ARTICLES

Lawyer, Judge Buttress Baby Killers

ANYTHING TO GET RID OF THOSE GRISLY PHOTOS

Early on March 20, as on several occasions in the past year, Duke Weilbacher headed for Planned Parenthood's Mission Valley abortion clinic to pray the rosary and picket on the sidewalk with his "Abortion Hurts Women" sign. This time would be different, however, as he described it to me. Planned Parenthood's security guard, accompanied by a police officer, served him with a restraining order, and told him he was not permitted to be there with his sign. "It didn't really sound right," Weilbacher commented. "I thought the Constitution said that I could have free speech." The policeman informed him that he was present merely to witness him being served with the restraining order and requested that he provide his name. Weilbacher handed the policeman a business card, which the policeman showed to the security guard, who copied the information. Weilbacher then left.

Weilbacher was unaware that, on March 11, Planned Parenthood of San Diego and Riverside Counties filed a lawsuit against pro-life activists Kenneth Scott, Ronald Brock, Cheryl Sullenger, Sylvia Sullivan, Troy Newman, and Jo Ann Kreipel. Nor did he know that, on March 12, Planned Parenthood had obtained a temporary restraining order from San Diego County superior court judge Richard Strauss, which, among other things, requires that the six defendants and "all other persons served with this notice, and/or their agents, representatives, and all persons acting under or participating with or aiding or abetting them" cannot assemble, picket or demonstrate any closer than 25 feet of any entrance or exit to 1075 Camino del Rio South, must stand in single file at least three feet apart, and cannot display "photographs/posters/visual depictions/literature which are larger than eight and one-half inches...by ten inches...on any vehicle, tree, utility pole, person, sidewalk, lawn, Property 1 [the building housing the Planned Parenthood clinic, its parking lot, driveways and "adjacent property"], within 500 yards of Property 1."

The injunction sought in the lawsuit would enforce the same restrictions. Planned Parenthood seeks monetary, nonmonetary and punitive damages. The complaint states that it will be amended to allege the "true names and capacities" of Does 1 through 100 "when ascertained." With an assist from a police officer, Planned Parenthood was able to ascertain Weilbacher's name. Planned Parenthood's complaint alleges the following: "(a) Beginning on or about January, 1999, defendants have entered onto [the property of Planned Parenthood and neighboring businesses] without the consent of the tenants or property owners. (b) defendants have harassed and intimidated Planned Parenthood's patients, employees and visitors at Property 1, and at [neighboring businesses] through various means including the following: (1) Harassing, attacking, annoying and forcing unwilling viewers (especially children) to see violent, bloody depictions of decapitated, gruesome, distorted fetuses which are depicted as 'real' and to scale on five foot by six foot blow-up poster boards. (2) Shouting and stating death threats to Planned Parenthood employees and visitors...and telling them that they will die if they enter the Planned Parenthood building. (3) Videotaping and/or photographing Planned Parenthood's patients, employees and visitors as they enter the driveway and entrance of Property 1. (4) Affixing violent, bloody depictions of...distorted fetuses...onto Planned Parenthood property.... (5) Shouting, yelling, screaming and chanting in a loud manner. (6) Obstructing the Planned Parenthood driveway in an attempt to prevent employees, patients and visitors from entering Property 1. (7) Obstructing the free-flow of sidewalk traffic directly surrounding [Planned Parenthood and neighboring businesses] in an attempt to prevent employees, patients and visitors from entering Property 1. (8) Directing verbal harassment toward Plaintiffs and/or their employees, visitors and/or patients."

Planned Parenthood provided seven declarations to support its complaint: four from its own employees, one from a sixteen-year-old Planned Parenthood volunteer, one from an employee in a nearby office building and another from a co-owner of another nearby office building. While the complaint states that the plaintiffs (Planned Parenthood employees Marie Wilkerson, Avecita Mucino and Vanessa Ayala) "have suffered, and will continue to suffer...physical injury," none of the declarants mention any incidents of physical violence perpetrated by the picketers, although William C. Green, Planned Parenthood's security director, accuses the defendants of "physically intimidating any persons attempting to enter Planned Parenthood or the adjoining properties." Green also made these statements: "Physicians, health care workers, and security guards have been murdered, wounded, or badly maimed at the hands of anti-abortion zealots.... Consequently, we at Planned Parenthood have a...concern for our safety and the safety of our patients and clients."

Most of the declarants' statements concern the display of the large, aborted baby posters on the sidewalk and on pro-lifers' vehicles. Green seemed particularly riled by Brock, who, of all the defendants, has by far spent the most time at Planned Parenthood. Green claims that a Planned Parenthood doctor, a Dr. Byrnes, feared that Brock would stalk him, that Brock wrote something down each time a person or vehicle entered Planned Parenthood's driveway, and that he had "seen him over the past two years being disruptive, vocal and physically intimidating to clients, guests and personnel of Planned Parenthood and the adjoining neighborhood business clientele and staff."

