Opposition Brief — Blake v. Planned Parenthood League of Massachusetts, Inc.

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Supreme Gas

( ; urt, U.S,

No.

In the . OFFICE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1994

KEVIN BLAKE, SEAN BROGAN, MARY KELLIHER,

JOHN D. McCARTHY AND MORTIMER O’SHEA,

Petitioners,

Vv.

PLANNED PARENTHOOD LEAGUE OF

MASSACHUSETTS, INC., COMMONWEALTH

OF MASSACHUSETTS, éT av.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THF

SUPREME JUDICIAL COURT OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

FRANCIS H. Fox

Counsel ef Record

ROBERT A. MILEY

WENDY ADAMS MIKLUS

BINGHAM, DANA & GOULD

150 Federal Street

Boston, Massachusetts 02110

(617) 951-8000

Counsel for the Petitioners

BATEMAN & SLADE, INC : BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED FOR REVIEW

1. In this action brought under the Massachusetts Civil

Rights Act, in which the Respondents had to prove that the

Petitioners, nonviolent demonstrators, threatened, intimidated

or coerced women seeking abortions, did the Court violate

Petitioners’ due process rights by elevating clinic patients’

rights to privacy above Petitioners’ rights to a fair trial and

ruling that Petitioners could not learn the identity, or ask ques-

tions in discovery or at trial, of the women whom they allegedly

threatened, intimidated or coerced?

2. Does an injunction barring the Petitioners from “trespas-

sing on, blocking or in any way obstructing access” to abortion

facilities impinge on protected First Amendment activity be-

cause it is overbroad and vague and will chill expression of

opposition to abortion at abortion clinics?

PARTIES TO THE PROCEEDINGS

In addition to the Petitioners listed in the caption, Operation

Rescue: Boston, Pro-Life Action Network of Arlington, Bar-

bara Bell, Timothy Biggins, Timothy Brigham, Rachel Cann,

Shirley Clifton, Sean Corrigan, William Cotter, Claire

Croghan, Robert Delery, Denise Duda, James Dudley, Robert

Filos, Darroline Firlit, Francis Haggerty, Bruce Hendon, Law-

rence Howe, Michelle LaPlume, Joseph Manning, Peter Mar-

leau, Jean Marshall, Richard McCarthy, Anne McNamara,

Bruce Murch, Adeline Murray, James Myette, Andrew Olsson,

Brian Phaneau, Fred Pulsifer, Philip St. Jean, Russell Sauinier,

Andrew Singer, Jr., Robert Souza and Catherine Wommack

were defendants in the Superior Court of Massachusetts,

Middlesex County and had judgment entered against them,

but did not appeal. None of the Petitioners are active corpora-

tions.

In addition to the Respondents listed in the caption, Preterm,

Inc., Repro Associates, Inc., Crittenton Hastings House, Stan-

ton P. Goldstein, M.D., and Rebecca Roe were plaintiffs in

the Superior Court of Massachusetts and had judgment entered

in their favor. The Supreme Judicial Court reversed and vacated

the trial court’s decision in favor of Rebecca Roe and dismissed

the action as to her. Barry Adler, d/b/a Gynecare, was a plaintiff

in the Superior Court and had judgment entered in his favor,

but did not appear or argue in the Supreme Judicial Court.

League of Women Voters of Massachusetts, Massachusetts

National Organization for Women, Mass. Choice, and Reli-

gious Coalition for Abortion Rights were plaintiffs in the

Superior Court and had judgment entered against them, but

did not appeal.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. THis CASE PRESENTS AN IMPORTANT, UNSET-

TLED QUESTION OF FEDERAL Law.

A. The Question Presented Is Unsettled.

B. The Question Presented Is Important.

Il. THE SJC’s DECISION VIOLATES THE DUE Proc-

ESS CLAUSE By DEPRIVING THE DEFENDANTS OF

A FAIR TRIAL AND PREVENTING THEM FROM

CONFRONTING THE TRUE PLAINTIFFS.

Ill. THe SJC’s Decision UPHOLDS A CONSTITU-

TIONALLY IMPERMISSIBLE INJUNCTION.

CONCLUSION

TABLE OF AUTHORITIES CITED

I. CASES

Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813

(1986)

Bellotti v. Baird, 443 U.S. 622 (1979), reh’g denied,

444 U.S. 887 (1979)

Brouillette v. Board of Directors of Merged Area IX,

519 F.2d 126 (8th Cir. 1975)

Casada v. Booneville School Dist. No. 65,686 F. Supp.

730 (W.D. Ark. 1988)

Chicago Ridge Theatre Ltd. Partnership v. M & R

Amusement Corp., 855 F.2d 465 (7th Cir. 1988)

Complaint of Bankers Trust Co. , 752 F.2d 874 (3rd Cir.

1984)

Doe v. Rostker, 89 F.R.D. 158 (N.D. Cal. 1981)

Doe v. United Services Life Ins. Co., 123 F.R.D. 437

(S.D.N.Y. 1988)

EEOC v. St. Francis Community Hosp., 70 F.R.D.

592 (D.S.C. 1976)

Free Market Compensation v. Commodity Exchange,

Inc., 98 F.R.D. 311 (S.D.N.Y. 1983)

Greene v. McElroy, 360 U.S. 474 (1959)

Hickman v. Taylor, 329 U.S. 495 (1947)

In re Murchison, 349 U.S. 133 (1955)

Lindsey v. Dayton-Hudson Corp. , 592 F.2d 1118 (10th

Cir. 1979), cert. denied, 444 U.S. 856 (1979)

Matter of Extradition of Singh, 123 F.R.D. 108 (D.N.J.

1987)

14, 15

18n

i8n

19n

18n

12n

19n

18n

TABLE OF AUTHORITIES (cont'd)

NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982) 16

National Commodity and Barter Ass'n v. Gibbs, 886

F.2d 1240 (10th Cir. 1989) 18n

National Org. for Women v. Sperry Rand Corp., 88

F.R.D. 272 (D. Conn. 1980) 19n

Nevels v. Hanlon, 656 F.2d 372 (8th Cir. 1981) 14

Planned Parenthood League of Massachusetts, Inc. v.

Blake, 417 Mass. 467 (1994) 8, 20

Planned Parenthood League of Massachusetts, Inc. v.

Operation Rescue, 406 Mass. 701 (1990) 8, 9, 20

Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52 (1976) 11

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 112 S.Ct. 2791 (1992) 1]

Redgrave v. Boston Symphony Orchestra, Inc., 399

Mass. 93 (1987) 16

Roviaro v. United States, 353 U.S. 53 (1957) 17, 18n

S. Buschbaum & Co. v. Federal Trade Comm'n, 153

F.2d 85 (7th Cir. 1946) 12

Slama v. Attorney General, 384 Mass. 620 (1981) 14n

Southern Methodist Univ. Ass’n of Women Law Stu-

dents v. Wynne & Jaffe, 599 F.2d 707 (Sth Cir. 1979) 19n

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986) 10, il

United States v. Agurs, 427 U.S. 97 (1976) 14n

TABLE OF AUTHORITIES (cont'd)

United States v. School Dist. No. 1, Lexington County,

South Carolina, 40 F.R.D. 391 (D.S.C. 1966) 19n

Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3rd

Cir. 1976), reh’g denied, 551 F.2d 1 (1976) 15, 16

Westinghouse Electric Corp. v. Republic of the Philip-

pines, 951 F.2d 1414 (3rd Cir. 1991) 19n

Whalen v. Roe, 429 U.S. 589 (1977) 11

Withrow v. Larkin, 421 U.S. 35 (1975) 11

II. CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution

First Amendment 3, 16

Fifth Amendment 14

Fourteenth Amendment 2, 14, 15

28 U.S.C. § 1257(a) 2

Massachusetts Rules of Civil Procedure

Rule 26(b) 19n

Massachusetts Civil Rights Act

G.L. c. 12, §§ 11H-111 passim

In the

Supreme Court of the United States

OcTOBER TERM, 1994

KEVIN BLAKE, SEAN BROGAN, MARY KELLIHER,

JOHN D. McCARTHY anp MORTIMER O’SHEA,

Petitioners,

Vv.

