing peaceful protesters from the sidewalks bordering abortion facilities. Sidewalk counseling, prayer vigils and picketing had resulted in a continuing public contempt for aborting babies. Nationally there were, with very few exceptions, no clinic blockades back in 1985. But still women were dissuaded from having abortions as protesters marched, chanted, sang, and lifted signs outside of facilities.
In 1985, as a test for the new litigation project, the Feminist Women's Health Center filed its first major lawsuit in Portland, Oregon. A defendant who would be named and rise to national prominence only later was Andrew Burnett and his newly chartered Advocates for Life Ministries.
Burnett and others were sued under a racketeering statute as well as the Ku Klux Klan Act which make it illegal to interfere with interstate commerce and the fundamental rights of others. Picketing and prayer on a public sidewalk were suddenly labeled as "extreme," "intolerant," and even "militant" behaviors. The individual anti-abortion actors were dragged through a six-year court battle, a sure way to threaten other protesters who might be tempted to voice opposition to abortion.
The outcome of the case was a murky, mixed verdict that left some defendants liable and others exonerated for precisely the same behaviors. What was clear was that a jury would be willing to limit First Amendment expressions of speech if the abortion industry could successfully inflame individual jurors against individual defendants. Emotion, not objective legal liability was the key to getting a verdict that would create a climate of fear for those protesting abortion.
The success, even though mixed, of the earliest court cases served to encourage the abortion industry. Soon it was not just a cooperative effort between the ACLU and the radical Fem-Centers, individual abortion providers and abortion facilities filed lawsuits as well. By 1995 it seemed there was little the courts would not grant their abortion-industry allies.

Political payback?

Back to 1995, the lawsuit filed by Planned Parenthood demonstrated more than the abortion industry's determination to stop only certain types of protest activity. Arguing that posters advocating picketing, prayer, and fasting were tantamount to a threat of physical harm to abortionists identified there, Planned Parenthood sought out the assistance of New York's largest and most politically powerful law firm.
Arguably more than a few Senate and Congressional races have been lost and won based upon an endorsement from Planned Parenthood and other abortion industry lobbying groups. In a sense, one wonders if the decision to do pro bono work on behalf of Planned Parenthood was political payback, after all, "Paul, Weiss and Riskind" is more than a consortium of able attorneys. It is a firm represented by some of the most politically savvy attorneys, representing current and former members of Congress. In short, the appearance is that the firm is affectionately tied in with power-brokers in some of the highest positions in U. S. government.
Under the direction of Planned Parenthood's own legal advisor, Roger Evans, the would-be plaintiffs began gathering evidence to turn up the heat against die-hard anti-abortion protesters. These included movement leaders who had failed to understand that Constitutional rights could not be guaranteed to opponents of abortion.

Justice Department joins in

Following the shooting of a circuit-riding abortionist in Pensacola, Florida, in 1993, claiming the existence of a broad anti-abortion conspiracy, the abortion industry sought to put pressure on all branches of government. Almost daily industry spokeswomen insisted that the government was lax in identifying criminal activity on the part of those opposed to killing Unborn babies.
The result of such political pressure was that for nearly two years, between 1993 and 1995, the Justice Department, headed by Janet Reno, investigated the anti-abortion movement in an attempt to determine if an illegal conspiracy to harm abortion providers actually existed.
Millions of dollars later, after exhaustive interviews and Grand Jury subpoenas; after invading the privacy of protesters all over the country, delving into personal mail and telephone records; after using surveillance to track anti-abortion protester's daily movements, the Justice Department grudgingly announced that no conspiracy could be found.
The only charges brought as a result of the investigation were in response to a young housewife and mother, Jennifer Sperle, who ignited a fire at a local abortion facility. The idea to start the fire was first proffered by a member of the government's undercover investigating team, and the damages amounted to a mere $500. Still, anxious to see something come of the thousands of man-hours and millions of taxpayer dollars, the government prosecuted Sperle and sentenced her to over two years in prison.
The government's failure to find a conspiracy settled poorly on an industry that had worked to see so many prominent politicians, including the president, elected to public office. If the Justice Department could not find a criminal conspiracy, perhaps they could help create one in the civil court realm.

