Last Updated: 22 Jan 1998

Brief filed on behalf of Joan Andrews Bell

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IN THE COURT OF COMMON PLEAS
OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

vs.

JOAN ANDREWS

Defendant.

 :
:
:
:
:		 CRIMINAL DIVISION

CC No. 8505630

BRIEF ON BEHALF OF DEFENDANT JOAN ANDREWS BELL
IN SUPPORT OF MOTION TO WAIVE
FORMAL REQUIREMENTS OF PROBATION


Richard J. Traynor, Esq.
Michael P. Tierney, Esq.
80 Pine Street
New York, NY 10005

Table of Contents

TABLE OF CASES CITED



PROCEDURAL STATEMENT

        Defendant Joan Andrews Bell appears before the Court of Common Pleas of Allegheny County, Judge Raymond Novak presiding, on notice to appear to comply with the sentence imposed by the Court on October 18, 1988 following conviction for trespass at an abortion facility.  Appeal required in affirmance of conviction and sentence.  The sentence is three years supervised probation with conditions forbidding crimes including convictions for trespass at abortion facilities anywhere in the country.

STATEMENT OF FACTS

        By reason of conscience, defendant cannot accept probation or comply with the affirmative formalities of probation, including registration with the probation department, periodic or monthly reporting, and the like.  Defendant is a woman of strong religious and moral conviction, of the Roman Catholic faith, who accepts the scientific fact that human life begins at fertilization, and believes that life is sacred, is individually unique and individually created by God and may not be destroyed under any pretext of right of privacy or liberty interest. Defendent Affidavit, Exhibit A.   In this matter, her acceptance of scientific fact and religious teaching and her moral convictions led defendant to attempt to rescue babies targeted to die at abortion facilities.  Her action was prompted by Christian charity and biblical injunction and also was in reliance upon the time-honored legal principle of justification by reason of necessity, Id.  In the law of justification, the actor is excused from a lesser offense (trespass) to prevent a greater evil; namely the wanton and barbaric destruction of an innocent human victim by induced, painful abortion, 18 Pa. C.S.A., Section 503 and 510 of the Pennsylvania Crimes Code.

        Defendant relies upon three areas of authority to substantiate her convictions: (a) Affidavit by Bernard N. Nathanson, M.D.  Exhibit B1; irrefutable authority of the worldwide scientific community, with universal consensus, for the truth that human life begins at conception, Exhibit B2; (b) the teachings of the Roman Catholic Church respecting procured abortion, Exhibit C; and (c) our legal tradition which gives recognition to the dignity of the person and affords respect and protection for human life, Exhibit D.

        Defendant does not believe that the justice system can legitimately be used to enforce the abortion license created by Roe v. Wade, 410 U.S. 113 (1973), and its "progeny" and she will not give assent to attempts to compel compliance with court orders which are based upon illegitmate decisions.

        Joan Andrews Bell is not alone in concluding that the central holdings of Roe concerning the baby, i.e., that the baby is potential life and not actual life, that the baby is not a person entitled to constitutional protection and that there is no professional consensus respecting when life begins are wrong, defendant is not alone.  Roe and those abortion decisions following it were based not upon our legal tradition, but rather upon raw judicial power.[1]  

        Even our Supreme Court has recognized that opposition to abortion is a "common and respectable" point of view, Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270 (1993), and the Court has repeatedly held that public expressions of such opposition are entitled to First Amendment protection.  See Schenk v. Pro-Choice Network of Western New York, 117 S.Ct. 855 (1997); Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994); Frisbee v. Schultz, 487 U.S. 474 (1988).

        Accordingly, because she believes that the abortion license is without efficacy, defendant conscientiously objects to any attempted official confirmation of the practice of induced abortion [2], or the use of public agencies and courts to punish those who peacefully seek to rescue those targeted to die by induced abortion at abortuaries.  She cannot voluntarily perform affirmative acts, such as registering or reporting, or communicate any voluntary expression, written or oral, giving acceptance or agreement to probation or conditons of probation as part of her sentence for trespass, since such affirmative acts of expression would violate her cconscience and contravene her rights under the First and Fourteenth Amendment and the Pennsylvania Constitution.



ARGUMENT

COMPELLING DEFENDANT TO MAKE ANY VOLUNTARY
EXPRESSION, WRITTEN OR ORAL, GIVING
ACKNOWLEDGMENT OR AGREEMENT TO
PROBATION ARISING FROM HER TRESPASS
CONVICTION VIOLATES DEFENDANT'S FIRST AND
FORTEENTH AMENDMENT RIGHT OF FREE SPEECH.


