Northeast Women's Center, Inc. v. McMonagleNortheast Women's Center, Inc. v. McMonagle
OPINION OF THE COURT
Following a lengthy trial in this action brought by a women’s health center against a group of anti-abortion activists, the jury returned a verdict for plaintiff on its claims under civil RICO and the state torts of trespass and intentional interference with contract. On appeal, plaintiff challenges the district court’s use of the unclean hands doctrine to limit the injunc-tive relief given and the court’s order setting aside the jury’s punitive damage award. Defendants, who have filed multiple briefs, raise more than twenty issues on their cross-appeals, including the application of civil RICO, the availability of the justification defense, and various claims of prejudicial error at trial.
Although issues on appeal are generally considered first, we begin with a discussion of the matters raised on defendants’ cross-appeal because, if defendants’ contentions are correct, we need not reach the appellant’s issues. We will confine our opinion to those issues raised by defendants that we believe merit discussion.
I.
Facts and Procedural History
Plaintiff-appellant, the Northeast Women’s Center, Inc. (Center), is a Pennsylvania corporation which provides gynecological services, including pregnancy testing and abortions. The defendants-appellees are twenty-six individuals
The Center has emphasized throughout this litigation that it is not challenging Defendants’ free speech right to make public their opposition to abortion. Instead, this lawsuit was brought alleging illegal and tortious activity by Defendants that went beyond Defendants’ constitutional rights of speech and protest.
The Center presented evidence at trial that established that Defendants unlawfully entered the Center’s facilities on four occasions. On December 8, 1984, approximately fifty protestors, including twelve Defendants, rushed into the Center’s premises, which at that time were located at 9600 Roosevelt Boulevard in Northeast Philadelphia, and knocked down Center employees who attempted to prevent the mass entry into the building. Once inside, Defendants and others blocked access to rooms and strewed medical supplies on the floor.
Ardis Ryder, then acting administrator of the Center, testified that she decided on the basis of this incident to hire security guards for the first time in the Center’s history to protect the safety of its employees and patients. One employee testified that she sustained injuries during this incident while attempting to prevent Defendants and others from forcing their way into a patient treatment room. She testified that as a result of such harassment she resigned from her position at the Center, and did not resume employment at the Center until after it installed a sophisticated security system. Twelve Defen
On August 10, 1985, twelve Defendants pushed into the Center’s premises. An employee who was injured as a result of Defendants’ activities lost work time. Another employee testified that after members of the group locked themselves in an operating room, she observed a Defendant leave the operating room with an object concealed under his coat. When the employee entered the room she discovered that machinery had been damaged and disassembled. Twelve Defendants were arrested and subsequently convicted of defiant trespass for the August 1985 incident. App. at 634; see Commonwealth v. Markum,
On October 19, 1985, there was another attempt by anti-abortion activists to enter the Center. A number of persons were arrested, including twenty-four Defendants. App. at 635. Two persons did manage to rush through the doors and enter, knocking down a Center employee. Three Defendants were subsequently convicted of defiant trespass. App. at 635-36.
The fourth trespass that was the subject of the federal suit took place on May 23, 1986. The jury was shown a videotape of the incident, which showed protesters sitting down on the floor of a waiting room inside the clinic, standing in front of patients awaiting services and castigating them, and ignoring repeated requests that they cease trespassing and leave the building. Exhibits P-76, P-77. One Defendant stated, “We’re going to shut this place down.” The police eventually removed the trespassers. There was testimony that other Defendants who were outside the premises blocked the doors to the Center and the building in which it was located. Twenty-six persons, including sixteen Defendants, were arrested and fifteen Defendants were subsequently convicted for criminal conspiracy, disorderly conduct, and/or defiant trespass as a result of this incident. App. at 637-38.
Witnesses at the trial in this case testified that on these and other occasions they observed Defendants photographing patients, chanting through bullhorns, blocking building entrances, and surrounding and pounding on the windows of employees’ cars. In fact an assistant district attorney who witnessed a demonstration testified that the demonstrators’ activity rose to a “frenzy” and that he delayed leaving the Center out of fear for his physical safety. App. at 791-93. Videotape evidence revealed demonstrators pushing, shoving and tugging on patients as they attempted to approach the Center, knocking over and crossing beyond police barricades and blocking the ingress of cars. A protester is recorded stating, “I bet you ten to one this place doesn’t last six months.” Another added, “This place is going to be shut down.” Exhibits P-6, P-76, P-77. A doctor employed by the Center testified that the sound of chanting, amplified by bullhorns, was audible in the Center’s operating room. Another doctor testified that this noise would put patients “under considerably greater stress,” especially when going under or coming out of general anesthesia. App. at 433.
