SAN FRANCISCO (AP) [Jan 16 9:30:04 1998] A federal appeals court has refused to dismiss a lawsuit filed by three Oregon women against police, prosecutors and a school superintendent for having them arrested and charged with forcing an 18-year-old woman to get an abortion.
Upholding a lower court ruling, the 9th U.S. Circuit Court of Appeals on Thursday kept the suit alive by refusing to grant the local officials immunity.
The court said the rights claimed by the three plaintiffs were clearly established at the time of the dispute, and they may be able to prove that the officials were acting outside normal law enforcement duties.
The abortion-related charges were dropped for lack of evidence. The three woman a teacher's aide, a school secretary and the mother of the young woman's boyfriend sued for false arrest and malicious prosecution, saying they were persecuted for exercising free speech and aiding in a legal abortion.
The lawsuit was filed by Dorothy Carr, a teacher's aide at Amity Elementary School; Colleen Fettig, a secretary at Amity High School; and Cynthia Frye of Hillsboro.
Late in 1993, Lea T. Huber, then an 18-year-old senior at Amity High, became pregnant by 16-year-old Christopher Ahearn, who is Frye's son and Carr's grandson. In 1994, Huber got an abortion at a Portland clinic. Under Oregon law, 18 is the age of consent to obtain an abortion.
Her parents learned of the abortion weeks later, when Huber needed emergency treatment for severe bleeding, and complained to school officials.
George Lanning, the school superintendent, notified police.
Prosecutors charged Carr with kidnapping for allegedly taking Huber to get the abortion against her will. Fettig was charged with conspiring with Carr by falsifying her attendance record for that day of school, and Frye was charged with advising her son to lie to a grand jury.
The charges were dismissed in October 1995 because prosecutors lacked evidence that Huber had been forced to undergo the abortion. Carr and Fettig were fired from their jobs, and Fettig lost custody of a foster child.
U.S. District Judge James Redden ruled that the three women could sue Lanning, Deputy District Attorney Jennifer Jordan, Amity Police Chief Jim France, State Police Detective Alan Corson and other officials and government agencies for allegedly violating their rights. The appeals court agreed in a 3-0 ruling.
In concluding that the rights in question were clearly established, the court said it was legal in 1994 to help an adult woman obtain an abortion and to counsel her on the subject. "It was clearly established long before 1994 that neither Carr nor Fertig could be criminally indicted or discharged for exercising their First Amendment rights," the court said.
The court also said the motives of the police chief and school superintendent needed to be resolved in a trial before a determination of whether they acted reasonably and were entitled to immunity. They were not immune if they were trying to retaliate against the women for exercising their rights, the court said.
Other factual issues need to be resolved before determining whether the prosecutor was involved in routine police investigative activity before seeking an indictment, and whether Detective Corson improperly influenced the prosecutor's decision to seek an indictment, the court said.
The case is Fettig vs. Amity Public School District, 96-36164.
Copyright 1998, The Bakersfield Californian
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[posted March 17, 1998]
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