        To require Mrs. Bell to affirmatively act or make declarations under the probation process would require her to act or to speak in betrayal of her sincerely held beliefs and principles.  The First Amendment forbids such compulsory speech.

        In West Virginia State Board of Educ. v. Barnette, 319 U.S. 624 (1943), the U.S.Supreme Court struck down a requirement that students salue the American flag.  In Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme Court struck down the requirement that all New Hampshire automobile license plates bear the state motto, "Live Free or Die."  The car owners objected to the message as "repugnant to their moral , religious, and political beliefs."  Id. at 707 (footnote omitted).  These cases and others firmly establish the principle that the constitutional right to free speech forbids compelling a person to speak that which he finds objectionable [3].


FREEDOM OF RELIGION AND FREEDOM OF
CONSCIENCE ARE GUARANTEED TO ALL PERSONS
UNDER THE CONSTITUTIONS OF THE UNITED STATES
AND THE COMMONWEALTH OF PENNSYLVANIA


Since the founding of our country, freedom of religion has been jealously guarded by our courts. Only in limited circumstances may a compelling state interest outweigh a defendant's interest in freedom of religion.  Sherbert v. Verner, 374 U.S. 398 (1963). Furthermore, Employment Division v. Smith, 494 U.S. 872 (1990)l does not require a contrary result.  As noted below, this is a "hybrid" case in which the compelling interest test of Sherbert and its progeny governs.  In Sherbert, the Supreme Court overturned South Carolina's attempt to deny unemployment compensation benefits because of religious based non-compliance with a state statue.  Justice Brennan, speaking for the Court, stated, at page 404:

        "Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure on her to forego that practice is unmistakable.  The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand and abandoning one of the precepts of her religion in order to accept work, on the other hand.  Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship."

        It is axiomatic that the free exercise of religion is not a mere privilege tolerated or granted by the state.  Rather, it is an affirmative right, prior in time and degree of obligation to all but the most compelling state interest.[4]

        Under the compelling state interest test, the religious adherent must show that she has sincerely-held beliefs, rooted in religion, that are burdened by the government's actions.  Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 713-14 (1981).  The government's imposition of a burden on the religious adherent's beliefs violates the Constitution, unless the state can show "that it is the least restrictive means of achieving some compelling state interest."  Thomas, 450 U.S. at 713-14.





PENNSYLVANIA LAW PROHIBITS THE COURT FROM
REQUIRING THE DEFENDANT TO VIOLATE HER
CONSCIENCE BY ASSENTING TO A FORMAL
CONDITION OF PROBATION


        "Pennsylvania, more than any soverignty in history, traces its origins directly to the principles that the fundamental right of conscience is inviolate."  Zummo v. Zummo, 574 A.2d 1134, 395 Pa. Super. 30 (1990).  The foundational law of the Commonwealth, the Pennsylvania Constitution, provides textual support for this observation.  The Consitution explicitly states in its opening sentence, the Preamble, that the people of Pennsylvania are "grateful to Almighty God for blessings of civil and religious liberty."  The paramount importance of the rights of freedom of religion and conscience is clearly seen in Article I of the Constitution, the Declaration of Rights, which "unalterably establishe[s]," in absolute terms, that (1) "[a]ll men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty" (Section 1); (2) "no human authority can, in any case whatever, control or interfere with the rights of conscience" (Section 3); and (3) the Commonwealth is prohibited from denying "to any person the enjoyment of any civil right" or discriminating against any person "in the exercise of any civil right" (Section 26) (emphases added).

      In Roe, supra, at 159, the United States Supreme Court's majority opinion explicitly sidestepped "the difficult question of when life begins."  Even assuming that an individual's freedom of conscience could be appreciably limited by Supreme Court edict, the expansive right to freedom of conscience secured by the Pennsylvania Constitution guarantees the defendant complete freedom under Roe and its progeny to decide -- as she has decided, in conformity with an informed conscience -- that (1) the question of when human life begins is suceptible of an answer; (2) the answer is that human life begins at conception; (3) accordingly, abortion is a crime against humanity; (4) she has the moral and legal right to defend human lives threatened by abortion; and (5) notwithstanding her arrest and convictions for actions taken to defend human lives threatened by abortion, she cannot agree to any limitation on her ability to exercise her rights in this regard.

