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Ga. Lawyers Pursue Family Values Vision With Abortion Case
State parental notification law at issue in case of minor who had abortion
Fulton County Daily Report
June 08, 2009
Attorneys S. Fenn Little Jr. and Jonathan D. Crumly earn most of their money from construction law and criminal defense cases. But their passion is pressing litigation to protect religious freedom and their view of family values.
The two are pursuing litigation against an Atlanta-area abortion clinic that has gained nationwide attention among groups opposed to legal abortion. The attorneys also have been promised funding help from a conservative legal action organization. The case allows the courts an opportunity to clarify how diligent health care providers must be in complying with a state law that requires parental notification -- but not permission -- when a minor requests an abortion.
That case is a suit filed on behalf of a Hall County, Ga., teenager, Renee Wymer, against a Chamblee abortion clinic. Wymer and her mother, Genevieve Patterson, allege that Northside Women's Clinic violated the state's parental notification law and Woman's Right to Know Act when it performed an abortion for the teenager without notifying her mother. Wymer and Patterson suffered "mental and physical pain and suffering due to the violence of the" abortion, according to the complaint. The teenager gave the clinic a note signed by her then-boyfriend's mother, who represented herself as the girl's mother.
Little and Crumly took the case on contingency and are seeking unspecified punitive damages against the clinic. They've also been promised funds to finance discovery from an Arizona nonprofit group, the Alliance Defense Fund, that supports litigation opposing abortion rights and same-sex marriage.
The two Atlanta lawyers already have taken advantage of training offered by the ADF. ADF provides a free, week-long seminar called the National Litigation Academy to lawyers who want to learn more about how to handle religious liberties litigation. According to the ADF Web site, the academy trains lawyers to "battle the radical homosexual legal agenda, defend parental rights, uphold the sanctity of human life and protect religious freedom." About three years ago, Crumly and Little attended the academy.
The suit against the Northside Women's Clinic comes at a time of heightened tension in the long-running battle in the United States over abortion rights. On May 31, Kansas physician George Tiller was shot and killed as he was handing out programs before the Sunday morning service at his Wichita church. Tiller was a longtime target of anti-abortion groups because he was one of a small number of U.S. doctors who performed late-term abortions.
A 51-year-old Kansas City, Mo., man, Scott Roeder, who friends and family members say was involved with anti-government and anti-abortion groups, has been charged with first-degree murder in the slaying, according to The Associated Press.
Citing the potential for violence against its doctors and employees, as well as privacy concerns, attorneys for Northside Women's Clinic and its physicians filed an emergency motion asking DeKalb Superior Court Judge Gregory A. Adams to seal the case filed by Crumly and Little and to prohibit any dissemination of information about the litigation.
The Fulton County Daily Report will intervene in the case, opposing the motion to seal, and will ask Adams to keep the case open to public view, according to the newspaper's editor-in-chief, Ed Bean.
"We believe the public interest is served by allowing the public access to this case," Bean said. "There is a substantial public policy issue underpinning the lawsuit, and justice is ill-served by conducting such a case in secret. At the same time, we don't oppose reasonable measures the court might take to protect the privacy of patients and their families."
The Fulton County Daily Report will file a motion to intervene through its attorney, Bruce P. Brown of McKenna Long & Aldridge. A hearing on the motion to seal is scheduled for 9 a.m. Tuesday in DeKalb County Superior Court. The case is Wymer v. Northside Women's Clinic, No. 09CV6170.
Defense attorneys declined to comment on their motion to seal the proceedings. Hall Booth Smith & Slover partner Ashley D. Phillips Purcell represents Northside Women's Clinic. Carlock, Copeland & Stair partner Wayne D. "Dan" McGrew III represents Dr. Grady Strickland. Peters & Monyak partner Jonathan C. Peters represents Dr. Susan Wheatley. Strickland and Wheatley are the doctors who are the named defendants in the Wymer suit.
For both Crumly and Little, a primary motivation for opening their own law firm in March 2007 was the chance to pursue "constitutional litigation from a Christian perspective," Little said.
Little left a career as a chef and the owner of a food-manufacturing company to return to practicing law. The son of Dalton, Ga., attorney Sam F. Little, the younger Little graduated from the University of Georgia law school and moved to Chatsworth, where he practiced "small-town" law, "trying a ton of cases" in criminal defense, slip-and-fall, car accidents and other matters, he said.
He later moved to Atlanta, where he became a chef. After a chef apprenticeship with the Buckhead Life Restaurant Group, Little started a business that made marinara sauces and other foods for restaurants. He ran the business for about eight years.
During that sabbatical from the law, Little continued to maintain an interest in religious legal matters. While performing volunteer work for the evangelical and political-action group Focus on the Family, Little became familiar with the Alliance Defense Fund. "I saw the cases ADF was involved with, and I felt like that's what I was put on this earth to do," Little said.
Little sold his food company, reactivated his law license and submitted an application to the ADF's National Litigation Academy in Scottsdale, Ariz. He attended a session of the academy held in July 2006.
Attending the same session was Jonathan Crumly. Although Crumly and Little both attend the Church of the Apostles on Northside Parkway at I-75, the church's congregation is very large and the two attorneys didn't know each other, Little said. Little knew about Crumly, however, and he said he made a point of introducing himself to Crumly at the ADF academy.