The "Deadly Dozen"

In January of 1995, the Justice Department still stinging from the failure to find a conspiracy to satisfy abortion-industry supporters of the administration, watched as anti-abortionists gathered on the Capital Mall in Washington, DC.
The anniversary of Roe v Wade brought out the usual assortment of social protesters, among them a small group ushering in a new campaign against the abortion industry. Andrew Burnett and David Crane, directors with the newly formed ACLA, were presenting a poster identifying a baker's dozen of abortionists throughout the country.
"The Deadly Dozen" poster, as it came to be called, asked for information leading to the loss of medical licensure and/or conviction of a crime. A reward was offered for anyone working within First Amendment guidelines to bring about the public exposure and legal humiliation of a person engaged in killing Unborn children.
Among those targeted by the campaign were third-trimester abortionist Warren Hern, Robert Crist, known for his mis-matched plaid jackets and garish ties, and a divorced abortion industry duo, Elizabeth and James Newhall of Oregon.

Enter the FBI

As bad luck would have it, unknown to them, Burnett and Crane, by presenting the poster at a press conference, were handing the Justice Department just what they and the abortion industry had been hoping for. The "Deadly Dozen" poster would serve as a vehicle to allow the government to suggest that actual threats of physical harm had been made against individual members of the abortion industry.
According to trial testimony four years later, FBI agent Kenneth Moore and U.S. Marshall James Winters were each contacted by superiors from Washington, DC.
Moore and Winters were instructed to contact specific abortionists named on the poster. They were ordered to inform those they were calling that a poster had been issued which constituted a threat to kill. And each agent was authorized to offer protective services, suggestions for security enhancement that included alternating routes to work, wearing disguises, and purchasing a bulletproof vest.
Following on the heels of the telephone calls, individual abortion providers took advantage of all, some, or none of the protection offered by the U.S. government. And Burnett and Crane left DC without a hint that the poster they had presented to the media was causing so much stir.
In fact, though Planned Parenthood filed a lawsuit in late 1995, it wasn't until trial in January of 1999 that Burnett, Crane, or any of the defendants understood just how clever the abortion industry and her supporters were in using the poster as a weapon against anti-abortion activism. But that is getting ahead of the story.
Once armed with a poster that could be nuanced into a threat by virtue of Justice Department claims in that direction, Planned Parenthood's legal team headed by New York feminist Maria Vullo began grooming individual abortionists for the lawsuit. First one and then another of those named on the poster were contacted and asked to join in a lawsuit aimed at eliminating passionate anti-abortion rhetoric and campaigns to expose singular practitioners.

Served with a lawsuit

Late in October of 1995 a person identifying himself as a reporter called Andrew Burnett's AFLM office and asked to speak with Burnett, Dawn Stover, or Cathy Ramey. He insisted that a lawsuit had been filed at the federal level. Unsure of just who was responsible for initiating the litigation, he asserted that, among other things, the defendants were being charged with racketeering and terrorism.
Hours later the first complaint was served against Cathy Ramey with other defendants receiving service over the next days and weeks.
Within hours of receiving a copy of the complaint, many of the defendants were burning phone wires and writing letters to ask for legal assistance with the enormous legal challenge posed by Planned Parenthood. But in the end groups like Jay Sekulow's ACLJ and John Whitehead's Rutherford Institute were hesitant to get involved. After all, Planned Parenthood had hitched their cause to the biggest law firm on the East Coast.
A fair estimate to adequately defend such a complaint was somewhere around a half million dollars, defendants were told. And in the rush to become the Christian version of the ACLU it was a mighty risk for any Christian legal group to take on a lawsuit that was so expensive that it might fail simply for lack of funding. Christians are not notoriously good givers if the cause is controversial, and here the cause, represented by individual defendants with contentious opinions was not a guaranteed fund-raiser.

