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Attempts by a group of doctors to collect damages from anti-abortion activists reached a new nadir of confusion Tuesday when the 9th U.S. Circuit Court of Appeal weighed in on the case for the third time. The latest opinion, by a conservative-leaning three-judge panel, lowered an Oregon trial court’s $109 million punitive damages award to about $5 million. And while both sides claimed victory, a lawyer for the American Coalition of Life Activists — which posted the doctors’ names on an online hit list — said he plans to try for a second time to bring the case to the U.S. Supreme Court. The six-year litigation saga surrounding the “Nuremberg Files” — a Web site advocating the elimination of abortion providers — presented courts with a prickly conflict between abortion rights and the First Amendment. While activists claimed a free speech right to post the names of abortion providers, the doctors said they were so frightened that they put their families in bulletproof vests. After a three-judge 9th Circuit panel in 2001 overturned an Oregon jury’s verdict in favor of the doctors on the grounds that the site was protected speech, a sharply split en banc panel reversed that decision the following year. The majority in the 6-5 en banc ruling consisted of moderate judges who weren’t swayed by left-wing free speech arguments and right-wing anti-abortion concerns. In a decision written by Judge Pamela Ann Rymer, the panel remanded the case back to the Oregon trial court to determine whether $109 million in punitive damages was fair. Once the court affirmed the damages, activists did not hesitate to file an appeal. They say the amounts — which were levied separately against a host of individual defendants — were unconstitutionally high, and were made more inappropriate by the fact that there was no way the activists could pay them. When they drew a conservative-leaning panel, a reduction of damages seemed on the horizon. “Clearly, I’d prefer to have the $100-plus million, but I didn’t expect to have the $100-plus million,” said Maria Vullo, a partner at Paul, Weiss, Rifkind, Wharton & Garrison in New York who represented the plaintiffs. Vullo said she’s happy with other parts of the latest decision, also authored by Rymer. For example, the judges found the activists’ conduct to be “on the high side of reprehensibility.” But she says the political leanings of Rymer — a George H.W. Bush appointee — and the other panelists were clearly at odds with the big punitives award, which for some defendants was more than 31 times the compensatory damages levied against them. “The other two jurists also were, you would say, conservative,” Vullo said. “A more conservative jurist would reduce the punitive damages significantly. Of course the makeup of the panel is very significant.” Rymer was joined by Judges Andrew Kleinfeld and Ferdinand Fernandez, both Republican appointees. Edward White, a lawyer for the Thomas More Law Center — which calls itself “The Sword and Shield for People of Faith” — who represented defendants in the case, said he’s happy the damages were lowered, but will try again to bring the case to the Supreme Court, which in 2003 refused to review it. “The original three-judge panel got it right,” White said. “There’s been all this manipulation of the law, and that’s why it keeps going back and forth.” White added that he believes judges have had their vision clouded by the controversial issues at hand. “Because this case involves abortion, it is being dealt with differently than another civil rights case,” he said. The case is Planned Parenthood of Columbia/ Willamette v. American Coalition of Life Activists, 05 C.D.O.S. 8065.

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