MEMORANDUM
An Order filed January 20, 1990 denied defendants’ motion to dismiss, granted plaintiffs’ motion for summary judgment, and entered a permanent injunction enjoining defendants from, inter alia, “trespassing on, blockading, impeding or obstructing access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia.” See Permanent Injunction at 2-3. The injunction was based on reasons to be amplified in a forthcoming Memorandum. This is that Memorandum.
I.
Plaintiffs include four health care facilities that provide abortion services, an organization that operates two such facilities, and five organizations that seek to establish and preserve a woman’s right to choose an abortion. Defendants are four organizations and six individuals who are opposed to abortion and its legalization. On October 27, 1989, plaintiffs filed a complaint and an application for injunctive relief, seeking to enjoin planned blockades of plaintiff clinics. A hearing on plaintiffs’ application was held on November 7 and 8, 1989, and a preliminary injunction was issued on November 8, 1989. See NOW v. Operation Rescue,
The preliminary injunction was limited to certain named clinics in the District of Columbia. Accordingly, on November 8, 1989, plaintiffs filed complaints in federal court in Maryland and Virginia seeking similar injunctive relief in those jurisdictions. See Plaintiffs’ Cross-Motion for Summary Judgment at Exhibits A, B, C. The Maryland court entered a preliminary injunction on November 8, after receiving affidavits identical to those introduced at the hearing before this Court. See id. at Exhibit D. In Virginia, a Temporary Restraining Order was entered on November 9, and later extended on November 16. See NOW v. Operation Rescue,
In this action, defendants have moved to dismiss plaintiffs’ complaint for lack of standing and failure to state a claim. Plaintiffs in turn have moved for summary judgment, arguing that the Virginia court’s determination is res judicata and that no material facts remain in dispute. In opposing plaintiffs’ summary judgment motion, defendants have argued that the Virginia court’s ruling is not entitled to preclusive effect and that defendants’ actions are protected by their constitutional right of association and the common law doctrine of justification.
II.
Defendants’ motion to dismiss raises two jurisdictional issues: (A) whether plaintiffs have standing to assert their claims and (B) whether jurisdiction over plaintiffs’ local law claims is appropriate.
A.
Defendants first argue that plaintiff clinics lack standing to assert the rights of their patients. This argument apрlies only to the federal claims, as plaintiff clinics’ local law claims are based on their own rights. To establish standing to assert the rights of third parties, plaintiff clinics must overcome both constitutional and prudential barriers. First, the clinics must allege a sufficiently concrete "injury in fact” to create a case or controversy under Article III. See Singleton v. Wulff,
B.
Defendants also object to the exercise of pendant jurisdiction over plaintiffs’ local law claims. Plaintiffs’ local law claims are cognizable in federal court, however, because plaintiffs’ federal claims are “not insubstantial” and the federal and state claims would “ordinarily be tried in one judicial proceeding.” See NOW v. Operation Rescue,
III.
Plaintiffs’ complaint sets forth five claims: (1) conspiracy to interfere with the right to travel; (2) conspiracy to interfere with the right to privacy; (3) trespass; (4) public nuisance; and (5) tortious interference with business relationships. Based on the prior proceedings in the Virginia litigation and the preclusive effect of that judgment, plaintiffs are entitled to summary judgment on the federal right to travel claim and the local law claims of trespass and public nuisance.
A.
The following findings of fact made by the Virginia court are relevant to this proceeding:
14. It is indisputable that all defendants share a deep commitment to the goals of stopping the practice of abortion and reversing its legalization. To achieve these goals, it appears from the record that the individual defendants have agreed and combined with one another and with defendant Operation Rescue to organize, coordinate and participate in “rescue” demonstrations at abortion clinics in various parts of the country, including the Washington Metropolitan area. The purpose of these “rescue” demonstrations is to disrupt operations at the target clinic and indeed ultimately to cause the clinic to cease operations entirely. No one has put this point any better than defendant Terry, who in an*764 affidavit, states that “while the child-killing facility is blockaded, no one is permitted to enter past the rescuers_ Doctors, nurses, patients, staff, abortion-bound women, families of abortion-bound women — all are prevented from entering the abortuary while the rescue is in progress.” Operation Rescue’s literature defines “rescues” as “physically blockading abortion mills with [human] bodies, to intervene between abortionists and the innocent victims.” Operation Rescue, National Day of Rescue — October 29, 1988 (1988) (emphasis in original). By disrupting and blockading family planning and abortion clinics, defendants and their followers hope (i) to prevеnt abortions, (ii) to dissuade women from seeking a clinic’s abortion services and (iii) to impress upon members of society the moral righteousness and intensity of their anti-abortion views.