No help from ACLU

Almost immediately the ACLU in Oregon held a press conference and indicated a willingness to consider representing one or several defendants. The appeal in the newspaper, according to Oregon director Dave Fidanque, was to encourage those served to call the ACLU office. After all, contrary to Maria Vullo's solicitation of clients, he noted that seeking clients by establishing first contact with them is forbidden under law. Clients must seek out lawyers; lawyers are not allowed to initiate a relationship with a potential client.
Less than two hours after asking to have the complaint faxed to him, Fidanque called defendant Cathy Ramey and instructed her that he had an urgent request. He did not even want to see the lawsuit, and the ACLU would not be able to represent any of the defendants.
A day later Fidanque was quoted in the news from a press release put out by his office. The defendants, he claimed, might have crossed "a broad yellow line" that created concern for the ACLU. In fact, a lunch-hour meeting served to inform Fidanque that the ACLU might choose to argue right along with Planned Parenthood.
Unknown to many who recognize the groups' historic defense of free speech, most of the association's funding no longer comes from such cases. A visit to the group's own Internet site testifies to what it is they are supporting most vigorously these days. The concept of free speech has been well established for at least most Americans. Instead it is the "Reproductive [abortion] Freedom Project" that now serves to fuel Ira Glasser's ACLU.

Legal groups offer assistance

Back on the East Coast at least a few of the defendants were meeting with greater success in locating legal help. Almost immediately Dr. Miller was offered the services of the American Catholic Lawyers Association. Christopher Ferrara, a superb lawyer and public speaker jumped at the chance to become associated with the case.
Another group, the Legal Center for the Defense of Life (LCDL) split a decision over whether or not to become involved. Constitutional attorney Mike Tierney committed his Washington, DC branch to the cause while the New Jersey branch stepped aside because of reservations not unlike those expressed by ACLJ and Rutherford.
The case was expected to be costly, more costly than most non-profit organizations could afford. And the defendants well, their refusal in the past to condemn those who had used force to protect the Unborn had ignited harsh debate within the "pro-life" movement.
In the end a number of changes would occur necessitating that an almost wholly unprepared legal team would need to step in and pick up the pieces when the case finally went to trial.
A year before trial, Mike Tierney, still quite young and just back from a well-deserved vacation fell dead of a heart attack that stunned his family and friends.
Another lawyer associated with the Legal Center for the Defense of Life (LCDL), David Daulton would lose his two-year-old son Daniel to an illness just days before the trial was set to begin in December of 1998. The judge granted a one-month setover, an inadequate amount of time for the Daulton family to recoup from such a devastating loss. In the end, just two weeks before the final trial date, four more attorneys associated with the LCDL would offer their assistance to see the case through trial.
Former Operation Rescue activist and attorney Michael Hirsch and newly licensed Mark Peck joined veteran attorneys Richard Traynor and Dennis Brenan in a flight to the West Coast to defend anti-abortionists, most of whom they had never met.
All of them donated their services with the understanding that what was at stake was nothing less than the Christian's right to be covered by the First Amendment.

The media

Moving toward trial, Planned Parenthood stepped up a program of contacting the media. News stories surfaced by the hundreds proclaiming that a website was going on trial in Portland, Oregon.
In fact, the Nuremberg Files website that presented such a distraction to the media was neither owned nor operated by any defendant in the lawsuit. None of the defendants so much as knew how to contact the owner. (see related story)
Another anti-abortionist, not a defendant, Paul deParrie would finally facilitate bringing in a man by the name of Neal Horsely. Horsely would testify in the trial that he alone made decisions about how his website was constructed and operated.
While the lawsuit was filed in late 1995, Horsely testified that he had only created the now notorious website in late January 1997. Still, Planned Parenthood insisted a connection existed between the site and defendants, and news of the website permeated news stories.
Even a gag order set forth by Judge Robert Jones prohibiting media interviews had little impact on Planned Parenthood's ability to promote the case as they saw fit. Only days after the judge's order was handed down Dr. Elizabeth Newhall granted a TV interview in Oregon. The response from the court was a restrained caution that Planned Parenthood's attorneys simply needed to "control their clients."

Trial as theater

Hampered to some degree by the judge's gag order, Planned Parenthood nonetheless carried out a plan to produce as much theater surrounding the court case as possible.
On January 7, 1999, the first day of trial, valuable downtown parking was capped off for two blocks around the courthouse.
Reporters interviewed police and marshals ominously vowing to protect the public. Better to inconvenience the public for a period of time than to have somebody injured by a bomb, one officer responded.
Planned Parenthood had petitioned, fought, and won a permit to cap off parking by virtue of their shrill claims that the defendants were dangerous. In the end the vacated parking left something of a visual wasteland around the courthouse. Such apparently desperate measures had to have an impact on potential jurors.
To seal the drama, Judge Robert Jones assured the jury pool that they would have complete anonymity. Their privacy would be protected as they answered "sensitive" questions about their own experience with abortion.
But it was not only during voire dire that juror's identities would be safeguarded. The judge insisted that they remain identified by number only throughout the entire trial, and extra marshals were on hand to cautiously usher them around the courthouse.