Crumly's participation in the ADF academy came during a successful stint as a construction-law litigator for Alston & Bird. He has been involved in a number of construction-law cases in the U.S. Court of Appeals and the Court of Appeals of Georgia. Crumly was co-counsel to Skanska USA in a dispute with a grading subcontractor, a matter that went to the 4th U.S. Circuit Court of Appeals. In 2004, Crumly co-authored a New York Law Journal article, with former Alston & Bird partner Robyn E. Ice, about mold-related litigation.
But Crumly maintained a side interest in religious-freedom law and throughout his practice of construction law he took cases aligned with that interest. One example: Crumly was co-counsel to Notre Dame Academy in a suit filed against the city of Suwanee, in which the Gwinnett County Catholic school said the city's denial of its re-zoning request for an expansion of its facilities constituted religious discrimination. Motions for summary judgment in the case are due June 15.
Since forming their firm, Crumly and Little have maintained active practices in a wide variety of areas, in addition to the pursuit of religious freedom and constitutional law matters. Little, for example, is representing Alex White, the informant in the federal investigation of the botched drug raid and shooting death of a 92-year-old Atlanta woman, Kathryn Johnston. Among Crumly's recent cases are a suit filed against the Atlanta Public Schools, on behalf of a parent of a Sutton Middle School student, for not allowing the child to form a Bible club at the school. Crumly also sued CNN in Fulton County Superior Court in April for allegedly handcuffing and physically assaulting a street preacher.
Little said that he brought in the Wymer case to the firm, although he added that he doesn't recall if the case was referred through the ADF or through the Christian Legal Society of Virginia. Both Crumly and Little are included on lists the two groups have compiled of attorneys whom they recommend for handling religious-freedom cases.
Because it's a nonprofit group, and the Wymer case asks for damages, ADF is not directly involved in the matter. But the organization does plan to provide a grant to help pay for discovery costs and other matters, Little said. The exact amount ADF will contribute has not yet been determined. "Thus far we haven't taken a nickel," Little said. "We've fronted everything so far."
The ADF employs more than 40 staff attorneys throughout the United States, said the group's senior legal counsel, Douglas Napier. These attorneys handle constitutional and civil rights matters, he said.
But there is a supplemental army of attorneys, numbering in the thousands, who have trained at the National Litigation Academy, Napier said. The lawyers receive training at the academy that is similar to a continuing legal education program, he said.
"Most lawyers do not consider themselves constitutional lawyers," Napier said. "You generally can't make a living doing this full time. You're not going to find a specialist in private practice who's built his practice suing abortion clinics."
The Wymer case is a natural one for ADF to support, Napier said.
"There is a dual interest here: the specific individual rights of the parents and the teen who went to the clinic, and then there's a tort claim," Napier said.
"When it comes to life issues, these laws are put on the books so women are informed so they have the support, input and information from their parents and the process moves forward in a responsible fashion," he said. "When these laws are broken, they need to be held accountable."
In April 2007, Wymer, who was 16 at the time, learned that she was pregnant with her then-boyfriend, Mitch Cook, according to filings in a criminal case last year in DeKalb State Court. The boyfriend's mother, Cindi Cook of Flowery Branch, Ga., learned of the pregnancy and suggested Wymer have an abortion, according to the court filings in the criminal case that was brought against Cindi Cook. Cook and her son "specifically searched for an abortion clinic that would violate Georgia parental notification laws," according to a court filing in the criminal case.
They found the Web site of Northside Women's Clinic, and the boyfriend, at Cindi Cook's urging, took his girlfriend to the clinic on May 12 to have the abortion procedure, the criminal complaint against Cindi Cook said.
Georgia is one of several states that require a parent to be informed if their child is having an abortion, although the parent's approval is not required. Cindi Cook was convicted of violating the parental notification act and for interfering with custody because she provided a note that she had signed for the teen to present to Northside Women's Clinic. The note said "I, Cindi Cook, parent of Renee Wymer ... am aware that she is having an abortion. ... If you have any questions, please call me."
Cook was sentenced to a year in jail, the maximum for a misdemeanor violation. She was released in December after serving six months. Two numbers listed for Cook in Flowery Branch were disconnected.
According to the complaint filed by Little and Crumly, Northside Women's Clinic and the doctors violated state law requiring parental notification because they did not call the phone number that Cook provided on her signed note. Further, a note is "not an acceptable substitute for notice under Georgia law at the time of the abortion," the complaint said.
"It would have made it a lot easier for the clinic to avoid being sued if Wymer's real mother had signed the note," Crumly said.
"But in our view of the statute, accepting the handwritten note without calling the parent who signed is not acceptable," Crumly said. "If the child's last name was different from the parent's last name who signed the note, the person providing the service should take steps to confirm it's the right child."
But according to an attorney familiar with the parental notification law and the Woman's Right to Know Act, and who is not involved in the case, the matter is not that simple because the abortion laws must be reconciled with the state's general consent for medical or surgical procedures.
"All of this happens within the context of providing quality health care," said Atlanta attorney Elizabeth J. Appley, who has lobbied at the state Capitol on behalf of the Women's Policy Group. Appley added that she's not familiar with the facts of the Wymer case and declined to elaborate.
The code section that Appley cited in reference to the informed consent law is O.C.G.A. § 31-9-6 (c), which reads, "Any person acting in good faith shall be justified in relying on the representations of any person purporting to give consent, including, but not limited to, his identity, his age, his marital status, his emancipation, and his relationship to any other person for whom the consent is purportedly given."
The Fulton County Daily Report was unsuccessful in attempts to reach legal counsel at the state chapters and national offices of several abortion-rights legal groups, including the Center for Reproductive Rights, Legal Momentum, NARAL Pro-Choice America, the National Organization for Women and Planned Parenthood.