Three employees testified that they were repeatedly subjected to picketing at their homes. Two of these employees stated that they resigned from their positions at the Center because of Defendants’ actions at their homes and the Center.
In July 1986, the Center lost its lease and moved to a new location. Both the director of the Center and defendant McMonagle, a leader of the activists, attributed the Center’s loss of its lease to Defendants’ activities at the Center.
In August 1985, the Center filed a civil suit in the United States District Court for the Eastern District of Pennsylvania, alleging that Defendants had agreed among themselves and others to disrupt the Center’s business and injure its property by, inter alia, harassing the Center’s clients and employees, unlawfully entering on its property, and destroying and damaging medical equipment. The Center sought damages and injunctive relief under the Sherman Antitrust Act, 15 U.S.C. §§ 1, the Clayton Act, § 15, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the common law torts of trespass and intentional interference with contractual relations. The district court denied Defendants’ motion to dismiss the complaint. Northeast Women’s Center, Inc. v. McMonagle,
Thereafter, the Center sought preliminary injunctive relief, contending that Defendants had intensified their harassment of patients and staff, that they were acting to prevent the Center from moving to its new location, and that Defendants had forcibly entered its premises twice since the complaint was filed. The district court’s denial of a preliminary injunction was vacated by this court because the district court had not made the factual findings required under Fed.R.Civ.P. 52(a). Northeast Women’s Center, Inc. v. McMonagle,
At the close of a three-week trial, the district court directed a verdict in favor of Defendants on the Sherman Act charge, but sent to the jury the remaining RICO, trespass, and intentional interference with contract claims. In response to a detailed series of interrogatories prepared by the district court, the jury found twenty-seven Defendants liable under RICO and assessed $887 in damages on this claim, reflecting the cost of repairing certain medical equipment, which the district court trebled pursuant to 18 U.S.C. § 1964(c) (1982). The jury found that three Defendants had interfered with the Center’s contracts with its employees but found no proximate loss to have resulted from this interference and awarded no damages on this claim. Finally, it found twenty-four Defendants liable for trespass, and assessed $42,087.95 in compensatory damages and $48,000 in punitive damages ($2,000 per defendant).
The district court denied Defendants’ motion for a new trial and judgment notwithstanding verdict except that it granted j.n. o.v. on the punitive damages award and set aside the jury’s award of punitive damages on the ground that the Center had substantially prejudiced Defendants by failing to request punitive damages in a timely and consistent manner and by successfully precluding Defendants from presenting evidence of motive that would have been relevant on the punitive damages issue.
The court declined to give the Center any injunctive relief on its successful claims on the RICO and interference with contract counts on the ground that such relief was barred by the doctrine of unclean hands, based on evidence that a physician practicing at the Center had failed to comply with a fetal tissue inspection provision of the Pennsylvania Abortion Control Act, 18 Pa. Cons.Stat.Ann. § 3214(c) (Purdon 1983).
The court granted injunctive relief on the Center’s trespass claim, however, and enjoined Defendants from entering the Center’s premises, entering the parking lot adjacent to the Center for the purpose of protesting there, blocking or attempting to
As noted above, each side appeals. We turn first to the Defendants’ challenge to the jury’s verdict under civil RICO, the only remaining federal claim.
II.
Issues on Cross-Appeal
A. Application of Civil RICO
Plaintiff pled, and the jury’s verdict shows that it found, a RICO violation based on a pattern of extortionate acts as defined under the Hobbs Act. The civil provisions of RICO allow “[a]ny person injured in his business or property” through a violation of the statute to file suit in federal district court. 18 U.S.C. § 1964(c) (1982). A defendant may be held liable under RICO for engaging through an enterprise in “a pattern of racketeering activity,” 18 U.S.C. § 1962(c),
In Sedima, S.P.R.L. v. Imrex, Co.,
Defendants argue that because their actions were motivated by their political beliefs, civil RICO is inapplicable. Defendants’ description of their conduct as “civil disobedience” does not thereby immunize it from statutes proscribing the very acts the jury found Defendants committed.