PLANNED PARENTHOOD LEAGUE OF

MASSACHUSETTS, INC., COMMONWEALTH

OF MASSACHUSETTS, &T At.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

Kevin Blake, Sean Brogan, Mary Kelliher, John D. McCar-

thy and Mortimer O’Shea respectfully petition for a writ of

certiorari to review the judgment of the Supreme Judicial Court

of Massachusetts, entered in that court on May 13, 1994.

OPINIONS BELOW

The opinion of the Supreme Judicial Court of Massachusetts

is reported at 417 Mass. 467 (1994) and is reproduced herein

as Appendix A.

The Amended Judgment of the trial judge of the Superior

Court of Massachusetts, Middlesex County, was not reported,

but is reproduced herein as Appendix B. The resulting

Amended Permanent Injunction was not reported, but is repro-

duced herein as Appendix C.

STATEMENT OF JURISDICTION

Trial judge Peter Lauriat of Middlesex Superior Court en-

tered an Amended Judgment on October 28, 1991, holding

that certain defendants, including Petitioners, had violated

MCRA. The trial judge then entered ari Amended Permanent

Injunction on October 28, 1991, barring those defendants from,

inter alia, obstructing access to any abortion facility in Mas-

sachusetts. Thereafter, on May 13, 1994, the opinion of the

Supreme Judicial Court of Massachusetts was entered uphold-

ing the injunction. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

This case involves the Fourteenth Amendment to the United

States Constitution, which provides, in pertinent part: “No

State shall . . . deprive any person of life, liberty, or property,

without due process of law... .”

This case also involves the First Amendment to the United

States Constitution (incorporated by the Fourteenth Amend-

ment to apply to states as well), which provides, in pertinent

part: “Congress shall make ro law . . . abridging the freedom

of speech... ..”

In addition, this case involves the Massachusetts Civil Rights

Act (“MCRA”), G.L. c. 12, §§ 11H-111, which, in pertinent

part, prohibits:

any person or persons . . . [from] interfer[ing] by

threats, intimidation or coercion, or attempt[ing] to

interfere by threats, intimidation or coercion, with

the exercise or enjoyment by any other person or

persons of rights secured by the constitution or laws

of the United States... .

STATEMENT OF THE CASE

This case chailenges the constitutionality of the denial of

the Petitioners’ efforts to learn the identities of and to question

during discovery and at trial those women whose civil rights

they allegedly violated.

This case was commenced on April 10, 1989, by ten plain-

tiffs, including Massachusetts clinics which provide abortion

services; membership organizations; a doctor who claims to

provide abortion services; and a Rebecca Roe, identified as a

fictitious person representative of all women seeking abortions

at plaintiff clinics. Their Complaint named 79 defendants,

including individuals and organizations. Approximately one

year later, the Commonwealth of Massachusetts intervened as

a plaintiff as well. The plaintiffs and plaintiff-intervenor filed a

Joint Amended Complaint on October 15, 1990, alleging a

single count against 87 defendants, including the Petitioners:

that they had violated MCRA by sitting in front of or inside

certain abortion clinics on certain dates, thereby delaying or

preventing abortion services for women seeking abortions on

such dates at those clinics. The Joint Amended Complaint

alleged that the defendants’ actions interfered with women’s

constitutional right to abortion services by means of threats,

intimidation or cvercion.

During discovery, the defendants, in order to learn relevant

facts to defend against plaintiffs’ claim, sought the identities

of those individuals whom the defendants had allegedly

threatened, intimidated or coerced. The defendants propounded

interrogatories to all plaintiffs which specifically asked plain-

tiffs to identify the women who were threatened, intimidated

or coerced by the defendants, i.e., those who were prevented

from receiving abortion services. Document requests were also

served on the clinics asking for documents which identified

the women scheduled for appointments on days of rescues.

Plaintiffs refused to provide this information, arguing, inter

alia, that the information sought was confidential. On August

17, 1990, the defendants filed a motion to compel responses

to these requests. Rather than compelling plaintiffs to provide

the information under a protective order keeping the women’s

identities confidential, the Middlesex Superior Court judge

denied defendants’ motion to compel. Defendants appealed to

the Single Justice of the Appeals Court, who denied relief and

refused to report her decision to the Full Bench. A further

petition to the Single Justice of the Supreme Judicial Court of

Massachusetts was also denied.

As trial approached, defendants made further attempts tc

find out whose civil rights they had violated. The defendants

issued subpoenae to clinics asking that the clinics produce

records identifying the individuals who were prevented by the

defendants from receiving abortion services. Plaintiffs moved

to quash the subpoenae. The trial judge granted this motion.

Despite their inability to find out the identities of women

who allegedly had their civil rights violated, defendants sought

means to depose these women even without their names. The

trial court entered a protective order which would have allowed

defendants to depose only those women, hand-picked by plain-

tiffs, who would testify at trial, but preventing the defendants

from learning any identifying information such as name, ad-

dress, and the like. The only woman who was going to testify

refused to appear at her deposition and did not testify at trial.

Defendants thus were unable to depose any women with whose

rights they allegedly interfered.

In short, the defendants made every effort to seek discovery

prior to trial of and from key witnesses in this action — women

who allegedly were threatened, intimidated or coerced by the

defendants’ actions. As the parties stipulated in their Joint

Pe-Trial Memorandum:

g. Defendants in discovery have sought the identi-

ties of women who were scheduled to receive serv-

ices at the clinics on the days in question and plain-

tiffs have declined to produce them.

h. One Jane Doe, who was identified by plaintiffs

as a woman who was allegedly seeking abortion

services at incident (1), and who had earlier agreed

to testify pursuant to protective order, declined to

appear at deposition and will not testify at trial. De-

fendants had no opportunity to take discovery against

Jane Doe.

At trial, defendants continued to seek identities of people

whose civil rights were allegedly violated. For each incident

about which testimony was offered, defendants asked that rec-

ords be produced that provided this information, but the trial

judge upheld the plaintiffs’ refusal to provide the records.

Again, the trial judge refused to allow defendants to call the

women as witnesses while keeping their identities confidential.

The evidence at trial was undisputed as to the basic facts

of the case: that on ten dates in 1989, 1990 and 1991, certain

of the defendants sat down, with linked arms or joined together

by Kryptonite bicycle locks, in front of doors to various abor-

tion clinics or inside abortion clinics, and remained there until

removed by police officers, causing abortion services to be

prevented or delayed. The trial court made no findings that

violence was involved in any of the protests. See Appendix

to Appellan: Brief in the Supreme Judicial Court, Volume II,

p. 525 (hereinafter, A., Vol., p. _). The police officers and

clinic staff, called as witnesses by plaintiffs, admitted that the

protesters were nonviolent, and among the most nonviolent

protesters they had seen. A., IX, 1595-1596, 1685-1687, 1724-

1727; VII, 1867, 1871; 1X, 2354, 2398, 2430. The photographs

and videotapes taken by police and plaintiffs of many of the

protests at issue show unequivocally that the protesters were

not violent, indeed were passive, and merely sat in place pray-

ing until removed by police. (A., III, 575-578, 581-587, 591,

616, 620, 634, 638-639.