        It is also a matter of historical fact that decisions of even the nation's highest court on matters affecting fundamental human rights subsequently have been found to be morally and socially reprehensible by nearly every citizen.  See, for example, Dred Scott v. Sandford, 60 U.S. 393 (1857) (slavery); Buck v. Bell, 274 U.S. 200 (1927) (compulsory sterilization of mental institution patients); Korematsu v. United States, 323 U.S. 214 (1944) (exclusion of Japanese-Americans from West Coast residences).  The defendant in the case at hand stands in the legal tradition of those who have opposed decisions such as these.  If anything, her position is stronger than theirs, for she has sought to prevent the taking of human life at tremendous cost to her own liberty.  The Pennsylvania Constitution unquestionably protects the right which the defendant asserts - to refuse compliance with a formal probation condition which directly interferes with her freedom to believe that she may not even implicitly accord human lives threatened by abortion any less dignity than she herself possesses.  "The civil law may, at times, give way to religious beliefs," Commonwealth v. Barnhart, 497 A.2d 616, 624, 345 Pa. Super. 10 (1985), and here the defendant's beliefs inform her essential solidarity with other human beings in grave peril.

        The provisions of Article I of the Pennsylvania Constitution, with their stress on the liberty of conscience, undergird an important statutory limitation placed on a court in imposing an order of probation.  Pursuant to 42 Pa.C.S. Section 9754(c)(13), the court may, as a condition of its order, require the defendant to satisfy any other conditions "reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience."  As an initial matter, this Court is aware that the threat of indefinite civil contempt for failure to formally comply with the probation condition which the Court seeks to impose cannot be "reasonably related" to the defendant's "rehabilitation," to be understood here as a waiver of her right in conscience to defend human lives threatened by abortion.  At its October 18, 1988 imposition of sentence, the Court itself recognized the injustice of incarcerating the defendant following her two and one-half year ordeal in the Florida prison system:

"While I certainly do not condone the activites of Joan Andrews, it is particularly distressing to me to see a sister state try to exact a pound of flesh, so to speak -- from everything that I have been able to learn about Joan Andrews and her Florida incarceration, I can only reach the conclusion that the authorities of Florida have attempted to break Joan Andrews both spiritually and mentally.  Someone who firmly believes in the even handed administration of justice, I find Joan Andrews treatment in Florida to have been extremely unfair.  I cannot conceive that justice would be served by any further incarceration of this woman in the Commonwealth of Pennsylvania. (Transcript, pp. 41-42).

Insofar as the defendant is unwilling, "as a matter of conscience," to execute even formal compliance with the proposed probation condition, it is submitted that the Court's insistence that the defendant now provide such compliance or face indefinite civil contempt constitutes another attempt to "exact a pound of flesh."

        With respect to the liberty/conscience prong of Section 9754(c)(13), it is hard to conceive of a harsher restriction of liberty, or a greater incompatibility with freedom of conscience, than indefinite incarceration for civil contempt.  The sole reason for incarceration under such circumstances is to presssssure the contemnor to obey a demand made by the court.  "Where the state conditions receipt of an important benefit, e.g., welfare of social security benefits, upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his belief, a burden on religion exists.  While the compulsion may be indirect, tthe infringement upon free exercise is nonetheless substantial."  Thomas, 450 U.S. 707 at 718; Calandra v. State College Area School District, 512 A.2d 809, 911, 99 Pa. Cmwlth. 223 (1986).

        For all of the above reasons, the law of Pennsylvania prohibits the court from requiring the defendant to violate her conscience by forcing her to assent to a formal condition of probation, i.e., that the defendant waive her right to defend human lives threatened by abortions at locations where abortion is performed.



DEFENDANT'S BELIEFS ARE SINCERE AND ROOTED IN RELIGION


        Mrs. Bell's beliefs at issue here are protected by the state and federal constitutions' Free Exercise Clauses because her beliefs are sincere and are "rooted in religion."  Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Thomas, 450 U.S. supra, at 713; Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989).  No one can dispute the sincerity of defendant's religious beliefs.  Affidavit of defendant, Exhibit A.



SEEKING FORMAL COMPLIANCE WITH PROBATION
SUBSTANTIALLY BURDENS DEFENDANT'S RELIGOUS BELIEFS

        The Commonwealth of Pennsylvania, through this Court, substantially burdens defendant's religious beliefs, because it asks her to choose between jail and violating her conscience.