He went on: "I have also observed Brock taking pictures, vocally challenging others, and physically intimidating any persons attempting to enter Planned Parenthood or the adjoining properties. I have also witnessed Scott, Sullinger [sic], Sullivan, Newman, and Kreipel participating in the same types of activities." Others familiar with Brock's picketing style describe it as very reserved, in stark contradiction to Green's descriptions. Brock was out of town when I tried to reach him for comment on Green's allegations.

Attorney Rick Vattuone, who has previously represented Brock, said emphatically, "He's an absolute, perfect gentleman, and to suggest that he's doing something illegal is an outrage." Sullenger, California Life Coalition director, described Brock's picketing routine: "Ron [Brock] could have been writing his grocery list, for all we know. He sits out there on his little stool. He's all by himself.... He sets his signs up, he gets his stuff out, he reads his Bible, he goes through his mail. I've seen him do it 100 times.... He may have taken a picture if someone was threatening him, because that's what we use the camera for, is to back people off." Referring to Planned Parenthood's accusations against Brock, Weilbacher commented, "I've watched him [picketing]; he doesn't do any of that stuff."

To further buttress its legal actions, Planned Parenthood provided 28 photos of pro-life picketing activity at the clinic, five of which are photos of two vans plastered with large pro-life placards. The vans' license plate numbers are listed in the photo descriptions. Although Planned Parenthood operatives have photographed, videotaped and taken notes on pro-life picketers and their vehicles' license plates, Planned Parenthood seeks to bar the defendants doing the same to its employees, patients and visitors.

One photo is described as depicting "a pedestrian and Defendant Troy Newman having a face-to-face confrontation and Defendant Cheryl Sullinger [sic] photgraphing [sic] the event." Sullenger's version is that the pedestrian was bumping into pro-lifers as he walked down the street and became angry after Newman said something to him. When the pedestrian then started poking Newman in the shoulder, she began taking photos, upon which he left immediately. "Those pictures were to back the guy off and document any battery in case things got ugly," Sullenger explained.

In one photo, Sullenger appears to be standing next to the driver's side of a small truck as it exits Planned Parenthood's driveway. Planned Parenthood claims that it shows her blocking the vehicle's exit. It makes the same claim for two other photos in which Sullenger appears to be leaning over, in conversation with the driver of a car stopped at the driveway exit. This was followed by a photo of Sullenger in the driveway just after the car in the two aforementioned photos pulled out into the street. "Those people [in the car] called me over there [to the driveway] to tell me they were keeping their babies [twins]," Sullenger maintained. "Then they drove off, I picked up my sign and left.... It was only a second that they [the car] had been out of the driveway. But they [Planned Parenthood] were saying that it was showing me protesting in the driveway." In another, Newman appears to be on the sidewalk, holding a large, grisly poster at the side of the driveway, which Planned Parenthood described as "Troy Newman protesting in the driveway." Another photo purports to depict a "blockade of anti-abortion protestors." Most of the remaining photos simply show protesters displaying various pro-life signs on the public sidewalk outside Planned Parenthood, and the adjacent Wendy's and Denny's restaurants.

In Channel 10's March 15 11:00 p.m. newscast, reporter Herb Cawthorne stated: "For the last three weeks Operation Rescue has been here at Planned Parenthood, picketing, saying controversial things to the staff and the clients who come here. Planned Parenthood thought it was getting much too close to violence, and that's when they went to a judge and asked him to give them a restraining order." "They have been very aggressive and very confrontational," San Diego attorney James McElroy, representing Planned Parenthood, said in his interview. "Yeah, that's for instance, yelling out to people who are coming into our clinic, both [sic] staff, physicians and patients, 'You're going to die in there today.' And then the very next day [March 13] you have North Carolina; you have a family planning clinic where a bomb partially explodes." Meanwhile Channel 10 showed footage presumably of the Asheville, North Carolina incident.

Speaking for the pro-lifers was Sullenger, who disputed Planned Parenthood's assertion that it does not oppose free speech: "What they're doing is stopping us from giving our message to women who need it." Cawthorne also reported that "Sullenger contends her organization is being smeared, with exaggerated claims like making death threats, which she says, never happened." During its report Channel 10 also showed several tranquil scenes of pro-life picketers lined up neatly on the public sidewalk in front of Planned Parenthood, quietly praying the rosary and standing near enough to the curb to enable sidewalk traffic to flow freely behind them. Sullenger said she told Cawthorne: I've...never heard any pro-lifer make a death threat, or say 'You're going to die today' or anything like that'.... I know the guys who are accused of doing it...and they would never say anything like that."