In order to support a finding that defendants’ actions

“threatened, intimidated or coerced,” as required by MCRA,

the trial court relied on evidence presented by plaintiffs con-

cerning the “reaction” of women to defendants’ protests. The

court found that patients at each of the protests in issue experi-

enced “emotional reactions” to the protests which included

crying, shaking, and appearing “frightened” and “upset.” As

previously set forth, the defendants objected to this evidence

because of their inability to obtain discovery from any of the

alleged patients who experienced such reactions. Yet the court

cited no evidence of any physical or verbal! threats at any time,

by any defendant, to any alleged patient. '

The trial judge entered judgment against forty defendants

(including the Petitioners) and in favor of all plaintiffs except

the four membership organizations. Judgment entered under

MCRA on October 17, 1991, and was amended on October

28, 1991, which enjoined defendants and those in active concert

or participation with them from:

a. trespassing on, blocking or in any way obstruct-

ing access (either ingress or egress) to any facility

in the Commonwealth which provides abortion

counselling or services; or

b. physically restraining or obstructing or commit-

ting any acts of force or violence against persons

entering, leaving, working at or seeking to obtain

services from any facility in the Commonwealth

which provides abortion counselling or services;

c. directing, instructing, conspiring with and/or

aiding or abetting directly or indirectly any per-

son, persons, groups or organizations who en-

gage in any of the acts described in paragraphs (a)

and (b) above.

‘For example, there was no evidence that any alleged patient was ever struck

by any defendant; no evidence that any patient was ever physically harmed by any

of the defendants; no evidence that any alleged patient was ever threatened by a

defendant; no evidence that any defendant ever made a threatening gesture or

movement toward any patient. Indeed, there was no evidence that-any defendant

ever even said anything to any alleged patient while “blockading” a clinic. In fact,

evidence was affirmatively presented, by plaintiffs’ witnesses, that the defendants

did not do any of the above, but rather sat until removed by police. A., IV,

1069-1070, 1085-1086, 1095-1096, 1103; VI, 1584, 1591-1592, 1594, 1686, 1689,

1728, 1790-1791; VII, 1930; VIII, 2047; IX, 2353-2354, 2427-2428; X, 2612-2613,

2682, 2742-2744, 2748; XIl, 2993-2994.

Further amendment to the judgment was denied on November

13, 1991. The defendants herein (Kevin Blake, Sean Brogan,

Mary Kelliher, John D. McCarthy and Mortimer O’Shea) ap-

pealed the judgment on January 13, 1992.

The Supreme Judicial Court of Massachusetts (“SJC’)

granted a request for direct appellate review and affirmed the

trial court’s judgment.” Planned Parenthood League of Massa-

chusetts, Inc. v. Blake, 417 Mass. 467 (1994). The SJC rejected

the defendants’ claim that they were deprived of due process

or a fair trial by the trial judge’s denial of their efforts to

identify the patients with whose rights they allegedly interfered.

The court reasoned that, “[a]lthough the defendants’ relevancy

contention is theoretically sound, in the circumstances of this

case it lacks practical plausibility.” Jd. at 477..The SJC thought

it was implausible because of its perception that it was “un-

likely” that any women would have provided the defendants

with favorable testimony. /d. Furthermore, the SJC em-

phasized, the “intrusion into the privacy rights of these women

would have been substantial.” /d. at 478. Thus, the SJC ruled

that the defendants were not entitled to learn the identities of

these women, but, instead, could be found liable for threaten-

ing, intim:dating or coercing women without ever having the

opportunity to question them or even know who they were.

The SJC also rejected the defendants’ claim that the Amended

Permanent Injunction was constitutionally impermissible. /d.

at 481. Judges O’Connor, Nolan and Lynch dissented, reason-

ing that clauses (a) and (c) of the injunction were overbroad.

The dissent noted that these clauses impermissibly chilled con-

duct protected by the First Amendment, as they could be con-

strued to prohibit the hindrance of access to clinics by nonphys-

ical confrontation on public ways. /d. at 482-83, citing Planned

>There was one exception to the SJC’s affirmation of the trial court: the SJC

reversed and vacated the trial court’s decision in favor of plaintiff Rebecca Roe

and dismissed the action as to her.

Parenthood League of Massachusetts, Inc. v. Operation Res-

cue, 406 Mass. 701, 721-722 (1990) (O’Connor, J., dissent-

ing).

The federal questions at issue in this petition were raised

before both the trial judge and the SJC. The defendants briefed

and argued extensively before the SJC that their inability to

call women seeking abortions as witnesses had deprived them

of due process. They had argued this same point on numerous

grounds before the trial court. The SJC’s opinion rejected the

due process argument.

Similarly, the issues of unconstitutional overbreadth and

vagueness were raised both at the trial court level and before

the SJC. On May 21, 1990, the trial court entered a preliminary

injunction similar to the permanent injunction now in place.’

The defendants argued that the preliminary injunction was

vague and overbroad in Defendants’ Memorandum of Law in

Support of Petition that Preliminary Injunction Be Vacated,

Annulled or Suspended, July 31, 1989. On appeal to the SJC,

the appellants again briefed and argued the issues of vagueness

and overbreadth, this time with regard to the Amended Perma-

nent Injunction. The SJC’s opinion rejected this argument.

REASONS FOR GRANTING THE WRIT

The SJC decided an important question of federal law which

has not been, but should be, settled by the Supreme Court:

whether and to what extent the right to privacy outweighs a de-

*The preliminary injunction enjoined the defendants, and those in active concert

or participation with them, from:

a. trespassing on, blocking or in any way obstructing access (either ingress or

egress) to any facility in the Commonwealth which provides abortion counselling

or services; and

b. physically restraining or obstructing or committing any acts of violence against

persons entering, leaving, working at or seeking to obtain services from any facility

in the Commonwealth which provides abortion counselling or services, until further

order of this Court.

fendant’s due process right to cross-examine witnesses with

key information. The scope and importance of the ruling in

this case reaches far beyond the state of Massachusetts and

the present context of protests at abortion clinics. The SJC’s

ruling creates a precedent which allows Massachusetts and

other states to uphold discovery and trial procedures which

deprive a defendant of due process and a fair trial, in the name

of protecting a plaintiff's right to privacy. A writ of certiorari

should issue to resolve this question, both to remedy the SJC’s

denial of due process and a fair trial to the defendants by

holding them liable under MCRA for peaceful protests when

they were not permitted to face and question their accusers,

and to provide direction for the people and courts of our nation.

Moreover, the proceedings below, sanctioned by the SJC,

have so far strayed from the course of judicial proceedings

that this Court must act to correct this abuse. Heretofore, as

evidenced in numerous decisions by this Court, a litigant’s

right to a fair trial has been the cornerstone of the judicial

process. If there is a bedrock element to a fair trial, it must

be that a defendant is entitled to know the name of and seek

discovery from the plaintiff, the person who has made accusa-

tions against him. It is unheard of to deny a defendant access

to the plaintiff’s identity and to rule that a right to privacy is

more important than a right to a fair trial. This startling depar-

ture from accepted judicial procedure must be remedied.

I. THIS CASE PRESENTS AN IMPORTANT, UNSETTLED QUES-

TION OF FEDERAL Law.

A. The Question Presented Is Unsettled.

This Court has often addressed the issue of a privacy right

to avoid disclosure of personal matters, including in the abor-

tion context. See, e.g., Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747, 766 (1986),

overruled on other grounds by Planned Parenthood of South-

eastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992); Bellotti

v. Baird, 443 U.S. 622, 644 (1979), reh’g denied, 444 U.S.

