Legal assault -- Using the Courts to Harass
28 Jul 2001
A Florida doctor who performs late-term abortions has been convicted of criminal charges ostensibly unrelated to abortion. Pro-choice advocates say the case is another example of using the courts to harass abortion providers.
by hillary frey and miranda kennedy
The Confederate flag flies high over the county government complex in the northern Florida city of Ocala, where Dr. James Scott Pendergraft was convicted in February of extortion, conspiracy and mail fraud by the U.S. government. In an unprecedented attack on an abortion provider through the criminal justice system, local officials in Ocala collaborated with federal prosecutors to shut down Pendergraft on the grounds that he conspired with a colleague to extort money from the government. An African-American late-term provider who owns five Florida clinics, Pendergraft received a sentence of almost four years in jail and a $25,000 fine on May 24. He has filed an appeal with the 11th Circuit Court of Appeals. His petition to remain free on bond during the appeals process was denied by a federal judge. His appeal of that decision was also denied. He has requested an emergency appeal to a three-judge panel. There was no ruling as of press time.
The prosecution charged that Pendergraft and his business consultant, Michael Spielvogel, acted illegally by asking for an exorbitant settlement sum in a civil lawsuit they brought against the city and county in 1998. Pendergraft maintains his innocence, arguing that the government's charges against him stem from the personal anti-abortion agendas of local officials. "They weren't interested in getting the truth," he says defiantly. "They were interested in getting me."
During Pendergraft's trial, the judge and prosecution frequently claimed that the charges were about extortion, not abortion. Pendergraft's attorneys disagree. The two principal witnesses against the doctor -- County Commission chairman Larry Cretul and Marion County attorney Virgil Wright -- are members of the First Baptist Church of Ocala, a decidedly "pro-life" institution whose 4,500 congregants were urged to protest Pendergraft's clinic in Ocala three and a half years before his trial. Pam Piersante, the FBI agent who worked with the U.S. prosecutor to charge Pendergraft, attends the Queen of Peace Catholic Church in Ocala, where many clinic protesters are members. Her priest, Patrick O'Doherty, wrote to Pendergraft mournfully querying, "Doctor, how can we honor you since the services you provide are "death' to children and as you know sometimes "death to mothers'? God wants you to stop doing abortions."
The jury -- eight women and four men, all white but one, and most of retirement age -- was also stacked against Pendergraft, explains defense attorney Larry Colleton. "The judge limited our ability to ask questions. Maybe six or seven of the 100 questions we proposed were asked. I don't think we really ever got to know the people who were selected, and that hurt." Even more important, observes Susan England, an Orlando attorney who's been following Pendergraft's case, was that jurors' religious affiliations and abortion views were deemed irrelevant to the trial. "The examination of prospective jurors amounted to "What's your name, address and phone number? Don't care if you're pro-choice or anti-choice, do you think you can render a fair decision? Thank you.'"
Was it possible for Pendergraft to get a fair trial, one that had "nothing to do with abortion," in Ocala -- where the last abortion clinic was burned to the ground in 1989, and no one was ever charged? Or for that matter in Marion County, "God's country," where a county commissioner designed popular state license plates with "Choose Life" scrawled in childlike writing? Were the authorities "sexist, consumed by religious bias, incompetent or something more sinister?" asks longtime Floridian and feminist clinic owner Patricia Baird-Windle. Manager of Pendergraft's Ocala Women's Center, Diana Bellomo, a lifelong Ocala resident raising her own family there, is sure of the answer: "When you come to a city like this, where nothing is ever going to change, where they disliked Dr. Pendergraft before he ever came here, you know it's going to be unfair."