        The Supreme Court has defined "burden" in a series of cases to be:

"forc[ing] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand."

Sherbert, supra, at 404, quoted in Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 140 (1987).  See also Frazee, 489 U.S. at 832. Similarly,

"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because the conduct is mandated by religious belief, thereby putting substantial pressure on the adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."

Thomas, 450 U.S., supra, ar 717-718.  Here, the burden on Mrs. Bell's religious beliefs is much greater than mere denial of state benefits or property rights; it implicates freedom itself.  This is a substantial burden.  This is a harsh choice.  The "choice" of jail for civil contempt burdens defendant's exercise of her religious beliefs because the government places "substantial pressure on an adherent to modify his behavior and to violate his beliefs."  Thomas, supra, at 718.  The Commonwealth "puts the same kind of burden upon the free exercise of religion as would a fine against her for ... [religious] worship."  Sherbert, supra. (emphasis added)

        Courts must always be sensitive to the impact of their decisions on First Amendment rights.  See New York v. P.J. Video, Inc., 475 U.S. 868 873-74 (1986); Walter v. United States, 447 U.S. 649, 655 & n.6 (1980).  For example, when making bail decisions, the court must avoid both the appearance and the reality of penaliizing or burdening First Amendment rights.  See Levy v. Parker, 396 U.S. 1204 (1969); United States ex rel. Means v. Solem, 440 F. Supp 544, 549-53 (D.S.D 1977); Petp v. Cook, 364 F.Supp. 1, 5 n.6 (S.D. Ohio 1973).

        Because the Commonwealth's actions substantially burden defendant's religious beliefs, the state must show that it has a compelling state interest, implemented by the least restrictive means.



COURTS NARROWLY CONSTRUE THE COMPELLING STATE INTEREST


        The Supreme Court has said that the compelling state interest must be construed narrowly.  Yoder, 406 U.S. at 221; Thomas, supra, at 719.

        For example, in Yoder, supra, the State of Wisconsin could not assert a generalized interest in making sure that children are educated to justify its efforts to force Amish children to attend school beyond the eighth grade.  The Supreme Court required Wisconsin to show a compelling state interest for the specific requirement in commanding children to attend school beyond the eighth grade.  Because the state could not show such a compelling interest, it could not force the Amish to violate their beliefs by submitting to that legal requirement.


COMPELLING FORMAL COMPLIANCE VIOLATES
DEFENDANT'S RIGHTS UNDER THE FEDERAL FREE
EXERCISE CLAUSE


        This case involves a "hybrid right" situation as described in Employment Division v. Smith, supra.  The governent cannot burden someone's hybrid rights without a compelling state interest implemented by the least restrictive means.  Id., at 881-82.  The Supreme Court stated that it will examine a burden by the compelling state interest test if the free exercise claim is combined with some other fundamental right, such as freedom of speech or parental rights.  Id.

        In this case, there are hybrid rights -- freedom of speech, implicated by the formal compliance requirement, and freedom of religion.

        In Wooley, supra, at 713, the Supreme Court said:

"We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.  We hold that the State may not do so." (emphasis added).

        The Supreme Court in Wooley compared the constitutionally repugnant act of forcing New Hampshire drivers to have "Live Free or Die" on their license plates to forcing Jehovah's Witnesses to say the Pledge of Allegiance in Barnette, supra. In Barnette, the Supreme Court said:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not occur to us."

Barnette, 319 U.S. at 642 (emphasis added).[5]



BECAUSE THERE IS NO LIKELIHOOD THAT DEFENDANT
WILL PURGE HERSELF OF CIVIL CONTEMPT BY REASON
OF BEING JAILED, THE COURT MAY NOT EMPLOY CIVIL
CONTEMPT


        As the Supreme Court stated in United States v. UMW, 330 U.S. 258, 304 (1947),

"where the purpose [of a civil contempt order] is to make the defendant comply, the court's discretion is otherwise exercised.  It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired."