887 (1979); Whalen v. Roe, 429 U.S. 589, 598-600 (1977);

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 80 (1976). This Court has also addressed the funda-

mental rights of due process and a fair trial. See, e.g., Aetna

Life Insurance Co. v. Lavoie, 475 U.S. 813, 829 (1986) (Bren-

nan, J., concurring), quoting /n re Murchison, 349 U.S. 133,

136 (1955); Withrow v. Larkin, 421 U.S. 35, 46-47 (1975).

However, the present case raises an important federal question

which does not appear to have been addressed: what happens

when these two rights conflict? Do the defendants, in preparing

a defense to allegations that they threatened, intimidated or

coerced women, have a right to confront the alleged victims

and seek relevant information from them? Or, in the name of

privacy, can the defendants be found liable under MCRA and

be subjected to fines and prison sentences, without even learn-

ing whom they allegedly threatened, intimidated or coerced?

The SJC, when faced with the conflict between these rights,

reasoned that the right to privacy superseded a defendant’s

right to question or even to know against whom he or she had

committed a tortious act. Even while admitting that the defend-

ants’ argument that the women seeking abortions who were

allegedly threatened, intimidated or coerced possessed critical

information was “theoretically sound,” the SJC denied the

defendants’ right to discover this information, so as not to

infringe on the right to privacy. The SJC’s approach threatens

to allow the right of privacy to swallow up a defendant’s due

process rights. The only basis for the decision was the SJC’s

perception, without even knowing what the women were going

to say, that the women would “obviously” not provide any testi-

mony favorable to the defendants. This is a dangerous prece-

dent. Our system of jurisprudence operates on the assumption

that our pre-existing prejudices and beliefs are not evidence;

that only what the witnesses say is evidence. If the right to

privacy allows a judge to prohibit evidence because his preju-

dices make him believe the evidence will not be useful, the

judicial role has been dramatically altered.

This Court has not faced such a set of competing circum-

stances. There is no guidance for litigants confronted with

such a conflict other than the SJC’s opinion, which goes too

far in protecting privacy rights to the sacrifice of due process.

B. The Question Presented Is Important.

A writ of certiorari should be granted because of the impor-

tance of this federal question, both for the defendants and for

future litigants whose due process rights may also be decimated

on the basis of the SJC’s opinion.

If the judicial process, criminal or civil, harbors a more

hallowed right than the right of an accused to know, confront

and question his or her accuser, such right does not immediately

come to mind. “The elementary principle underlying all trials

of whatever nature seems to be that the rule of confrontation

shall be applied where the witnesses are available. .. .” S.

Buschbaum & Co. v. Federal Trade Comm'n, 153 F.2d 85,

87 (7th Cir. 1946).* That right was denied here because of a per-

* See also Greene v. McElroy, 360 U.S. 474, 496-497 (1959) (“Certain principles

have remained relatively immutable in our jurisprudence. One of these is that where

governmental action seriously injures an individual, and the reasonableness of the

action depends on fact findings, the evidence used to prove the Government's case

must be disclosed to the individual so that he has an opportunity to show that it

is untrue. . . . We have formalized these protections in the requirements of confron-

tation and cross-examination. They have ancient roots. . . . This Court has been

zealous to protect these rights from erosion. It has spoken out not only in criminal

cases . . . but also in all types of cases. . . . Professor Wigmore, commenting on

the importance of cross-examination, states . . . ‘For two centuries past, the policy

of the Anglo-American system of Evidence has been to regard the necessity of

testing by cross-examination as a vital feature of the law. . . .”).

ceived supervening right to privacy on behalf of clinic patients.

This cannot be. The right to privacy is important and can be

preserved by protective orders, the use of pseudonyms in plead-

ings and the like (all of which the trial court refused to use,

instead flatly denying the defendants’ right to depose or exam-

ine the true plaintiffs). It cannot be used to deprive the defend-

ant of his due process right in order to shield the real plaintiff

from being asked highly probative questions by the defendant

(i.e., “were you threatened, intimidated or coerced by the

defendants?”), as happened here.

The SJC’s decision also abandons the principle of discovery

of all relevant information. Indeed, the decision does not

merely allow the privacy right to impose on the discovery of

some relevant information. The privacy right serves as an

excuse for the SJC to exclude an entire category of witnesses

who possess the most relevant information: whether the women

were threatened, intimidated or coerced by the defendants.

Such an unprecedented sacrifice of a defendant’s due process

rights can now be justified based on the SJC’s decision. There is

nothing in the SJC’s decision to prevent future courts from

refusing to allow an accused defendant to inquire into the truth

of the accuser’s allegations, the accuser’s credibility, or indeed

even the accuser’s very existence. Once a court finds that the

accuser’s allegations concern a sufficiently delicate topic, the

right to privacy can be invoked to obliterate any further explora-

tion regarding the accuser. Such a result would be at the expense

of the long-established due process rights of the defendant.

Il. THE SJC’s DECISION VIOLATES THE DUE PROCESS

CLAUSE By DEPRIVING THE DEFENDANTS OF A FAIR

TRIAL AND PREVENTING THEM FROM CONFRONTING THE

TRUE PLAINTIFFS.

Throughout discovery and at trial, defendants sought the

identities of the most important witnesses in the case, individu-

als who are in a sense the real plaintiffs: women who sought

abortion services and were allegedly prevented or delayed from

getting those services because of defendants’ activities.° The

identities of such women and information they could have

provided were critical to defendants’ ability to defend against

the claims. Defendants were deprived of due process by their

inability to discover this information.

The due process clause of the United States Constitution

provides that no state “shall . . . deprive any person of life,

liberty, or property, without due process of law. . . .” United

States Constitution, Amendment XIV, § 1. Courts have held

that “ijt is fundamental to a full and fair review required by

the due process clause that a litigant have an opportunity to

be confronted with all adverse evidence and to have the right

to cross-examine available witnesses.” Nevels v. Hanlon, 656

F.2d 372, 376 (8th Cir. 1981). Accord Complaint of Bankers

Trust Co., 752 F.2d 874, 890 (3rd Cir. 1984) (under Fifth

Amendment, “{d]Jue process mandates that a judicial proceed-

ing give all parties an opportunity to be heard on the critical

and decisive allegations which go to the core of the parties’

claim or defense and to present evidence on the contested

facts.”) (emphasis in original).° See also Chicago Ridge \

Theatre Lid. Partnership v. M & R Amusement Corp., 855

F.2d 465, 468 (7th Cir. 1988) (due process pronibits court

from relying on information where party has no opportunity

to cross-examine source of information); Brouillette v. Board

of Directors of Merged Area IX, 519 F.2d 126, 128 (8th Cir.

* Indeed, the plaintiffs to this action are not the real plaintiffs and lacked standing

to maintain the action. To have standing under Massachusetts law, “a litigant must

show that the challenged action has caused the litigant injury.” Slama v. Attorney

General, 384 Mass. 620, 624 (1981). The abortion clinics and Dr. Goldstein did

not even allege, let alone prove, any injury to themselves and had no standing.

(The claims of the remaining plaintiffs were dismissed on this ground.) The SJC

should have reversed the judgment against the defendants based on this lack of

standing alone.

* The requirements of the due process clause of the Fifth and Fourteenth Amend-

ments are identical. United States v. Agurs, 427 U.S. 97, 107 (1976).

1975) (iowa statute granting teachers a right to a hearing before

termination based on aliegations against teachers was “intended

to provide non-tenured teachers with procedural due process”

which requires, at a minimum, “notice of both the names of

those who have made allegations against the teacher and the

specific nature and factual basis for the charges”) (emphasis

added); Casada v. Booneville School Dist. No. 65, 686 F.

Supp. 730, 731-732 (W.D. Ark. 1988) (same but decision

based directly on Fourteenth Amendment). By refusing to let

the defendants know the identities of those making allegations

against them, or at least to question them under a protective

order or pseudonym, the SJC deprived the defendants of this

right.

In Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3rd

Cir. 1976), reh’g denied, 551 F.2d 1 (1976), plaintiff alleged

that Western Electric violated Title VII by discriminating

against her on the basis of sex. /d. at 1197. Plaintiff further

alleged that Western Electric had discriminated on a class-wide

basis against women and sought certification of a class of

women employed at or seeking employment at Western Elec-

tric. Jd. at 1197-1198. Based on these allegations, Western

Electric sought discovery from plaintiff of how each member

of the plaintiff class was discriminated against by the company.

Id. at 1198. The court granted Western Electric some discovery

on the issue but limited the discovery to evidence “on which

[plaintiff] intends to rely during the class stage. . . .” Jd. The

court ruled that, in providing discovery, plaintiff “need not

include any information on which she does not intend to rely,

even though it might be relevant to Western’s defense.” /d.

The Appeals Court reversed and ordered discovery, holding:

to deny Western the right to present a full defense

on the issues would violate due process. Thus, while

plaintiffs may make out a prima facie case under Title

VII without introducing evidence on individual

cases, at least under some circumstances, defendants

must be allowed to present any relevant rebuttal evi-

dence they choose, including evidence that there was

no discrimination against one or more members of

the class.

Id. at 1199. In our case, plaintiffs similarly alleged they would

not rely (although they did) on evidence concerning patients.

As in Western Electric, that is not enough to prevent defendants

from taking discovery. Defendants here should have been al-

lowed to seek discovery from patients and show that these

women may not have been “threatened, intimidated or

coerced.” See Matter of Extradition of Singh, 123 F.R.D. 108,

123-126 (D.N.J. 1987) (denial of discovery on crucial issue

violated due process).

Defendants were charged under MCRA, which requires the

plaintiffs to demonstate that: (1) a person; (2) in the exercise

of rights secured by law; (3) was interfered with; (4) by threats,

intimidation or coercion. Moreover, in the context of the con-

duct which occurred here, which included activity protected

by the First Amendment, plaintiffs had to prove that any inter-

ference with a woman’s right occurred through activity which

is not protected by the First Amendment. NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 918 (1982); Redgrave v. Boston

Symphony Orchestra, Inc. , 399 Mass. 93, 97 (1987) (“a person

exercising constitutional rights who interferes with another’s

constitutional rights is not . . . ‘interfering with the rights of

another person by “threats, intimidation or coercion,’” within

the meaning of G.L. c. 12, §§ 11H and 11I.”). Yet the defend-

ants were not allowed to confront the women who were al-

legedly seeking abortion services to inquire, among other

things, whether a scheduled abortion was delayed because of

the woman’s reluctance to encounter marching protesters, re-

luctance to be recognized, reluctance to have people show

them pictures or literature, reluctance to go near a place where

a crowd had gathered, a change of mind about the morality

of abortion, information from clinic personnel or police that

abortions were impossible that day or would be delayed due

to the protesters, or (the only pertinent reason) because she

was “threatened,” “intimidated” or “coerced” by the defend-

ants’ actions. If due process requires anything, it requires that

a defendant be allowed to learn the identity of the plaintiff so

that these questions could be asked.

A close analogy concerns the rule that where an informant

has information relevant to the defense of a criminal case, the

informant’s identity must be disclosed to the defendant or the

case dismissed. For example, in Roviaro v. United States, 353

U.S. 53 (1957), the Supreme Court reversed a conviction

because the trial court had failed to require the government to

disclose the identity of an informant to the defendant. This

Court noted that although the government had a qualified

piivilege not to disclose informants’ identities, this privilege

was limited by:

the fundamental requirements of fairness. Where the

disclosure of an informec’s identity . . . is relevant

and helpful to the defense of an accused, or is essen-

tial to a fair determination of a cause, the privilege

must give way. In these situations the trial court may

require disclosure and, if the Government withholds

the information, dismiss the action.

Id. at 60-61 (emphasis added).

The case for disclosure here is much stronger than in the

cases cited. The alleged patients had the most crucial evidence

in the case. They, and they alone, could testify whether they

actually felt “threatened,” “intimidated” or “coerced,” informa-

tion which ultimately decides whether the defendants are liable

under MCRA.’ Moreover, the reason for the privilege allowing

the withholding of an informant’s identity is the fear that the

informant may not last long on this earth if disclosure is re-

quired. If even this fear must give way to the defendant’s right

to defend himself (and it is not based on the Sixth Amendment

but rather on the concept of fairness at trial), the women’s

alleged or even a legitimate fear of harassment must give way."

The defendants herein have been deprived of their due process

’ Interestingly, plaintiffs argued and the SJC agreed that the patients’ identities

were irrelevant because the police officers and clinic personnel who testified about

the patients’ reactions were subject to cross-examination. In Roviaro, the Court

specifically held that the ability of the defendant to cross-examine police officers

about informer John Doe's activities “was hardly a substitute for an opportunity

to examine the man who had been nearest to him and took part in the transaction.”

Rovario, 353 U.S. at 64.

* Any fear of harassment could be addressed by protective orders or the use of

pseudonyms. Indeed, the principle that a defendant, in order to defend herself, is

entitled to learn who is making allegations against her is further supported by cases

in which the plaintiffs have sought to proceed under a pseudonym. In such cases,

even where courts have granted the request, they have noted that the defendant

maintains a strong interest in knowing who has sued him and is, in fact, allowed

to know plaintiff's identity even if the public at large is not. National Commodity

and Barter Ass'n v. Gibbs, 886 F.2d 1240, 1245 and n.2 (10th Cir. 1989) (denying

motion to sue under pseudonym and to remain anonymous even to defendant

because “[t]o permit this case to progress in this manner would deny the defendants

any ability to defend against the claims against them. . . .”); Lindsey v. Dayton-Hud-

son Corp., 592 F.2d 1118, 1125 (10th Cir. 1979), cert. denied, 444 U.S. 856

(1979) (denying plaintiff's motion to sue under a pseudonym, because, in part,

use of pseudonym “may cause problems to defendants engaging in discovery and

establishing their defenses. . . .”); Doe v. United Services Life Ins. Co., 123

F.R.D. 437, 439 (S.D.N.Y. 1988) (granting motion to sue under pseudonym

because, in part, “[defendant] already knows Doe’s true identity, [so] it will have

full discovery rights as the case progresses, and it will only be barred from using

or disclosing the fruits of its discovery for purposes other than the defense of this

action.”); Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D.

311, 312-313 (S.D.N.Y. 1983) (denying motion despite the fact that plaintiff agreed

to provide true identity to defendant’s counsel pursuant to protective order prevent-

ing defendant from disclosing identity to others); Doe v. Rostker, 89 F.R.D. 158,

162 (N.D. Cal. 1981) (denying plaintiff's motion to sue under pseudonym noting

that “[t]he defendant . . . has a strong interest in knowing who is suing him”).

right to a fair trial by the denial of the discovery of the women’s

identities.’

Indeed, the gross unfairness in this case goes beyond any-

thing to be found in the case books. Here the identities of the

real plaintiffs were denied defendants in discovery, so no depo-

*Indeed, even the simple but gross disregard of discovery rules and principles

by the court in this case is grounds for finding a due process violation. Discovery

of all relevant information is the cornerstone of our judicial system in both the

federal and state courts. Rule 26(b), Mass. R. Civ. P., like its identical federal

counterpart, provides for inquiry into “any matter, not privileged, which is relevant

to the subject matter involved in the pending action. . . .” Courts have consistently

noted that the right to broad and open discovery is a highly valued component of

litigation. As the Supreme Court has stated:

We agree, of course, that the deposition-discovery rules are to be

accorded a broad and liberal treatment. . . . Mutual knowledge of all

the relevant facts gathered by both parties is essential to proper litiga-

tion. To that end, either party may compel the other to disgorge

whatever facts he has in his possession.