Abortion is especially rancorous ground in Florida, scene of the first killing of an abortion doctor by an anti-abortion protester in 1993, and of noisy protests outside abortion clinics across the state. In this atmosphere, the 43-year-old Pendergraft, with his high-profile chain of full-service clinics, is seen as a public pest. He probably provides more abortions in his five clinics than any other doctor in the state, if not the country. His Orlando clinic alone does a whopping 5,000 procedures a year. Pendergraft advertises his clinics aggressively, undercuts other providers' prices, speaks openly about the harassment he faces, does his rounds in a bulletproof vest and owns a firearm. After abortion provider Barnett Slepian was murdered in Buffalo in 1998, Pendergraft told ABC News, "Abortion is a cause worth dying for." And he still believes it. "It's worth it to me to fight," he says. "You got a lot of people being scared out of this business. But I'll fight until I don't have anything 'cause I came from nothing."
The son of a mortician and a nurse, Pendergraft grew up in rural North Carolina. He decided on medical school at the encouragement of an aunt he was close to, whose illegal abortion made her infertile. Unlike most abortion doctors, Pendergraft is board-certified as an Ob-Gyn and he completed a specialty fellowship in maternal/fetal medicine and high-risk obstetrics, training that only 1,100 or so physicians nationwide have received. "(Pendergraft) was unequivocally one of the best doctors I ever worked with, in a variety of ways: medical/surgical techniques, handling of uncommon conditions and sensitivity to women's needs," says Baird-Windle, who hired Pendergraft a decade ago to perform abortions in her Melbourne clinic.
At his Orlando and Tampa clinics, Pendergraft performs medically necessary abortions up to the 28th week of pregnancy. Despite the sensationalizing of late-term procedures, abortions after 25 weeks are performed rarely and almost always under extreme circumstances -- if there is a severe fetal abnormality or if the woman's life is in danger. In fact, because these high-risk procedures are medically tricky and politically charged, only a handful of doctors perform them worldwide. Pendergraft estimates that 5 percent of his patients travel to his late-term clinics from South America, Europe or even the Middle East, having heard about his services on the Internet or by word of mouth.
Pastel pink with an American flag flying from a 30-foot pole, Pendergraft's Ocala Women's Center would stand out among the city's auto-repair shops and IHOPs even if it weren't surrounded by protesters. Greater Ocala is an old agricultural community of 46,000 that sprawls across lush, tropical Marion County, renowned for its thoroughbred horses and hot springs. Although it's just an hour's drive from Walt Disney World, the county, dotted with Southern Baptist churches, is culturally and ideologically closer to the Dixiecrat Deep South.
African-Americans make up about 22 percent of Ocala's population and 12 percent of Marion County's. As recently as March, local civil rights groups asked the County Council for the third time to remove the Rebel flag from its compound. Yet even after state capitol buildings in Florida, South Carolina, Georgia and Alabama have taken down that relic of their Confederate past, the city of Ocala refuses to do so. Close to Pendergraft's clinic is West Ocala, the black section of town. A striking contrast to the palatial houses nestled in rolling hills that have lured many retirees to the area, West Ocala features shabby bungalows, boarded-up buildings and faded stores lining a highway. The NAACP office sits among them, a small house distinguished by only a hand-painted sign.
Pendergraft has encountered various obstacles to operating abortion clinics over the years, but in Ocala, he says, there was a concerted, official effort to keep him out of town. Shortly after he purchased the clinic building in September 1997, the Marion County Board of Commissioners sent him a letter asking him to "reconsider" opening, citing the "controversy" an abortion clinic would bring to Ocala's "family-oriented community." Pendergraft received hundreds of similar letters from other citizens, and thousands of parishioners signed a petition asking him not to come.
The board's letter especially worried Michael Spielvogel, a former real-estate broker who had recently begun helping Pendergraft to manage his business. Spielvogel spoke with board chairman Cretul about selling the clinic building to the local government, which he viewed as a possible way out of an increasingly tense situation. For the most part, Pendergraft stayed out of these negotiations. As it turned out, Spielvogel's plan backfired: Cretul went to the Ocala police, suspicious that Spielvogel might be trying to extort money from the county. His theory? Spielvogel was angling to capitalize on the community's fear of an abortion clinic by selling the building at a profit without ever opening up shop.