In upholding a conviction under RICO over defendants’ objection to the government’s contention that the robberies were committed to finance defendants’ religious Black Muslim organization, this court stated, “The First Amendment, which guarantees individuals freedom of conscience and prohibits governmental interference with religious beliefs, does not shield from government scrutiny practices which imperil public safety, peace or order.” United States v. Dickens,
The district court told the jury, “The First Amendment of the United States Constitution guarantees the defendants a right to express their views. The defendants have a constitutional right to attempt to persuade the Northeast Women’s Center to stop performing abortions. They have a constitutional right to attempt to persuade the Center’s employees to stop working there and they have a constitutional right to attempt to persuade the Center’s patients not to have abortions there.... The mere fact, also, that the defendants or some of their protests may be coercive or offensive, does not diminish the First Amendment right to a protest.” App. at 1010.
However, the court also told the jury, correctly, that, “the First Amendment does not offer a sanctuary for violators. The same constitution that protects the defendants’ right to free speech, also protects the Center’s right to abortion services and the patients’ rights to receive those services.” App. at 1011. The jury’s award of damages under RICO was based on the destruction of the Center’s medical equipment during one of the incidents of forcible entry into the Center. This award establishes that the jury found that Defendants’ actions went beyond mere dissent and publication of their political views.
Defendants also argue that the Center failed to show that it suffered an injury to its “business or property” as required by RICO. 18 U.S.C. § 1964(c). The district court explicitly charged the jury with respect to this requirement. App. at 1020. Although Defendants argue that the Center failed to show any economic injury from the RICO violation, in effect Defendants’ argument slides from the injury requirement under RICO to their claim that the Hobbs Act does not cover extortion of intangible rights. We will keep these issues analytically distinct. The RICO requirement of injury is met by evidence of injury to plaintiff’s business or property. The Center claimed that it suffered tangible injury to its medical equipment during the forcible entry which was part of the alleged pattern of extortionate acts designed to drive it out of business. RICO requires no more. In Sedima, the Court rejected the notion of any distinct “racketeering injury,”
Defendants also challenge the application of the Hobbs Act, which provided the predicate offenses under RICO. Defendants argue that the court’s charge failed to deal “with the economic motivation behind the crime of extortion,” which they claim is a necessary element under the Hobbs Act. Brief of Cross-Appellants O’Brien et al. at 26 (hereafter “O’Brien Brief”).
Defendants contend, however, that “economic injury” is an essential element of extortion when it is used as a RICO predicate offense. O'Brien Brief at 29. They argue that the court’s charge improperly relied on extortion of intangible “rights”. Id. at 28.
The “right” on which the Center’s case was predicated was the right to continue to operate its business. The Center’s extortion claim was that Defendants used force, threats of force, fear and violence in their efforts to force the Center out of business. The court told the jury that, “[specifically, defendants are charged with attempting and conspiring to extort from the Center its property interest in continuing to provide abortion services[;] from its employees, their property interest in continuing their employment with the Center[;] and from patients, their property interest in entering into a contractual relationship with the Center.” App. at 1009.
Rights involving the conduct of business are property rights. As we pointed out in United States v. Local 560,
other circuits which have considered this question are unanimous in extending the Hobbs Act to protect intangible, as well as tangible, property. See United States v. Zemek,634 F.2d 1159 (9th Cir.1980), cert. denied,450 U.S. 916 ,101 S.Ct. 1359 ,67 L.Ed.2d 341 (1981) (right to solicit business accounts); United States v. Santoni,585 F.2d 667 (4th Cir.1978), cert. denied,440 U.S. 910 ,99 S.Ct. 1221 ,59 L.Ed.2d 459 (1979) (right to make business decisions free from outside pressure wrongfully imposed); United States v. Nadaline,471 F.2d 340 (5th Cir.), cert. denied,411 U.S. 951 ,93 S.Ct. 1924 ,36 L.Ed.2d 414 (1973) (right to solicit business accounts); United States v. Tropiano,418 F.2d 1069 (2d Cir.1969), cert. denied,397 U.S. 1021 ,90 S.Ct. 1262 ,25 L.Ed.2d 530 (1970) (right to solicit business accounts).