Ironically, of the six named defendants, only Brock and Scott had picketed Planned Parenthood within the last few years, except for February 20, the day when twenty pro-lifers showed up in a Point Loma neighborhood for a house picket of abortionist Dr. David Priver. When it was discovered that Priver no longer lived there, the group, which included Brock, Sullenger, Sullivan, and Newman, instead picketed Planned Parenthood for roughly an hour. During that time a man from outside the group took numerous photographs of the picketers, several of which are included in McElroy's photo exhibit. One eyewitness described the overall mood among the picketers as relaxed, with most socializing among themselves while holding large signs, in contrast to Green's description of them being "very vocal" and "yelling and screaming at the passing motorists, pedestrians, patients, and Planned Parenthood staff who were either entering or leaving the facility."

Brock has been picketing Planned Parenthood about once a week for roughly two years. Scott, who, along with his wife, Jo Ann (Kreipel) Scott, was visiting from out of town in late February and early March, accompanied Brock to Planned Parenthood several times during his visit, according to Sullenger. The Scotts were unavailable for comment before press time, and I was unable to determine whether Mrs. Scott (also a named defendant) had picketed the clinic during their recent stay in San Diego. Sullenger was under the impression that she had not.

I questioned Newman, of Operation Rescue West, on the harassment and intimidation charges. His response: "We're not forcing anybody to look at it, but we are showing the entire world what this so-called business does...and that is, kill children." Death threats? "Ludicrous. Planned Parenthood, I know, is equipped with recording equipment and video equipment. If they've got the proof, I challenge them to bring it forward, but they have none.... One thing I've learned in my work with abortion clinics is that when you say things like, 'Abortion is murder, abortion kills children, abortionists murder babies,' things like that -- you describe exactly what they do -- the things that they hear, or what they think they hear, are 'Murder abortionists; you're going to die,' that type of thing. When we give them the Gospel...we tell them a way to escape eternal damnation is to believe and trust in the Lord eternal, and they take that as a death threat."

On videotaping and photographing: "We, on a regular basis, video and photograph our events for our protection, as well as for newsletters.... It's not illegal. We don't photograph patients, although that, in and of itself, is not illegal either." On writing down license plate numbers: "On a regular basis, I attempt to obtain information about who is killing children. I want the world to know who is killing babies." Newman added that this is legal, to his knowledge, and pointed out that "they [abortion clinics] copy down our license plate numbers all the time; it's a regular, known thing. How can it be an act of privacy when you've got it [a license plate number] plastered on the front and back of your own car, for the whole world to see?"

Regarding charges of shouting and screaming: "Speaking at an audible level, where the prospective, abortive moms can hear you is reasonable, and we do that on a consistent basis.... 'Ma'am, if you're considering abortion, we want to talk to you today, there is another choice'.... I'm sure we fall within the local city ordinance." Newman denies obstructing Planned Parenthood's driveway: "Again, I would defer to local city ordinances, and if there's one that we've broken, arrest me. But we have not. They have cameras, they've got video cameras and recording devices. They cannot bring forth any evidence to show that we've obstructed a driveway."

He likewise denies obstructing sidewalk traffic: "No, absolutely not. Why would we?" Newman confirmed that many conversations that ensue during picketing are initiated by passersby who react to the large signs: "The whole idea is public debate.... That's what the First Amendment is all about. We're on public property.... And we're going to use every means...available to us legally to...exhibit that abortion is murder."

In her March 13 e-mail to a list of notables, including media members, Sullivan made the following statements: "When people used to rescue (blockade clinics) they were told, 'You have the right to picket; just don't rescue and trespass.' When people did the 'Show the Truth' tours, they were told: 'Don't bring those aborted baby pictures to the public streets and schools. You should show them where the abortions take place.' So now even the right to legally picket is endangered."

The defendants are represented by attorneys Rick Vattuone of La Jolla and Kevin Snider of the U.S. Justice Foundation in Escondido. Vattuone accuses Planned Parenthood's attorneys of making misrepresentations to a court about the need for a restraining order at Planned Parenthood: "As I read the declarations, everything the defendants did was constitutional, and protected constitutional activity. All they were doing was carrying signs on the sidewalk. One of the things conspicuously absent from the injunction papers is a description of the property line.... The people in the declarations say they [the defendants] were trespassing, but none of the photographs support that. So, for that reason, the judge should have denied the injunction completely.... There is no urgent circumstance, there is no threatening situation, there's never been any violence. This is just another example of Mr. McElroy and Planned Parenthood attempting to deny free speech activists their First Amendment rights."