At this point, Pendergraft still wanted to open his clinic as planned in the spring of 1998. But one evening in January of that year, he finished work to find Spielvogel in a clinic office, apparently on the phone with Commissioner Cretul, flushed and upset. During the encounter, Spielvogel appeared to repeat a threat from Cretul, which rang to the effect of "what happened in Alabama is nothing compared to what's going to happen in Ocala," referring to the 1997 bombing of a Birmingham abortion clinic. "I told him, "If you're scared, call the FBI,'" recalls Pendergraft. Actually, he already had. But here's the twist: Cretul, who taped his conversations with Spielvogel, never made such a threat; Spielvogel, as he later admitted on the witness stand, had lied to Pendergraft. A month later, without disclosing that it had discovered Spielvogel's fabrication, the FBI informed Pendergraft and Spielvogel that it would not be investigating Larry Cretul.
Understandably, Pendergraft was baffled and concerned. Up until then, he hadn't worried about much besides the usual -- hiring staff and drawing patients -- when it came to setting up in Ocala. But the notion that the FBI wouldn't investigate what appeared to be a bomb threat was troubling, and he began to have second thoughts. If everyone in Ocala, including the FBI, was against him, maybe it was a bad idea to go there. Perhaps he should follow Spielvogel's advice and sell the clinic after all.
So Pendergraft sent Cretul a letter in February 1998 suggesting that if an offer was going to be made to purchase the building, it be made then, and that all communication on the matter be addressed to Spielvogel. No deal was struck, and Pendergraft opened his clinic to a firestorm of protest in July.
Since opening day, protesters have stood along the perimeter of the clinic's parking lot the two days a week abortions are performed, waving signs at passing traffic (Abortion Kills: God Calls It Murder) and shouting at patients and workers. Around 15 protesters make up what they call a "mass unit," offering prayer and "sidewalk counseling" to women entering the clinic. Two months after the clinic opened, the Alpha Center for Women set up shop next door, a "Christian pregnancy center" that offers free pregnancy tests and recommends adoption.
Not long after opening, Pendergraft asked Marion County and Ocala law enforcement for off-duty police officers to protect his patients and staff. Both departments denied his request. Frustrated, Pendergraft then filed a lawsuit against the county, city and various individuals in December 1998. On the advice of his attorney at the time, Roy Lucas, Pendergraft later added to the charges a violation of the Freedom of Access to Clinic Entrances (FACE) law based on Cretul's alleged threat to Spielvogel. In February 1999, after Pendergraft and Spielvogel filed affidavits attesting to that threat, Marion County attorney Virgil Wright set up a settlement conference between himself, Pendergraft, Spielvogel and Lucas, which was surreptitiously taped by the FBI.
Lucas had proposed a wild settlement sum of $6-million to Wright before the conference. But during the meeting, Wright said that any settlement over $100,000 was out of the question. Lucas knew that figure would not even cover Pendergraft's initial investment in the clinic building, let alone compensate him for lost work, and held up a newspaper headlining a $107-million settlement for a clinic in Oregon. The characteristically brazen Pendergraft added that he'd be happy to take the case to trial: "Let the jury decide; the facts are the facts. We will bankrupt the county." Although Pendergraft insists this was the bombastic language of deal-making, not a threat, the prosecution cited it again and again during the trial as evidence of extortion.
A grand jury indicted Pendergraft on charges of conspiracy (with Michael Spielvogel), extortion and mail fraud on June 13 of last year. After the defense petitioned unsuccessfully to relocate out of Ocala, the trial began this past January at a courthouse less than two blocks from Pendergraft's clinic. Tracie Stern, an activist with Refuse & Resist!, attended the proceedings from start to finish. "The prosecution portrayed Pendergraft the way they like to portray abortion providers -- as this money-grubbing doctor who doesn't care about women," says Stern, who led an ad hoc Pendergraft defense committee. "The judge didn't play fair with the defense attorneys, and (U.S. prosecuting attorney Mark) Devereaux was consistently belittling and belligerent. They were counting on conservative Ocala to bring them the verdict they wanted."