It is, of course, no defense to extortion that Defendants did not succeed in their ultimate goal, although, as McMonagle’s own letter admitted, Defendants’ activities did contribute to the Center’s loss of its lease at the Roosevelt Boulevard location. App. at 480-83; see note 3 supra. Attempted extortion and conspiracy to commit extortion are crimes under the Hobbs Act, see 18 U.S.C. § 1951(a), and “any act which is indictable under [the Hobbs Act]” is a predicate offense under RICO. 18 U.S.C. § 1961(1)(B). We thus reject Defendants’ challenges dealing with the RICO verdict.
B. The Justification Defense
Defendants argue that the district court erred in precluding the admission of evidence relating to their claims of justification and in failing to charge the jury regarding such a defense. The district court relied on our opinion in United States v. Malinowski,
Similarly, in United States v. Romano,
Defendants argue, however, that justification is a defense under Pennsylvania law, citing to the Pennsylvania Crimes Code, 18 Pa.Cons.Stat.Ann. § 503(a) (Purdon 1983)
In a subsequent case, the Court applied the Capitolo factors to the justification defense codified under another section of the Crimes Code. Commonwealth v. Berrigan,
The test in Capitolo was recently applied by the Superior Court of Pennsylvania in Commonwealth v. Wall, 372 Pa.Super.
The same analysis is applicable here. We emphasize in particular the numerous legal alternatives that Defendants had available to pursue their goal of persuading women not to have abortions. For example, they could continue to march, go door-to-door to proselytize their views, distribute literature, personally or through the mails, and contact residents by telephone, short of harassment. See Frisby v. Schultz, — U.S. -,
In one of their reply briefs, Defendants argue that Wall should be distinguished because the court there did not focus on Defendants' argument made here that abortions conducted in the second, as opposed to the first, trimester of pregnancy, together with the harm suffered by women undergoing abortions, amount to a harm of sufficient magnitude and imminence that the justification defense should be allowed. Because Defendants must meet each Capi-tolo factor, however, see Capitolo, 508 Pa. at. 378-79,
C. The Conduct of the Trial
Defendants rather vehemently complain about the conduct of the trial. They point to a number of rulings by the district court which they argue constitute reversible error either as considered severally or as added together to create an unfairly prejudicial atmosphere at trial. In particular, they challenge the court’s grant of the Center’s motion in limine to exclude evidence of Defendants’ motives and its refusal to grant a mistrial after the Center’s counsel made several allegedly “prejudicial and inflammatory” statements.
The jury was told in the Center’s opening remarks that Defendants were opposed to abortion as a matter of principle. The court, in its jury charge, told the jury that “[w]e know why these people are up there and that is because they disagree with the position of the plaintiffs, that there should be abortions performed.” App. at 946.
However, the district court’s order precluded Defendants from putting on further evidence of their motives without making a prior showing, of relevance.
The district court’s orders denying Defendants’ motions for a mistrial based on the allegedly inflammatory remarks made by the Center’s counsel during the course of the trial are reviewed under an abuse of discretion standard. See United States v. DeRosa,
III.
Issues on Appeal
A. Application of The Unclean Hands Doctrine
The first of the two issues raised by the Center on its appeal challenges the limited injunctive relief awarded by the district court. The district court ruled that the Center was precluded from obtaining injunctive relief on any charge other than trespass because of the unclean hands doctrine. Although the district court enjoined Defendants from trespassing on the Center’s property or the private parking lot next to the Center, and barred Defendants from obstructing the entrances to those premises, it gave no injunctive relief with respect to the acts of harassment and intimidation of the Center’s employees and patients which provided the evidentiary basis for the jury’s liability verdicts on the RICO and interference with contract claims.
In its discussion of the need for injunc-tive relief, the district court stated, “The spirited nature of [Defendants’] views permits no remorse or regret for their actions. No evidence produced at trial suggests that their unlawful modes of protest will cease. In fact, the evidence suggests precisely the opposite.”
The district court held that the Center was charged with knowledge of the doctor’s failure to comply with the Act’s requirements, and that therefore the Center
In the course of making this ruling, the district court felt compelled to consider and rule upon the constitutionality of section 3214(c), although the constitutionality of the Pennsylvania statute was not an issue in this case and was then pending before another judge of the same court. Consequently, on appeal here the parties have devoted extensive briefing to this issue, the Attorney General has submitted a brief seeking to uphold the court’s ruling on this issue, and the Center and some amici argue that this section is not operative. See note 12 infra. The parties’ preoccupation with the constitutionality of section 3214(c) represents a diversion to collateral issues.
