Suit Against Abortion Doctor Threatens
First Amendment Rights, ACLU Argues

FOR IMMEDIATE RELEASE
March 28, 1997

A suit filed by an anti-abortion activist against Boulder abortion doctor Warren Hern threatens rights protected by the First Amendment, according to the American Civil Liberties Union (ACLU) of Colorado, which has asked to intervene in the lawsuit as a friend of the court.

The lawsuit, which seeks $10 million in damages from Dr. Hern and other defendants, was filed in federal district court by Kenneth Scott, who has participated as often as several times a week in militant anti-abortion protests in the Denver area and the rest of the country.

Scott’s lawsuit asks for damages because of information Dr. Hern provided in connection with two court actions filed against Scott in Boulder County in December, 1995. In the first, filed by the Boulder County prosecutor, the court ordered that Scott be committed for 72 hours for a psychiatric examination on the grounds that he was gravely disabled or a danger to himself or others. The court relied in part on information that Dr. Hern provided, in a sworn declaration, at the prosecutor’s request. In the second action, Dr. Hern obtained a restraining order against Scott on the basis of the same information.

"Dr. Hern got sued for speaking out," said Mark Silverstein, ACLU Legal Director. "He was in fear for his life, and he provided detailed documentation to the government, in good faith and pursuant to Colorado statutes, to explain the basis for his fear. Scott’s lawsuit seeks to punish Dr. Hern for providing this information to the government. We believe that the lawsuit should be dismissed because Dr. Hern’s communications are protected by the First Amendment, which guarantees citizens the right to petition the government for redress of grievances."

In his 1995 declaration, Hern explained that Scott was affiliated with an anti-abortion group that had published a "hit list" of physicians -- including Hern -- who were targeted for assassination because they provided abortion services. Hern documented several instances in which Scott had declared that Dr. Hern did not have much more time to live.

Hern attached documents attesting to Scott’s extensive arrest record, his skill and familiarity with firearms, and his history of mental illness, which included four hospitalizations for psychiatric reasons and a diagnosis of "bi-polar disorder depressed with psychotic features." Hern attached a 1995 evaluation of Scott by a clinical psychologist who stated that "[i]t appears that religion is utilized as a justification for his actions. His strong anti-abortion feelings coupled with the previous areas of concerns, will make individuals who are perceived as going against his belief system a likely target."

According to declaration, Hern learned from a law enforcement official in October, 1995, that Scott had been found looking for Dr. Hern’s home in a remote area of Gilpin County. According to the report, Scott stated that he wanted to warn Hern "that he doesn’t have much time left." In December, Hern learned that Scott had located Hern’s residence, a discovery that Hern regarded "as the equivalent of a death sentence." The court actions against Scott were filed soon thereafter.

"This lawsuit should be dismissed because it represents nothing more than an attempt to retaliate for Dr. Hern’s constitutionally-protected communication with the government," Silverstein continued. "The ACLU opposes SLAPP suits."

The term SLAPP, which stands for Strategic Lawsuit Against Public Participation, was coined by George W. Pring, a law professor at the Denver University College of Law. In his recent book, "SLAPPs: Getting Sued for Speaking Out", Pring documents what he describes as a growing trend: "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to ‘speak out’ on public issues."

"In many cases, the real purpose of such SLAPP suits is not to achieve results in the courtroom, but to silence critics who suddenly find themselves hauled into court and strapped with the burden and tremendous expenses of defending themselves in a lawsuit," said Lori Potter, of Kelly, Haglund, Garnsey & Kahn LLP, an ACLU volunteer cooperating attorney who submitted an "amicus" brief on behalf of the ACLU. "SLAPP suits like these represent illegitimate retaliation for exercising constitutional rights," Potter continued. "Courts that recognize this have been willing to dismiss the lawsuits at an early stage. That’s what the ACLU has asked the court to do in this case on behalf of Dr. Hern."

In addition to Dr. Hern, the defendants named in Scott’s suit include the State of Colorado, the County of Boulder, a Boulder County prosecutor, the Colorado Mental Health Institute at Fort Logan, Michael Newell, an investigator, and David Graybill, the chief psychiatrist at Fort Logan. Graybill initially determined that Scott should be committed for an additional 90 days but revised his opinion after Scott had spent about five weeks in the Fort Logan facility.

Return to 1997 News Releases Main Page
Return to ACLU of Colorado Home Page

This page was last updated 01/15/00.

© Copyright 1998, ACLU of Colorado, All Rights Reserved