15. The individual defendants, acting through and in concert with Operation Rescue, have organized “rescue” events under the names D.C. Project, Project Rescue and Veterans’ Campaign for Life. These “rescue” events focused on abortion clinics in the Washington Metropolitan area and the record is replete with references confirming the individual “defendants” involvement in these events. For example, defendant Gannett is the Executive Director of Project Rescue and defendants Mahoney, McMonagle and Michael Bray have assisted Operation Rescue in the organization and coоrdination of the District of Columbia Project and Project Rescue. Defendant Terry agreed to address an October 6, 1989 Project Rescue rally organized by defendant Gannett.
16. Because “rescuers” trespass on to clinic property and physically block ingress and egress from the clinic, existing and prospective patients, as well as physicians and medical staff are unable to enter the clinic to render or receive medical or counselling services. This creates a substantial risk that existing or prospective patients may suffer physical or mental harm. Trial witnesses, in un-contradicted testimony, convincingly illustrated this point. For example, for some women who elect to undergo an abortion, clinic medical personnel prescribe and insert a pre-abortion laminaria to achieve cervical dilation. In these instances, timely removal of the laminaria is necessary to avoid infection, bleeding and other potentially serious complications. If a “rescue” demonstration closes a clinic, patients requiring the lami-naria removal procedure or other vital medical services must either postpone the required treatment and assume the attendant risks or seek the services elsewhere. Uncontradicted trial testimony established that there were numerous economic and psychological barriers to obtaining these services elsewhere. Hence, a “rescue” demonstration creates a substantial risk that a clinic’s patients may suffer physical and mental harm.
17. Uncontradicted trial testimony by Dickinson-Collins, a trained mental health professional, established that blockading clinics and preventing patient access could cause stress, anxiety and mental harm (i) to women with abortions scheduled for that time, (ii) to women with abortion procedures (i.e., laminaria insertion) already underway and (iii) to women seeking counselling concerning the abortion decision.
18. Substantial numbers of women seeking the services of clinics in the Washington Metropolitan area travel interstate to reach the clinics. For example, approximately twenty (20) to thirty (30) percent of patients served at the Commonwealth Women’s Clinic in Falls Church, Virginia come from out of state. Records for these patients reflect permanent residence addresses in Maryland, the District of Columbia, Pennsylvania, Texas, West Virginia, New Jersey, New York, and Florida. And at the Hillview Women’s center in Forestville, Maryland, a majority of the patients travel from out of state to obtain abortion services at the clinic. “Rescue” demonstrations, by blocking access to clinics, therefore have the effect of obstructing and interfering with the interstate travel of these women.
*765 19. Defendants’ use of “rescue” demonstrations as an anti-abortion protest is not a recent phenomenon. For example, on almost a weekly basis for the last five (5) years, Commonwealth Women’s Clinic has been the target of “rescue” demonstrations by Operation Rescue. One of the largest of these occurred on October 29, 1988. That “rescue” succeeded in closing the Clinic from 7:00 a.m. to 1:30 p.m., notwithstanding the efforts of the Falls Church Police Department. “Rescuers” did more than trespass on to the clinic’s property and physically block all entrances and exits. They also defaced clinic signs, damaged fences and blocked ingress into and egress from the Clinic’s parking lot by parking a car in the center of the parking lot entrance and deflating its tires. On this and other occasions, “rescuers” have strewn nails on the parking lots and public street abutting the clinics to prevent the passage of any cars. Less than a year later, in April 1989, a similar “rescue” demonstration closed the Metropolitan Family Planning Institute in the District of Columbia for approximately four (4) hours.
20. More recently, defendants organized and planned a series of meetings, rallies and “rescues” in the Washington Metropolitan arеa for the weekends of November 10-12 and 18-20, 1989. These events were the impetus for plaintiffs’ filing of this action. Although no Virginia clinics were “rescue” targets, several clinics elsewhere in the Washington Metropolitan area were subjected to “rescue” demonstrations. Clinics in Maryland and the District of Columbia were closed as a result of “rescues” on November 10, 11 and 12, 1989. The following weekend, on November 18, 1989, the Hillcrest Women’s Surgi-Center in the District of Columbia was closed for eleven (11) hours as a result of a “rescue” demonstration. Five (5) women who had earlier commenced the abortion process at the clinic by having laminaria inserted were prevented by “rescues” from entering the clinic to undergo timely laminaria removal.