Snider described the Planned Parenthood suit as "basically an attempt to take pro-life picketers off the street. "Vattuone criticized Planned Parenthood's attorneys for the manner in which the order was obtained: no notice was given to the defendants. He called the omission "a serious breach of ethics." Vattuone explained that notice is required under the law, unless it is impossible to locate the defendants, or if there is a circumstance wherein notice should not be given. He said that, shortly before the suit was filed, attorneys for Planned Parenthood had been in contact with another attorney representing Brock at the time and were also aware that Vattuone had previously represented him. Thus, said Vattuone, Planned Parenthood's attorneys could easily have notified Brock beforehand through either attorney. Brock was served at Planned Parenthood on March 13 (the lawsuit and temporary restraining order were filed on March 11 and 12, respectively)

James McElroy, one of Planned Parenthood's attorneys, has had previous dealings with Newman, Sullenger and Sullivan, and Sullivan said, he "knew that our attorney...knows how to get in touch with us." "They had a hearing without us," complained Sullenger, who was served at her home on March 15. "He [McElroy] said in one of his declarations that he followed all the procedural rules; he signed it under penalty of perjury, and I thought, 'What a liar!'" Scott was served on April 1 in Denver. McElroy and Planned Parenthood have a history of pursuing legal action against local pro-lifers, and Newman and Sullenger recall that several years ago McElroy told them that it was his life's work to get people like them off the streets.

Pro-lifers formerly affiliated with the now-defunct Operation Rescue of California report that, in an earlier case (Dym v. White), McElroy failed to notify them. Vattuone notes that, in the last few months, Planned Parenthood has become more aggressive in its legal actions toward pro-lifers: "We're being overrun, basically.... It's the same type of frivolous lawsuit, but the number and intensity are increasing."

The pro-life signs that most irritate Planned Parenthood are the large, aborted baby signs, according to Vattuone, and he believes its primary motivation for this lawsuit is to get them prohibited because of their effectiveness in showing the truth about abortion.

In her March 13 e-mail, Sullivan asserted: "The major problem for the abortion industry is that the large aborted baby pictures depict the reality of abortion and it's bad for business." Indeed, in its complaint, Planned Parenthood, a nonprofit organization, made several allegations indicating its concern over loss of business: "...Many of the Planned Parenthood patients are extremely upset as a result of defendants' actions. As a result, employees of Planned Parenthood have had to spend increased time counseling patients.... Plaintiffs have incurred economic damage as a result of defendants' actions...."

In his declaration, Rodney L. Niebuhr, co-owner of nearby Mission Center Office Suites, claimed to have suffered business losses due to the pro-life presence, and said, "I have been informed that Wendy's receives numerous complaints...and that they have lost business due to the presence of these images." Wendy's did not make any declaration of its own. Green, the clinic's security director, states that a Denny's manager told him that patrons have left the restaurant without being served after viewing the large signs. Nonetheless, Denny's did not make a declaration. "What seems even stranger about the whole thing is that the businesses would be concerned about the signs themselves, but not at all about...what's going on in that building next to them," Weilbacher observed.

The defendants are being represented on a pro bono basis, which, Vattuone said, has now become a financial burden in the wake of Planned Parenthood's increased legal pressure. Vattuone and Snider moved the case from superior court to federal court on March 23. Vattuone reported that, at the March 24 hearing on the restraining order, the superior court acknowledged that it no longer had any jurisdiction over the case. As for what will happen next, Vattuone said: "It's up to Planned Parenthood. These people [pro-lifers] will continue to...exercise their Constitutional rights in a lawful manner.... We fully expect that eventually it [the case] will be dismissed, for lack of merit."

On March 27, about seventeen pro-lifers again picketed Planned Parenthood. Picketers provided proof that Planned Parenthood's injunction was no longer valid to two police officers it summoned to the clinic, whereupon the officers dropped their plans to make arrests. During the picket, a woman identified by a Planned Parenthood security guard as a Planned Parenthood patient or employee, told one of the attorneys present, "I'm going to run your ass over on the way out." One participant reported that news of the lawsuit had actually stimulated interest in picketing among members of his local pro-life group, rather than discouraging them. At press time, the pro-lifers had scheduled another picket of Planned Parenthood on April 24. While there is debate among pro-lifers themselves regarding the effectiveness and appropriateness of the large, graphic aborted baby signs, two facts emerge clearly from this lawsuit: Planned Parenthood does not want such signs displayed anywhere near its abortion clinic.

Donations to support the legal defense of pro-life activists can be sent to Life Legal Defense Foundation, Dept. W, Box 2105, Napa, CA 04558, 707-224-6675 and the U.S. Justice Foundation, 2091 East Valley Parkway, Ste. 1-C, Escondido, CA 92027, 760-741-9655. The USJF engages in constitutional rights litigation and education of the public.