To make matters worse, there was racism to contend with, inside the courtroom and out. "Racism here is more of a factor than you first realize," says Elizabeth Van, an Ocala Women's Center volunteer escort who has lived in Ocala for three years. "Here it's not just acceptable; it's expected." Until the local NAACP branch took an interest late in the trial, Pendergraft and his two attorneys were the only African-Americans in the courtroom, save the one black juror. So maybe it shouldn't have come as a surprise when prosecutor Devereaux described Pendergraft as having "shucked and jived" on the witness stand. This mocking remark made headlines in the Ocala Star-Banner and pushed the outraged defense to demand a public apology; Devereaux continues to insist it was not a racial slur.
On Feb. 1 the jury convicted Dr. Pendergraft on all counts. The prosecution's evidence? As proof of conspiracy, they had Pendergraft's last letter to Larry Cretul, offering to discuss the building's sale, but directing correspondence to Spielvogel, as well as the affidavit saying Pendergraft believed that Cretul had threatened the clinic; for extortion, the tape of the settlement conference, during which Pendergraft "threatened" to bankrupt Marion County; and for mail fraud, the fact that he sent his affidavit and FACE lawsuit through the U.S. mail. SUNY Buffalo law professor Lucinda Findley, who is working on Pendergraft's appeal, said, "This is one of the most mind-bogglingly outrageous prosecutions that I have ever encountered."
Yet the medical and feminist mainstream has been slow to come to Pendergraft's defense. Fellow abortion providers, divided by fear and fierce competition, have mostly turned a blind eye to his case. In a climate where the heads-down approach is the safest and most acceptable route for abortion providers, Pendergraft is a shameless marketer, taking full-page ads in the phone book and advertising on highway billboards and local radio stations. "Nobody I've heard suggests that he's not a top doctor and a caring guy," explains attorney Susan England, "but the community of providers is in denial. They have to be in denial or they won't get up in the morning."
In addition, some argue that Pendergraft's decision to open a clinic in Ocala was a strategic mistake. Says fellow clinic owner Baird-Windle, "going into Ocala was not a wise move. It was waving a red flag at a bunch of bulls in a minuscule market with good service available only 35 miles away (in Gainesville)." Similarly, Pendergraft was criticized for opening the Orlando clinic in 1995. Three providers were already operating there, although the vast majority of U.S. counties have no provider at all. "People feel I bullied my way into Orlando," Pendergraft admits, but he is quick to point out that there is great demand for his low-cost late-term procedures.
At the April 22 NOW Emergency Action for Women's Lives in Washington, D.C., where close to 10,000 rallied for reproductive rights, NOW president Patricia Ireland introduced Pendergraft to a cheering crowd as "one of the brave men who keeps our rights accessible." But many groups that shared the stage with Pendergraft at the rally -- Planned Parenthood, the Feminist Majority Foundation and Physicians for Reproductive Choice and Health -- have yet to sign the petition supporting him. During Pendergraft's trial, members of the local NAACP, NOW and his defense committee led by Refuse & Resist! were his only backing in the courtroom, and the only activists talking to the press or raising funds for his case. According to Ireland, because many groups that represent providers see Pendergraft as a lightning rod, they didn't initially grasp the implications of his case. "I think the trial made a lot of people finally recognize that there was this alliance among the public officials in the county -- the FBI agent, the police chief and the anti-abortion churches that are doing the harassment," she says.
The pro-choice community's cautious response to Pendergraft's case speaks to the culture of fear and aversion around abortion, and a stigma against abortion providers so great that even advocates of choice back away from contentious cases. Furthermore, reproductive rights groups are continually fending off anti-choice attacks -- in the form of malpractice suits and targeted restrictions against abortion clinics -- leaving few resources and little energy for grassroots-level and individual casework. But leveling criminal charges against an abortion doctor is a new and dangerous mode of assault that demands a vigorous response from the pro-choice movement.
Activists and lawyers warn that Dr. Pendergraft's conviction has dire implications for abortion providers nationwide. "Providers have been frightened off in a variety of ways -- they've been murdered, they've been harassed -- and this is a new version," says Susan England. "The message here is if they want to get you, they can."
This story first appeared in The Nation magazine.
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