Hickman v. Taylor, 329 U.S. 495, 507 (1947).

In civil rights cases, courts have consistently held that a defendant is entitled

during discovery to the names of those individuals whose rights were allegedly

violated by the defendant’s actions. For example, in National Org. for Women v.

Sperry Rand Corp., 88 F.R.D. 272 (D. Conn. 1980), NOW brought an action on

behalf of its members alleging that the defendant had engaged in discriminatory

practices against its women employees and applicants. The defendant sought,

through discovery, a list of al! members of NOW. /d. at 273. NOW objected,

claiming that their “privacy rights” would be infringed with harmful employment

consequences if disclosure were required. Despite NOW’s objection, identical to

the one made by these plaintiffs, the court held that NOW was required to divulge

the names of those members against whom the defendant had allegedly discrimi-

nated. /d. at 275. The court noted that the defendant was entitled to this information

“in order to prepare an adequate defense” and that, by bringing the suit, plaintiffs

had at least partially waived any right to privacy they may otherwise have had.

Id. See also Southern Methodist Univ. Ass'n of Women Law Students v. Wynne &

Jaffe, 599 F.2d 707, 713 (Sth Cir. 1979); United States v. School Dist. No. 1,

Lexington County, South Carolina, 40 F.R.D. 391, 393-395 (D.S.C. 1966); EEOC

v. St. Francis Community Hosp., 70 F.R.D. 592, 595 (D.S.C. 1976).

So clearly was the information sought by defendants relevant, indeed crucial,

to their ability to deferd that the trial court, in denying the requested discovery,

denied the defendants their due process right to a fair trial. The SJC’s decision

upholding thee denial must be reversed. See, e.g., Westinghouse Electric Corp. v.

Republic of te Philippines, 951 F.2d 1414, 1422 (3rd Cir. 1991) (order denying

discovery of relevant information requires new trial).

sitions were possible. The denial continued through trial, so

defendants could not summon any of these women to testify

at trial, deposition or no deposition. Plaintiffs put no clinic

patients on the stand at trial, so there was no opportunity even

to cross-examine, without preparation, a hand-picked represen-

tative. Adding insult to injury, plaintiffs put other witnesses

on the stand who testified that they observed patients who

were emotionally upset, but: “no, I won’t tell you who they

were.” The SJC’s decision offends the Constitution. A writ of

certiorari should be granted to remedy this deprivation of due

process.

Ill. THE SJC’s DECISION UPHOLDS A CONSTITUTIONALLY

IMPERMISSIBLE INJUNCTION.

The SJC’s decision further offends the Constitution in light

of the particular wording of the Amended Permanent Injunc-

tion. Clause (a) and clause (c), which incorporates clause (a),

forbid the defendants and others “in active concert or partici-

pation with them” from “trespassing on, blocking or in any

way obstructing access” to abortion facilities (emphasis added).

Yet such broad language goes too far, creating an impermissi-

ble chilling effect on the defendants and others acting with

them.

A reasonable person wishing to express his views about the

morality of abortion and whether abortion should be legal will

be chilled from doing so by the language of this injunction.

Such an individual cannot be confident that he will not violate

the injunction if he merely joins others on a public way near

a clinic in order to picket, pray, chant, and exhort others to

accept his viewpoint. Planned Parenthood League of Massa-

chusetts, Inc. v. Blake, 417 Mass. 467, 483 (1994) (O’Connor,

J., dissenting), citing Planned Parenthood League of Massa-

chusetts, Inc. v. Operation Rescue, 406 Mass. 701, 721 (1990)

(O’Connor, J., dissenting). The prohibition against obstructing

in any way must be construed to include the hindrance of

access to clinics by nonphysical confrontation. /d.

Such a prohibition encompasses conduct clearly protected

by the First Amendment to the United States Constitution. The

Amended Permanent Injunction will chill abortion opponents

from engaging in protected speech. It will also serve as prece-

dent for future individuals to be subject to similar, impermis-

sible chilling injunctions. A writ of certiorari should issue to

correct this unconstitutional injunction.

CONCLUSION

In light of all the reasons stated above, the Petitioners re-

spectfully request this Court to issue a writ of certiorari to

review the judgment and opinion of the Supreme Judicial Court

of Massachusetts.

Respectfully submitted,

FRANCIS H. Fox

Counsel of Record

ROBERT A. MILEY

WENDY ADAMS MIKLuS

BINGHAM, DANA & GOULD

150 Federal Street

Boston, Massachusetts 02110

(617) 951-8000

Counsel for the Petitioners

APPENDIX

TABLE OF CONTENTS

APPENDIX A

The opinion of the Supreme Judicial Court of

Massachusetts, Planned Parenthood League of

Massachusetts, Inc. v. Blake, 417 Mass.

467 (1994) Al

APPENDIX B

Amended Judgment of the trial judge of the

Superior Court of Massachusetts,

Middlesex County, October 28, 1991 Al9

APPENDIX C

Amended Permanent Injunction of the trial

judge of the Superior Court of Massachusetts,

Middlesex County, October 28, 1991 A23

APPENDIX A

PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC.,

& others' vs. KEVIN BLAKE & others.’

Middlesex. December, 7 1993. - April 11, 1994.

Present: Liacos, C.J., WILKINS, ABRAMS, NOLAN, LYNCH, O"CONNOoR, & GREANEY,

iJ.

Practice, Civil, Standing. Abortion. Injunction. Civil Rights,

Availability of remedy, Coercion. /dentification. Words,

“Threats,” “Intimidation,” “Coercion.”

In an action in which the Attorney General had standing to

seek injunctive relief under the provisions of the Massachusetts

Civil Rights Act, G.L. c. 12, $8 11H and 11I, it was not

necessary for this court to decide whether certain other plain-

tiffs also had standing. [472]

In an action seeking injunctive relief under the Massachusetts

Civil Rights Act, G.L. c. 12, §§ 11H and 111, the judge, in

granting the relief sought, concluded that the defendants’ con-

duct in knowingly trespassing on the property of clinics that

provided abortion counseling and services, and in intentionally

using their bodies or Kryptonite bicycle locks, or both, to

prevent others physically from entering, leaving or using med-

ical facilities to obtain abortions to which they were constitu-

tionally and lawfully entitled, constituted threats, intimidation,

and coercion within the meaning of the act and was an actual

or potential physical confrontation accompanied by the threat

'Pretermn, Inc., Repro Associates, Inc., Crittenton Hastings House, Stanton P.

Goldstein, Rebecca Roe, Barry Adler doing business as Gynecare, and the Com-

monwealth through the Attorney General and as an intervener. The remaining

original plaintiffs, except for Rebecca Roe, are providers of abortion services.

*Sean Brogan, Mary Kelliher, John D. McCarthy, Jr., and Mortimer O'Shea.

None of the other defendants, including Operation Rescue: Boston, Pro-Life Action

Network of Arlington, and numerous individuals, has appealed.

of harm; further, the judge was warranted in finding, and

correct in ruling, that a reasonable woman seeking abortion

services would be made fearful and apprehensive and would

feel pressured by the defendants’ conduct so that she would

desist from seeking those services while that conduct con-

tinued. [473-476]

In an action brought under G.L. c. 12, §§ 11H and 111, the

judge properly rejected the defendants’ attempts to identify

the women affected by the defendants’ conduct in “blockading”

facilities providing abortion counseling and services, none of

whom were called as witnesses by the plaintiffs, where there

was no reasonable risk in the circumstances that nondisclosure

had prejudiced the defendants’ case and where the intrusion

on the privacy rights of those women would have been substan-

tial. [476-479]

An injunctive order requiring certain defendants to refrain from

“aiding or abetting directly or indirectly” persons who engage

in specific prohibited acts was not unconstitutionally vague.