21.Defendants!’] use of “rescue” demonstrations as an anti-abоrtion protest is also widespread geographically. “Rescues” have taken place in many places across the country and have been enjoined in New York, Pennsylvania, Washington, Connecticut, and California, as well as the Washington Metropolitan area. Recent “rescue” demonstrations in the District of Columbia and Maryland were carried out in violation of federal injunctions.
Virginia Findings,
Based on these findings, the Virginia court determined that defendants’ actions violated 42 U.S.C. § 1985(3), as well as the Virginia law against trespass and the common law prohibition of public nuisance. As to the § 1985(3) conspiracy claim, the court found that defendants had engaged in a “conspiracy for the purpose, either directly or indirectly, of depriving women seeking abortion and related medical аnd counsel-ling services, of the right to travel.” Virginia Findings,
B.
The Virginia court’s determinations of fact and law are entitled to preclusive effect in this proceeding. The general principle of preclusion — that parties may not re-litigate issues of fact and law that have been conclusively determined by a court of competent jurisdiction — is well settled. The rule, alternatively called issue preclusion or collateral estoppel, advances both public and private interests: “protection of litigants from the burden of unnecessary litigation, promotion of respect for the judicial process and confidence in the conclusiveness of judicial decision-making, avoidance of disconcertingly inconsistent results, and securing the peace and repose of society.” Clark-Cowlitz Joint Operating Agency v. FERC,
The specific requirements of the rule have been concisely summarized as follows:
[Issue preclusion] comes into play when an issue involved in a prior decision is the same issue involved in a subsequent action; the issue is actually decided in the first action after a full and fair opportunity for litigation; it was necessary to decide the issue in disposing of the first action; the later litigation is between the same parties and the role of the issue in the second action was foreseeable in the first action.
Butler v. Pollard,
Based on these factors, defendants are precluded from relitigating the Virginia court’s determination that defendants conspired to interfere with plaintiffs’ constitutional rights in violation of 42 U.S.C. § 1985(3). Defendants are also precluded from relitigating the factual issues determined by the Virginia court relating to defendants’ violations of local law.
1. The first requirement for issue preclusion is that the issues presented in the two actions be the same. In this case, plaintiffs’ right to travel claim under § 1985(3) is identical to the right to travel clаim in the Virginia litigation. See, e.g., Affidavit of Wayne C. Codding in Support of Application for a Preliminary Injunction at U 9 (Capitol Women’s Center in D.C. has 20% of its patients from Virginia, 15% from Maryland). Moreover, the law applied by the Virginia court is identical to the law that would be applied in this district. The only unsettled question of law relating to plaintiffs’ § 1985(3) claim is whether defendants’ actions directed against women satisfy the requirement of a “class-based discriminatory animus.” The Virginia court held that women are a protected class under § 1985(3), and that, as a subset of that class, women seeking abortions are protected by § 1985(3). Although this circuit has not yet addressed the question, a majority of courts have held that sex-based animus is sufficient to make out a § 1985(3) violation. See, e.g., New York State NOW v. Terry,
Distinctions based upon immutable characteristics such as sex have long been considered invidiously discriminatory. By its very language § 1985(3) is necessarily tied to evolving notions of equality and citizenship. As conspiracies directed against women are inherently invidious, and repugnant to the notion of equality of rights for all citizens, they are therefore encompassed by the Act.... It is ... untenable to believe that Congress would provide a statutory remedy against private conspiracies, the purpose of which is to deny rights common to every citizen, and exclude women as a class from the shelter of its protection.
New York State NOW,
Plaintiffs’ claims under District of Columbia law are also substantially identical to the prior issues presented by plaintiffs’ claims under Virginia law. First, the Virginia and District of Columbia trespass statutes prohibit identical conduct under identical standards. Compare Va.Code Ann. § 18.2-119 (1989) (“If any person without authority of law goes upon or remains upon the lands, buildings or premises of another ... after having been forbidden to do so ... by the owner, lessee, custodian or other person lawfully in charge thereof, ... he shall be guilty of a Class 1 misdemeanor”) with D.C.Code Ann. § 22-3102 (1989) (“Any person who, without lawful authority, shall enter ... any public or private dwelling, building or other property ... against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereоn shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor”). The facts determined by the Virginia court establish that defendants’ action in this District have violated the District of Columbia’s law against trespass. See Virginia Findings,
In addition, the facts determined by the Virginia court establish that defendants’ actions constitute a public nuisance under District of Columbia law. The standards for public nuisance in Virginia and the District of Columbia are substantially similar. Compare Virginia Findings,
2. The second requirement for issue preclusion is that the issue must have been actually decided after the parties have been given a full and fair opportunity to litigate them. There can be no dispute that the Virginia court actually decided the three alternative holdings. However, defendants argue that, because the trial was accelerated pursuant to Rule 65(a)(2), they were denied a full and fair opportunity to litigate. This argument is without merit. For one, although defendants assert that the Virginia court accelerated the trial sua sponte, the opinion states that the trial was accelerated with the parties’ consent. See id. at 1486. Dеfendants hypothesize that the Virginia court “may have been deprived of testimony rebutting Plaintiffs’ evidence,” because defendants did not have sufficient time to conduct discovery or to consult with their clients. See Plaintiff’s Opposition at 6. However, defendants neither objected to the accelerated trial nor requested any continuance to prepare rebuttal evidence. In consenting to the accelerated trial, defendants presumably knew, or should have known, of its potentially preclusive effect, as this litigation was already pending. Moreover, a Rule 65(a)(2) accelerated trial is a routine procedure designed to preserve judicial resources and save the parties from wasteful duplication of effort. Denying preclusive effect to a valid and final judgment made after a Rule 65(a)(2) trial would contravene the policies underlying both Rule 65(a)(2) and the doctrine of issue preclusion.