Building a context

A trial that is intended to smash free speech rights for an entire element of society-any of those opposing abortion-must be skillfully laid out. Any hint from the plaintiffs that the trial was simply one in a long series meant to hem in First Amendment protest, and the jury might flinch and refuse to hammer the defendants.
The premise Planned Parenthood chose to argue was one that they and the Justice Department had apparently spent some time considering long before the lawsuit was filed.

In the Ninth Circuit a novel and broad "context" argument had been created. It was argued that something not factually a threat on the surface could be construed as a threat if other facts might lead a "reasonable" person to draw that conclusion.
Planned Parenthood constructed a list of witnesses with credentials in law enforcement and medical killing meant to suggest that these vested interests were precisely the best definition of a "reasonable" person.
FBI agents, US Marshals, MD's who made a living in the abortion industry, and abortion facility administrators and sympathizers were paraded before the jury. This was the reasoned crowd best suited to discern whether or not two posters and an unknown man's website constituted a threat to physically harm or kill abortionists.
On the other side, partly because of problems arising out of the earlier loss of two key lawyers, the defendants were woefully unprepared for such an attack against simple protest tools. Instead their attorneys hoped that the sincerity of their client's testimony to the contrary would cause the jury to pause.
Additionally, there was concern about exposing other Christians to the kind of abuse generally allowed by judges in these cases. Perhaps to the detriment of the case, physicians, pastors, theologians, anti-abortion movement leaders, family members and stalwart friends were left off of the witness list rather than replay the sorts of humiliations that other innocent parties had undergone when they chose to identify themselves as supporters of the anti-abortion movement.
Defendants would later question tactics that left the jury with only abortion industry promoters as a model of the "reasonable" person. But in the heat of a trial the best defense is always a matter of speculation.

Failure to condemn

A key to creating the context of subtly threatened violence was ultimately hanging on the opinions of the defendants themselves.
Planned Parenthood had chosen roughly a dozen anti-abortionists to mirror the "deadly dozen" listed on one of the posters. Each defendant had publicly refused to condemn specific acts of violence against abortion facilities and abortionists.
One week before the jury was to be called Planned Parenthood trimmed back the case by eliminating two of the defendants. After over three years of litigating against them, Stephen Mears and Dr. Monica Migliorino-Miller were suddenly and without explanation dropped. With a single motion to the court, Mears and Miller were transformed from being characterized as terrorists and racketeers, and back into non-threatening, law-abiding citizens.
The dismissal of two defendants, in the long run, was an act of genius and sacrifice on the part of Planned Parenthood. The dismissals sent a message intended to obscure any notion that speech was the ultimate issue. Planned Parenthood, after all, was saying that the speech of at least two anti-abortionists did not rise to the level of a threat. Never mind that both Mears and Miller were directors of the American Coalition of Life Activists who had created and disseminated the very posters at issue.
As to those left on the case, Michael Bray had written a book entitled A Time to Kill. He offered legal, historical and theological arguments to say that force could be justified when considering the lives of innocent Unborn children.
Advocates for Life Ministries had deigned to publish the book and promote sales in the pages of Life Advocate magazine.
Cathy Ramey authored a biblical apologetic suggesting that those who had used more forceful means to stop abortion might be justified morally even if not legally. Denying basic rights and protections to the Unborn as a class of people, she argued, was inconsistent with biblical morality.
Video clips and quotes from news sources brought home the refusal of all other defendants to condemn an abortionist having been shot. One by one the defendant's own opinion-presumed to be free speech until then-were presented to the jury as if a mere opinion was tantamount to the worst sort of terrorism.
For over two weeks the "context of violence" which Planned Parenthood was allowed to present included information about every abortionist killed or wounded in the U.S. and Canada. Abortionists connected with the case spoke of personal relationships with the dead and thumped on bulletproof vests to emphasize references to their own fears of being targeted.
On the other side, "context" was strictly proscribed. No mention was allowed of how abortion procedures are done, no references or graphics included emphasizing that abortionists themselves are among history's worst victimizers. The Life Advocate magazine, referred to often as singular articles were put forth to bolster claims of animus toward those involved in medical killing, were not allowed into evidence. Excising photos and all references to dead babies was first suggested by the court, and then deemed to be too much of a task for the court to allow. Select articles from the magazine were used to suggest a powerful conspiracy lay at its foundation, but the jury would never be given the opportunity to see a single entire issue.
Both Planned Parenthood and the court abruptly challenged defendants verging on a description of aborted babies or how they had died. Such information, Judge Jones ruled, "might prejudice the jury against the plaintiffs.