[480-48 1 ]

O’CoNNOR, J., with whom NOLAN and LyNcH, JJ., joined,

dissenting, expressed the view, previously expressed in Plan-

ned Parenthood League of Massachusetts, Inc. v. Operation

Rescue, 406 Mass. 701 (1990) (Planned Parenthood I), that

the injunctive relief granted was constitutionally overbroad

and should be vacated. [482-483]

CiviL ACTION commenced in the Superior Court Department

on April 19, 1989.

The case was heard by Peter M. Lauriat, J.

The Supreme Judicial Court granted a request for direct

appellate review. a

Francis H. Fox (Robert A. Miley & Wendy A. Miklus with

him) for Kevin Blake & others.

Judith E. Beals, Assistant Attorney General (Donna L.

Palermino, Assistant Attorney General, with her) for the At-

torney General.

John H. Henn (Teresa A. Martland with him) for Planned

Parenthood League of Massachusetts, Inc., & others.

Cornelius J.P. Sullivan, for William Cotter & another, was

present but did not argue.

Janet Benshoof, Catherine Albisa & Priscilla J. Smith, of

New York, for Center for Reproductive Law & Policy, amicus

curiae, submitted a brief.

Nonnie S. Burnes & Sarah R. Wunsch, for Civil Liberties

Union of Massachusetts, amicus curiae, submitted a brief.

WILKINS, J. The five defendants appeal from an amended

judgment that permanently enjoined them, among other things,

from obstructing access to any facility in the Commonwealth

that provides abortion counseling or services and from using

force against persons entering or leaving or working at any

such facility.

In April, 1989, the plaintiffs commenced this action pursuant

to the Massachusetts Civil Rights Act (MCRA) (G.L. c. 12,

§§ 11H & 111 [1992 ed.]).’ In April, 1990, the Attorney Gen-

‘These sections read as follows:

“Section 11H. Whenever any person or persons, whether or not acting under

color of law, interfere by threats, intimidation or coercion, or attempt to interfere

by threats, intimidation or coercion, with the exercise or enjoyment by any other

person or persons of rights secured by the constitution or laws of the United States,

or of rights secured by the constitution or laws of the commonwealth, the attorney

general may bring a civil action for injunctive or other appropriate equitable relief

in order to protect the peaceable exercise or enjoyment of the right or rights secured.

Said civil action shall be brought in the name of the commonwealth and shall be

instituted either in the superior court for the county in which the conduct complained

of occurred or in the superior court for the county in which the person whose

conduct complained of resides or has his principal place of business.”

“Section 111. Any person whose exercise or enjoyment of rights secured by the

constitution or laws of the United States, or of rights secured by the constitution or

eral was allowed to intervene in the name of the Common-

wealth. The case was tried on a joint amended complaint

stating a single claim under the MCRA and seeking a permanent

injunction in accordance with G.L. c. 12, $3 11H, 111, & 11J

(1992 ed.).* In the final judgment the judge dismissed the

claims of certain plaintiffs and dismissed claims against many

individual defendants. The injunction whose entry is chal-

lenged in this appeal was entered against Operation Rescue:

Boston, Pro-Life Action Network of Arlington, and numerous

individuals, including the five appellants. We allowed the de-

fendants’ application for direct appellate review.

The defendants make three substantive challenges to the

permanent injunction, which we shall consider in turn after

commenting briefly on the standing of the Attorney General

and the other plaintiffs to maintain this action. First, however,

we set forth certain findings of fact that are typical of the

circumstances that led the trial judge to rule that the defendants

had violated the MCRA and should be permanently enjoined.

Operation Rescue: Boston and Pro-Life Action Network

organized and encouraged participation in what they call “res-

cues,” blockades or invasions of abortion clinics. They offered

advice, training, and seminars to prepare participants in “res-

cues” for arrest, jail, and money judgments. The purpose of a

laws of the commonwealth, has been interfered with, or attempted to be interfered

with, as described in section 11H, may institute and prosecute in his own name

and on his own behalf a civil action for injunctive and other appropriate equitable

relief as provided for in said section, including the award of compensatory money

damages. Any aggrieved person or persons who prevail in an action authorized by

this section shall be entitled to an award of the costs of the litigation and reasonable

attorneys’ fees in an amount to be fixed by the court.”

“In Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass.

701 (1990), this court considered certain questions concerning a preliminary injunc-

tion entered in this case and upheld various challenges to that preliminary injunction.

In Commonwealth v. Cotter, 415 Mass. 183 (1993), and Commonwealth v. Brogan,

415 Mass. 169 (1993), this court af‘irmed convictions for the violation of that

preliminary injunction, the operative terms of which appear in the Brogan opinion.

See id. at 170 n.1.

“rescue” is to keep women out of an abortion clinic and to

prevent abortions from taking place at that clinic. The judge

found that on nine dates between August 30, 1989, and January

17, 1991, anti-abortion demonstrators blocked entrances or

physically invaded abortion clinics or buildings housing abor-

tion clinics in the Commonwealth. These “rescues” occurred

in Hyannis, Boston, Brookline, New Bedford, Worcester, and

Springfield, and involved six abortion clinics. In each of these

instances, the blocking or invading demonstrators remained

on private property after they had been notified that they were

trespassing.

It would prolong this opinion unnecessarily to recite all the

facts of each incident. As an example, we describe the August

10, 1990, blockade of Preterm Health Services, Inc. (Preterm),

a clinic located on Beacon Street in Brookline, in which each

of the defendants participated. From 6:40 a.m. until 8:30 A.M.

on that day, a group of about twenty people sat with their

backs up against the front door of the building that housed the

clinic. It was not possible to open that door. Another group

sat with their backs against the rear public entrance to the

building, preventing the door from being opened. The defend-

ants were advised that they were trespassing. Brookline police

officers read the preliminary injunction to the groups at the

two doors and demanded that they leave. Shortly after 8:20

A.M., Brookline police began removing the persons blocking

access to the building. During the period of the blockade most

patients and staff could not enter the building. A few patients

entered the building through the garage or the back door during

a brief period when that door was not blocked. Those patients

who entered after 8:50 a.M. “appeared to be very upset —

they were crying and shaking and holding on tightly to others

as they walked into the clinic. Their demeanor differed mar-

kedly from the usually calm demeanor of patients entering

Preterm on days when many picketers but no blockaders were

A6é

present outside Preterm.” When the police finally cleared the

front door of protesters, a crowd of patients entered the build-

ing. They appeared upset; they were crying, breathing heavily,

and shaking.°

Each of the defendants before us participated in the occupa-

tion of a portion of the medical area of a clinic. We recite one

typical example, in which the defendants Brogan and O’Shea

participated on January 17, 1991, at Womancare of New Bed-

ford. The doors to the medical area of the clinic were kept

locked. A woman who pretended to be a patient was able by

a ruse to have the doors unlocked, and fifteen to twenty people

rushed into the medical area of the clinic, dragging a protesting

clinic employee along with them where she was pushed up

against a wall. One group of invaders sat with their backs to

each other in one examining room, locked together with Kryp-

tonite bicycle locks around their necks. Another group of six

lay on the floor extending into the entrances of two other

examining rooms, locked together by a series of Kryptonite

bicycle locks around their necks. Three of these people also

wore at their ankles a modified Kryptonite bicycle lock encased

in a welded steel pipe in such a way that a locksmith found

it impossible to reach the lock until the fire department cut

the casing. No scheduled abortions were performed that day.

A patient who was in the clinic when the incident started was

extremely upset. The police ultimately removed the intruders.