3. The third requirement for issue preclusion is that the prior determination must have been necessary to support the judgment. The Virginia court’s judgment rested on three independent and alternative grounds. Courts and commentators are divided over the question of what preclusive effect attaches to an alternative holding, and the issue has yet to be resolved in this circuit. See Dozier v. Ford Motor Co.,
4. The fourth requirement for issue preclusion—that the parties be substantially the same—is easily satisfied. With the exception of five Virginia clinics added to the complaint in the Virginia proceeding, the parties in this proceeding and in the Virginia proceeding are identical.
5. As to the fifth requirement— foreseeability—defendants have posited no reason why the preclusive effect of the Virginia litigation was not foreseeable to defеndants or their counsel: this litigation was already pending; the parties were the same; the complaints in the two actions were nearly identical; and defendants were represented by the same counsel. In fact, plaintiffs instituted the Virginia action after this Court refused to take cognizance of plaintiffs’ claims relating to defendant’s threatened activity in the Maryland and Virginia suburbs of Washington.
6. The final requirement for issue preclusion is that there be no reason “to doubt the quality, extensiveness, or fairness of procedures followed in prior
Defendants present one further argument in opposition to plaintiffs’ assertion of issue preclusion: defendants claim that, if issue preclusion applies, plaintiffs are bound by a prior determination by a federal court in the Central District of California. See National Abortion Federation v. Operation Rescue,
IV.
Defendants raise two final arguments in opposition to plaintiffs’ motion for summary judgment. Defendants claim that their actions in blockading plaintiff clinics are protected by their constitutional right of association and the common law doctrine of justification. Both arguments are merit-less.
A.
Defendants correctly assert that the first amendment right of association protects “peaceable assembly for lawful discussion.” See DeJonge v. Oregon,
B.
Finally, defendants claim that the common law doctrine of justification excuses their conduct. Defendants argue that they reasonably believe that “abortion kills human beings” and that, in preventing women from obtaining abortions, defendants were therefore acting to prevent a greater harm. See Defendants’ Opposition at 34. The flaw in defendants’ argument is that the “harm” they were seeking to prevent is a constitutionally protected activity. A legal abortion does not create а cognizable injury, and, in the absence of injury,
V.
Plaintiffs are entitled to summary judgment as a matter of law because no material factual disputes remain. Based on рrinciples of issue preclusion, the findings and conclusions of the Virginia court establish that defendants have conspired in violation of 42 U.S.C. § 1985(3) to interfere with plaintiffs’ constitutionally protected right to travel. The Virginia court’s findings also establish that defendants have engaged in conduct in this district that violates the District of Columbia law against trespass and the common law prohibition of public nuisance. Finally, defendants’ actions are neither protected by the first amendment nor excused by the common law defense of justification.
As plaintiffs have succeeded on the merits of their claim, they are entitled to in-junctive relief if they have no adequate remedy at law and if they are favored by the balance of equities. See Virginia Findings,
Accordingly, an accompanying order will vacate the order entered January 20, 1990 and issue a revised order designed to enjoin defendants from further interference with plaintiffs’ rights as defined herein. In addition, for reasons stated in a separate Memorandum issued this date in relation to contempt proceedings in this matter, the revised injunction will enjoin Joseph Foreman and Susan Odom, will prohibit defendants from “aiding or abetting” others to violate the injunction, and to facilitаte obedience to this permanent injunction, will establish sanctions for future violations of the injunction by particular organizations and individuals.