In the case of Mrs. Bell, an order directing her to report to the probation office for processing under pain of civil contempt until she complies is demonstrably and objectively unlikely to result in compelling her compliance.  In effect, it is not only unlikely, but -- in Mrs. Bell's case -- literally impossible that a civil contempt sanction will cause her to comply.  Therefore, under the authority of the "impossibility" line of decisions,[6] this Court should exercise its power to annul formal compliance and thus avoid the violative due process implications of imposing civil contempt where the sanction will not compel compliance.  In re Grand Jury Proceedings (Howald), 977 F.2d 849, 850 (11th Cir. 1989) ("Civil contempt is a coercive device imposed to secure compliance with a court order and if the circumstances illustrate that sanction will not compel compliance, it becomes punishment and violates due process."); Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983) ("What is required of the judge is a conscientious effort to determine whether there remains a realistic possibility that continued confinement might cause the contemnor to testify...  If the judge is persuaded, after a conscientious consideration of the circumstances pertinent to the individual contemnor, that the contempt power has ceased to have a coercive effect, the civil contempt remedy should be ended."); In re Grand Jury Proceedings (Brawn), 600 F.2d 420, 424 (3d Cir. 1979) ("It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely even though he or she refuses to comply with the court's order.  Most commentators agree that in civil contempt proceedings involving an adamant contemnor, continued imprisonment may reach a point where it becomes more punitive than coercive, and thereby defeats the purpose of the commitment...  Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated").  This result is particularly appropriate where the defendant's refusal to comply is motivated by sincerely held, long-standing religious beliefs informed by the unaltered teaching of the Roman Catholic Church throughout its two thousand year history.  Cf. Gordon v. Idaho, 778 F.2d 1397, 1399 (9th Cir. 1985) ("The First Amendment's guarantee of the free exercise of religion requires that our procedural rules be interpreted flexibly to protect sincerely-held religious beliefs and practices").

        Because the defendant is known by name, has ties to her community, is married with children, lives with her husband and children at a known address in Bayonne, New Jersey and has lived in New Jersey for a total of nine years, surely there is no need to impose the reporting requirements of probation which are designed, partly, to keep track of a defendant's whereabouts



CONCLUSION



        If this Court decides to incarcerate Joan Andrews Bell, under civil contempt, in an attempt to coerce her compliance with registering for probation and periodic reporting, something she cannot do by reason of conscience, a grave injustice will have been done.  Our nation survives on the moral energy supplied by heroes and heroines of conscience who put duty to the requirements of morality above their own freedom, and even life.  Historical examples need not be repeated; Joan Andrews Bell is in that great tradition.  She is there, not by personal choice but by conscientious imperative.

        We stone the prophets and grieve as a nation for our transgression.

        Put Joan in jail to break her and this Court undermines the protections of both the United States and the commonwealth of Pennsylvania.

       The Court satisfies its perceived duty by simply placing her on probation.

December 29, 1997





Footnotes

[1]  Roe v. Wade, Id.., dissent by Justice Byron White, joined by Justice Willian Rehnquist.

[2]  This belief is not particular to the defendant, but rather is consistent with the strong teaching of the Roman Catholic Church.  As Pope John Paul II recently expressed it:

[3]  See, e.g., Torasco v. Watkins, 367 U.S. 488 (1961) (state may not require religious oath as condition of public employment); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (state may not force newspaper to publish replies to criticism); Abood v. Detroit Board of Educ., 431 U.S. 209 (1977) (state may not require public employees to contribute to ideological causes).  "To compel a person to speak what is not in his mind offends the very principles of tolerance and undrestanding which for so long have been the foundaion of our great land."  Russo v. Central School Dist., 469 F. 2d 623, 631 (2d Cir. 1972), cert. denied, 411 U.S. 932 (1973).
        Also, in CWA v. Beck, 487 U.S. 735 (1988), and International Ass'n of Machinists v. Street, 367 U.S. 740 (1961), the Supreme Court construed labor statutes in such a way as to avoid First Amendment problems that would result from compelling union members to pay dues for political activities with which they disagreed.

[4]  It is interesting to note that, in protecting those whose religious convictions cause them to act in a manner proscribed by the government or to refuse to act in a manner prescribed by the government, our Constitution is consistent with the teaching of the Roman Catholic Church, as recently articulated by Pope John Paul II:

"Those who have recourse to conscientious objection must be protected not only from the legal penalties but also from any effects on the legal, disciplinary, financial and professional plane." - Evangelium Vitae [The Gospel of Life], Section 74 (1995).

[5]  The Supreme Court later ruled that the State of Maryland could not force an atheist to express a belief in God before giving him a job as a notary public.  See Torasco v. Watkins, 367 U.S, 488 (1961).

[6]  See, e.g., Shilletani v. United States, 384 U.S. 364, 371(1966); United States v. Bryan, 339 U.S. 323, 330 (1949); United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980); United States v. Wendey, 575 F.2d 1025 (2d Cir. 1978).



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