Ordinarily, an abuse of discretion standard applies to our review of the district court’s application of the unclean hands doctrine. However, the parameters of the unclean hands doctrine implicate a matter of law.
As this court has explained, the equitable doctrine of unclean hands is not “a matter of ‘defense’ to the defendant.” Gaudiosi v. Mellon,
The same principle applies under Pennsylvania law. See In Re Estate of Pedrick,
Even if there had been a violation of the requirement of section 3214(c) relating to examination of fetal tissue by one of the physicians practicing at the Center, an issue we do not reach,
A recent Pennsylvania Supreme Court decision is illustrative of that Court’s application of the unclean hands doctrine. In In re Estate of Pedrick,
Defendants argue that further injunctive relief cannot be awarded under RICO because injunctive relief is not available to private parties under that statute’s civil provisions. This is a question of first impression for this court and remains an open question in most other courts. See Trane Co. v. O’Connor Sec.,
We see no impediment to basing injunctive relief on the interference with contractual relations verdict. The Center pleaded and proved that Defendants embarked on a willful campaign to use fear, harassment, intimidation and force against the Center through targeting its employees so that they would, and some did, sever their employment at the Center. Employees testified that they were even harassed at their homes and that their children were afraid. Defendants stress that the jury found no damages on its interference with contractual relations verdict. Of course, the fact the Center could not show damage on this claim or that not all the Center’s employees have been sufficiently frightened so as to terminate their contractual relations with the Center does not preclude injunctive relief designed to prevent future harm.
Defendants argue that the district court is limited in granting injunctive relief under the interference with contractual relations claim to enjoining the three Defendants found liable under that charge. However, injunctions under Pennsylvania law are commonly entered against defendants and “all persons acting in concert with them.” See, e.g., Adler, Barish, Daniels, Levin & Creskoff v. Epstein,
Fed.R.Civ.P. 65(d) expressly provides an injunction will be binding on persons “in active concert or participation” with the
The Center argues that because this is now the second time that the district court failed to grant it effective injunctive relief, we should ourselves either enter its proposed injunction or at least we should direct the district court to do so in clear and unambiguous terms. While such a course might be expeditious, we decline to fix the terms of the injunction.
Since we have found unsupportable as a matter of law the only basis on which the district court declined to issue a more extensive injunction, we must remand this matter so that it can reconsider the Center’s arguments that the injunction entered is inadequate.
B. Punitive Damages
The second issue raised by the Center challenges the district court’s order granting Defendants’ motion for a j.n.o.v. setting aside the jury’s award of $2,000 punitive damages against each of twenty-four Defendants found liable for trespass. The district court explained that it entered the j.n.o.v. because it had erred in submitting the issue of punitive damages in its charge to the jury. In this context, our standard of review is abuse of discretion. See United States v. Fischbach and Moore, Inc.,
The district court gave a number of reasons for setting aside the punitive damages. It referred to the Center’s failure to mention punitive damages in its pretrial memorandum as it was required to do under a local rule; the Center’s failure to object to the court’s pretrial order specifying the damage elements in the case, which did not include punitive damages; the Center’s untimely request for a charge on punitive damages; and the court’s preclusion of Defendants’ evidence on motive in response to the Center’s motion in limine. The latter ground alone is sufficient basis to uphold the court's order.
It is clear that under Pennsylvania law motive would have been relevant to the issue of punitive damages. See Chambers v. Montgomery,
IV.
Conclusion
In summary, we have concluded on the cross-appeal that civil RICO could appropriately be applied to Defendants’ intimidation and harassment of the Center resulting in the destruction of its property, that the district court did not err in rejecting the justification defense proffered by Defendants and in precluding evidence of Defendants’ motives unless they showed the specific relevance of such evidence, and that there is no basis in the district court’s conduct or rulings to order a new trial. On the Center’s appeal, we have upheld the district court’s order setting aside the punitive damages. Finally, we have held that the court erred in applying the unclean hands doctrine on a collateral matter to preclude injunctive relief.
For the reasons expressed herein, we will remand for further consideration of the injunctive relief to be granted in light of our opinion. We will affirm the district court’s judgment in all other respects.
Notes
. We conclude that the district court committed no error of law or abuse of discretion with respect to all other issues raised by defendants. Those issues are directed in the main to the court’s denial of a stay until state criminal charges then pending against defendants were resolved; its rulings on the relevance of certain videotape and witness testimony; and its rejection of defendants’ argument that it was collaterally estopped from issuing injunctive relief. See abo note 4 infra.