REVISED PERMANENT INJUNCTION
For the reasons stated in the accompanying Memorandum, the Court has found that defendants, and those acting in concert with them, have violated 42 U.S.C. § 1985(3), as well as District of Columbia laws relating to trespass and public nuisance, that such violations are likely to
ORDERED: that the Permanent Injunction filed January 26, 1990 is VACATED; and it is further
ORDERED: that plaintiffs’ Cross-Motion for Summary Judgment is GRANTED; and it is further
ORDERED: that defendants’ Motion to Dismiss is DENIED; and it is further
ORDERED: that final judgеment be entered in favor of plaintiffs and against defendant; and it is further
ORDERED, ADJUDGED, and DECREED: that Operation Rescue, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, Michael Bray, Michael McMo-nagle, Joseph Foreman, Susan Odom, and persons acting in concert with them are enjoined and restrained from in any manner, or by any means, trespassing on, blockading, impeding or obstructing access to or egress from the following premises: Capital Women’s Center, 1339 22nd Street, N.W., Washington, D.C.; Hillcrest Women’s Surgi-Center, 7603 Georgia Avenue, N.W., Washington, D.C.; Planned Parenthood Clinic, 1701 Q Street, N.W., Washington, D.C.; New Summit Medical Center, 2112 F Street, N.W., Washington, D.C.; Washington Surgi-Clinic, 1018 22nd Street, N.W., Washington, D.C.; Washington Hospital Center, 110 Irving Street, N.W., Washington, D.C.; Hillcrest Women’s Sur-gi-Center, 3233 Pennsylvania Avenue, S.E., Washington, D.C.; Planned Parenthood of Metropolitan Washington, D.C., Inc., 1108 16th Street, N.W., Washington, D.C.; Planned Parenthood of Metropolitan Washington, D.C., Inc., 2811 Pennsylvania Avenue, S.E., Washington, D.C.; and it is further
ORDERED, ADJUDGED, and DECREED: that Operation Rescue, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, Michael Bray, Michael McMo-nagle, Joseph Foreman, Susan Odom and persons acting in concert with them are enjoined and restrained from in any manner, or by any means, trespassing on, blockading, impeding or obstructing access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia; and it is further
ORDERED: that Operation Rescue, Randall Terry, Patrick Mahoney, Clifford Gannett, Jayne Bray, Michael Bray, Michael McMonagle, Joseph Foreman, Susan Odom and persons acting in concert with them are enjoined and restrained from inducing, encouraging, direсting, aiding, or abetting others in any manner, or by any means, to trespass on, to blockade, or to impede or obstruct access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia; and it is further
ORDERED: that a $50,000 contempt sanction will be imposed upon Operation Rescue in the event that it violates this injunction, such fine to be paid to the medical facility or facilities that are or become the target of the violation; and it is further
ORDERED: that a $5,000 contempt sanction will be imposed upon Clifford Gan-nett, Joseph Foreman, Susan Odom, or Michael McMonagle on the next occasion that such individual violates the injunction, such fine to be paid to the medical facility or facilities that are or become the target of the violation and the sanction to be imposed for each succeeding violation by any one of the foregoing named individuals will be double the sanction imposed on account of its predecessor violation; and it is further
ORDERED: that that a $2,500 contempt sanction will be imposed upon Patrick Ma-honey on the next occasion that he violates this injunction, such fine to be paid to the medical facility or facilities that were the target of the violation and the sanction to be imposed for each succeeding violation by Patrick Mahoney will be tripled on account of its predecessor violation; and it is further
ORDERED: that the United States Marshal for the District of Columbia shall serve this injunction or cause it to be served on each of the named defendants; and it is further
ORDERED: that plaintiffs may post this Order at their premises and cause it to be published at their expense.
Notes
. The Virginia court addressed, but did not decide, the federal claim based on conspiracy to interfere with patients’ privacy rights and the local law claim based on tortious interference with business relationships. The court stated that it avoided the federal privacy claim because the law "is in a state of flux” and "there is another independent basis for relief under Section 1985(3).” Virginia Findings,
. The Virginia court's ruling applied to defendants Operation Rescue, Randall Terry, Patrick Mahoney, Clifford Gannett, Michael McMona-gle, Michael Bray, and Jayne Bray. The Virginia court dismissed as defendants Project Rescue, D.C. Project, and Veterans’ Campaign for Life because the evidence showed that "none is a legal entity capable of bеing sued; rather they are names of events organized and coordinated by Operation Rescue for the purpose of conducting ‘rescues’ at abortion facilities in the Washington Metropolitan Area.” Virginia Findings,