National Abortions Federation v. Operation Rescue Jeff White Joseph Foreman Dr. Randy Adler John & Jane Does 1-100

8 F.3d 680 62 USLW 2284 NATIONAL ABORTIONS FEDERATION, et al., Plaintiffs-Appellants, v. OPERATION RESCUE; Jeff White; Joseph Foreman; Dr. Randy Adler; John & Jane Does 1-100, Defendants-Appellees. No. 90-55199. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1990. Submission Withdrawn Dec. 13, 1991. Resubmitted Oct. 22, 1993. Decided Oct. 29, 1993. Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, CA, Betty Wheeler, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, Paul Persons, Chico, CA, for plaintiffs-appellants. Victor L. Smith, Los Angeles, CA, Samuel B. Casey, Whittier, CA, Cyrus Zal, Folsom, CA, for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before HUG, and TROTT, Circuit Judges, and REED, * District Judge. HUG, Circuit Judge: 1 This is an appeal from the dismissal of a class action seeking injunctive and declaratory relief to prevent Operation Rescue and others from interfering with women's access to abortion clinics and preventing and hindering state law enforcement officials from securing to women the ability to exercise that constitutional…

This is an appeal from the dismissal of a class action seeking injunctive and declaratory relief to prevent Operation Rescue and others from interfering with women’s access to abortion clinics and preventing and hindering state law enforcement officials from securing to women the ability to exercise that constitutional right, 721 F.Supp. 1168 .

During the pendency of this appeal, the United States Supreme Court granted certio-rari in a case involving a similar situation, in *681 which abortion clinics and organizations having members who wish to use the clinics brought an action against Operation Rescue for blocking the access of women who sought the services of the clinic. That ease presented issues of whether provisions of the Ku Klux Klan Act, codified at 42 U.S.C. § 1985 (3), could be invoked as a basis for relief. Nearly identical issues are involved in this case. Therefore, submission of this case was withdrawn pending the decision of the United States Supreme Court. The Court has rendered its decision in Bray v. Alexandria Clinic, 506 U.S.—, 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993), and we hereby resubmit this case.

The Supreme Court in Bray held that the first clause of…

concurring and dissenting:

With four apparent votes on one side of the “hindrance” or “prevention” clause issue, and four on the other (albeit supported by dissonant reasoning), we do face a practical dilemma caused by a new justice on the court who has yet to be heard on this contentious issue. The dilemma, however, simply requires us to use our best efforts to analyze this clause of the statute in the light of its plain language and applicable precedents as we do our best to render a proper decision in this case. After considerable study, and with respect and appreciation for the thoughtful work done by Judge Hug, it is my opinion that Justice Scalia’s “hindrance” clause analysis in Bray v. Alexandria Women’s Health Clinic, 506 U.S. —, 113 S.Ct. 753 , 122 L.Ed.2d 34 (1993) is persuasive. My conclusion in this regard rests not only on the analytical views expressed by Justice Scalia and four of his colleagues, but also on my belief that it is inappropriate for a court of appeals judge essentially to write off Griffin *688 v. Breckenridge, 403 U.S. 88 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971) and Carpenters v. Scott, 463 U.S. 825 , 103 S.Ct. 3352 , 77 L.Ed.2d 1049 (1983). Justice…