Sent to the jury

The case went to trial on January 7, 1999 and concluded in closing arguments on January 26.
Maria Vullo, arguing for Planned Parenthood dramatically focused on testimony revolving around fears expressed by abortionists. Absent were any references to the two posters and website that were said to qualify as threats.
For the defendants, Chris Ferrara skillfully took the "deadly dozen" poster apart line-by-line to demonstrate that in accord with testimony given by abortionist Elizabeth Newhall, not one line constituted a threat of any kind. Other attorneys for the defense followed to argue for individual defendants.
By the end of an afternoon, the jury was assigned to bring in a verdict on the case. Instructions handed them by the judge consisted of 29 pages of confusing contradictions. The intent or lack of intent of defendants to threaten was not to be taken into consideration. But later statements in the document asked the jury to evaluate and exercise their own opinion as to intent. After all, in order to bring in a verdict of guilty under the racketeering statute, by law, intent matters. Clearly, despite disclaimers, the judge was asking the jury to commit their votes to Planned Parenthood.

Christian speech proscribed

On February 2, the jury notified the court that all decisions concerning the case had been made.
In a shocking 30 minute litany of reading first one verdict form after another, each and every defendant was found liable for having threatened to harm or kill abortionists.
The instruments of threat consisted of two posters that nowhere threatened physical harm and explicitly called for common First Amendment protest activities.
The website owned by a Georgia man, a non-defendant, was also determined by the jury to be a "true threat." The owner had listed names of abortionists and supporters. The explicit intent posted on the site, the intent to gather data for a future legal trial when abortion is once again deemed to be a crime against humanity, was rejected and defendants with no control over the site were found liable for any information listed there.
The jury awarded a stunning $109 million dollars in judgments against the remaining 12 anti-abortion defendants.
The judgment was a significant victory, but arguably there was a bigger prize which Planned Parenthood and the judge were seeking. In an outrageous abuse of the courts, anti-abortionists were once again given the message that protest against abortion does not qualify for the rights and protections afforded other protest movements.


Generally a legal complaint in which a threat is alleged results in what is called a "temporary injunction." A hearing is held to determine if a real threat exists. If it is found that one does exist, the accused are enjoined from certain behaviors that are said to constitute that threat.
In this case though, no preliminary injunction was sought for over three years. The conclusion that is most logical is that apart from a trial of smoke and mirrors a case could not have been made to give Planned Parenthood an injunction. And Planned Parenthood, having failed at that level, would have left the court with little reason to allow such a show trial to proceed.
Despite the lack of a preliminary injunction, following a favorable verdict, Planned Parenthood petitioned the court for a permanent injunction. On February 25, 1999 Judge Robert Jones enjoined each and all defendants from republishing or distributing either of the two posters. Additionally, the judge named Life Advocate editor Paul deParrie as an agent and ordered that he and all defendants were to turn over any copies of the posters in their possession.
Last, since Planned Parenthood never sued the Nuremberg Files website and its owner, no order was forthcoming to hinder Neal Horsely from continuing to gather data on a future "crimes against humanity" trial. However, all defendants have been threatened with contempt-a fine and/or jail-if they supply so much as an abortionist's name to Horsely or establish any sort of similar website.
Lawyers for the 12 defendants are appealing the decision and anticipate that the case will eventually be heard in the U.S. Supreme Court.

Smoke and mirrors
From the record
Coorespondence from the courtroom