. There were 42 individuals sued. Plaintiff ultimately dismissed its claims against 11 defendants either before or during trial. The court gave a directed verdict to four defendants, and dismissed one post-trial.
. A fundraising letter signed by McMonagle, which was admitted into evidence, stated:
Our organization is encouraging and organizing increasingly effective protests at these abortion chambers.... In March, 1985 we received the welcome news that the Northeast Women’s Center abortion chamber ... would not have its lease renewed.... [TJhis abortion chamber lost its lease because of the persistent prayers and protests of Pro Life citizens.
App. at 480-82.
. Defendants challenge the measure of trespass damages, asserting that the Center cannot recover for its increased security costs. The Center, with appropriate citation to the record, notes that there was no objection to the district court's charge on this point. Defendants do not counter with any reference to the record showing that they properly preserved the issue. Accordingly, it is waived.
. The district court charged the jury that in order to prove an enterprise existed "[a]ll the plaintiff has to prove is the existence of an ongoing organization, either formal or informal in nature in which the various associates functioned as a continuing unit. The enterprise must have an existence separate and apart from the pattern of activity in which it engages." App. at 1006. Defendants did not object to this portion of the charge.
. There was ample evidence that the Center, a profit-making institution, advertised in interstate commerce and drew patients from other states, thereby satisfying the RICO interstate commerce requirement.
. The Center argues that the evidence contradicts Defendants’ claim that their activity was completely devoid of economic purpose, pointing to McMonagle’s testimony that he raised $120,000 a year for the Pro-Life Coalition of Southeastern Pennsylvania which coordinated the protests at the Center and that he received a salary of $32,000 a year as the director of this organization. App. at 880-81. Because we conclude that economic motivation is unnecessary, we do not decide whether this evidence would be sufficient to show economic motivation.
. We reject Defendants' argument that the district court improperly allowed extortion of employees to be asserted as predicate offenses. The evidence establishes that the harassment of Defendants’ employees and patients was directly related to Defendants’ goal to shut down the Center.
. Section 503 of the Crimes Code provides: § 503. Justification generally.
(a) General rule. — Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3)a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(b) Choice of evils. — -When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
. The district court’s order was, in relevant part, as follows:
The plaintiffs motion to preclude the introduction of evidence concerning justification and motive is GRANTED. Defense counsel may, in the opening statement to the jury, explain the circumstances surrounding the defendants’ presence in the plaintiffs property. Counsel may not extract testimony or introduce evidence of the defendants’ beliefs on abortion absent a prior demonstration of the relevance of the proposed evidence. Counselmay not argue or imply to the jury, in either an opening statement or closing argument, that the defendant's beliefs afford them any type of legal justification defense.
App. at 124.
. 18 Pa.Cons.Stat.Ann. § 3214(c) provides:
When there is an abortion performed after the first trimester of pregnancy where the physician has certified the unborn child is not viable, the dead unborn child and all tissue removed at the time of the abortion shall be submitted for tissue analysis to a board eligible or certified pathologist. If the report reveals evidence of viability or live birth, the pathologist shall report such findings to the department within 15 days and a copy of the report shall also be sent to the physician performing the abortion. Intentional, knowing, reckless or negligent failure of the physician to submit such an unborn child or such tissue remains to such a pathologist for such a purpose, or intentional, knowing or reckless failure of the pathologist to report any evidence of live birth or viability to the department in the manner and within the time prescribed is a misdemeanor of the third degree.
. Because, as we hold in the text, the district court should not have reached that issue, we venture no opinion on the district court’s conclusions that the Center failed to comply with section 3214(c) and that section 3214(c) is constitutional and enforceable under the statute in its present form.
. In American College of Obstetricians and Gynecologists v. Thornburgh,
. Although Defendants argue that injunctive relief cannot be ordered when there has been no award of damages, we note that in Adler Barish only injunctive relief but not damages were awarded. See
. The proposed injunction would have imposed time, place and manner restrictions, including limitation of the number of demonstrators, the use of sound amplification during surgical procedures at the Center, and the harassment of staff and patients. We note that since the district court’s opinion, the Supreme Court has shed additional light on the issue of residential picketing in its opinion in Frisby v. Schultz, — U.S. -,