1. The defendants correctly grant the Attorney General has

standing to maintain this action (see G.L. c. 12, § 11H [1992

*On August 23, another blockade occurred at Preterm in which all the appellants

except Blake participated. On this occasion, two Kryptonite locks were placed on

the outside of the rear doors of the building and four such locks were placed on

the gates to the private garage in the building. Patients whose procedures were

delayed were crying and tense when they reached the clinic. “They were concerned

for their privacy and confidentiality.”

ed.]), but argue that no other plaintiff has. We need not decide

the standing of the other plaintiffs, a question which involves

in part the right of a doctor or an abortion clinic to argue the

constitutional rights of patients.’ The trial judge made limited

findings on the question whether the clinics sustained harm in

their own right from the defendants’ conduct. If they did, they

could have standing to maintain this action on their own be-

halves. As we have said, however, the standing of the Attorney

General supports ihe maintenance of this action. We, therefore,

turn to the defendants’ substantive challenges to the judgment

entered against them.

2. The defendants’ conduct amounted to threats, intimida-

tion, and coercion within the meaning of those words in G.L.

c. 12, § 11H. The defendants grant that they sat in clinics and

in clinic doorways and thereby delayed or prevented abortions.

This, they argue, cannot establish liability under the MCRA,

because their conduct did not interfere with, or attempt to

interfere with, anyone’s rights “by threats, intimidation or

coercion.” G.L. c. 12, § 11H.

The defendants first say that their conduct was a direct

frustration of the rights of others, and that a “direct violation

of a person’s rights does not by itself involve threats, intimi-

dation, or coercion.” Longval v. Commissioner of Correction,

*The action should have been dismissed as to Rebecca Roe, a fictitious person.

See Doe v. Governor, 381 Mass. 702, 705 (1980). The plaintiffs conceded the

point at trial.

’? The Supreme Court of the United States divided evenly on this point in Singleton

v. Wulff, 428 U.S. 106, 113-118 (1976). See id. at 131 (Powell, J., dissenting).

Lower Federal courts have generally held that abortion providers have standing to

assert the rights of their patients who are not parties to the action. See, e.g., New

York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1347-1348 (2d Cir.

1989), cert. denied, 495 U.S. 947 (1990); Planned Parenthood Ass'n of Cincinnati

v. Cincinnati, 822 F.2d 1390, 1394-1396 (6th Cir. 1987).

We need not decide whether the doctor or the clinics have standing under the

law of the Commonwealth (see Slama v. Attorney Gen., 384 Mass. 620, 624-625

[1981]), or whether this question is irrelevant if they have standing under Federal

law.

404 Mass. 325, 333 (1989). See Nicholas B. v. School Comm.

of Worcester, 412 Mass. 20, 24 (1992); Layne v. Superinten-

dent, Mass. Correctional Inst., Cedar Junction, 406 Mass.

156, 158 (1989); Pheasant Ridge Assoc. Ltd. Partnership v.

Burlington, 399 Mass. 771, 781 (1987). Each of these cases

involved direct action against the plaintiff which “by itself”

(Longval, supra) did not amount to a violation of the MCRA.

If, however, direct action also includes threats against, or

intimidation or coercion of, a particular individual or individu-

als, liability under the MCRA can be established, and will be

established if such threats, intimidation, or coercion interfered

with that individual’s exercise or enjoyment of rights secured

by law. The judge correctly concluded that this case involved

more than simple direct action in denial of the rights of women

seeking abortion services.

The defendants next claim that the facts do not show an

actual or potential physical confrontation accompanied by a

threat of harm, proof of which has been an element of MCRA

claims. See Willitts v. Roman Catholic Archbishop of Boston,

411 Mass. 202, 210 (1991); Layne v. Superintendent, Mass.

Correctional Inst., Cedar Junction, supra at 158; Bally v.

Northeastern Univ., 403 Mass. 713, 719-720 (1989).* In such

circumstances a threat, intimidation, or coercion, interfering

with secured rights gives rise to a MCRA violation. There is

no doubt that the defendants’ conduct involved physical con-

frontations accompanied by threats of harm.

"The Massachusetts Civil Rights Act was enacted in response to deprivations of

secured rights by private individuals using violence or threats of violence amounting

to racial harassment. Our cases holding that the Massachusetts Civil Rights Act

was violated have involved actual or potential physical confrontations involving a

threat of harm. Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95

(1987), for example, involved potential threats to the physical safety of the audience

and symphony players. Evidence of an actual or potential physical confrontation

between two peole (i.c., clinic staff and the defendants) that has the effect of

depriving a third person (i.e., patients) of protected rights can sufficiently prove

a violation of the MCRA. See id. at 100.

‘ i i i a it il hi

This court has not adopted a comprehensive definition of

the words “threats, intimidation or coercion.” The trial judge

defined the words in terms that we accept. “Threat” in this

context involves the intentional exertics of pressure to make

another fearful or apprehensive of injury or harm. See Redgrave

v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 104 (1987)

(O’Connor, J., dissenting); Delaney v. Chief of Police of

Wareham, 27 Mass. App. Ct. 398, 409 (1989) (“acts or lan-

guage by which another is placed in fear of injury or damage”).

Cf. Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985)

(reasonable apprehension on the part of the recipient of a

criminal threat). “Intimidation” involves putting in fear for the

purpose of compelling or deterring conduct. See Redgrave v.

Boston Symphony Orchestra, Inc., supra; Delaney v. Chief of

Police of Wareham, supra (“creation of fear to compel con-

duct”). In Deas v. Dempsey, 403 Mass. 468, 471 (1988), we

quoted a definition of coercion from Webster's New Interna-

tional Dictionary at 519 (2d ed. 1959): “the application to

another of such force, either physical or moral, as to constrain

him to do against his will something he would not otherwise

have done.” See Delaney v. Chief of Police of Wareham, supra

(“the active domination of another’s will’).

In the context of this case, the judge correctly applied the

objective standard of whether a reasonable woman seeking

abortion services would be threatened, intimidated, or coerced

by the defendants’ conduct. Cf. Commonwealth v. DeVincent,

358 Mass. 592, 593 (1971) (“the threat is to be tested objec-

tively; the state of mind of the person threatened is not control-

ling”); Commonwealth v. Ditsch, supra (reasonable apprehen-

sion of criminal threats). The defendants do not challenge the

use of this standard.

Based on these principles, the judge properly concluded that

the defendants’ conduct constituted threats, intimidation, and

coercion. He made ultimate findings and drew reasonable infer-

Al0

ences that the defendants knowingly trespassed on clinic prop-

erty and intentionally used their bodies or Kryptonite bicycle

locks, or both, to prevent others physically from entering,

leaving, or using medical facilities to obtain abortions to which

they were constitutionally and lawfully entitled. Their conduct

“presented frightening, threatening and impermeable physical

obstacles to patients attempting to enter the clinics, and forced

those patients to forego their right to enter the clinics and

obtain abortion services.” “The patients reasonably perceived

the crowding of a large number of bodies in a confined area

of a medical facility as posing a risk of personal physical

harm.” “[T]he acts of trespassing and crowding into clinic

waiting rooms, conference rooms, operating rooms and med-

ical areas reasonably threatened and intimidated patients who

were there awaiting services.” “The defendants’ actions were

specifically designed to dissuade the patients from seeking the

immediate care and treatment to which they were constitution-

ally entitled.” The judge ruled properly that the defendants’

conduct “constitutes the application of physical force to const-

rain the patients and staff of the plaintiff clinics from receiving

and providing abortion services. Such conduct is coercive

within the meaning of MCRA. The Court further finds that

such conduct constitutes ‘an actual or potential physical con-

frontation accompanied by the threat of harm.’”

“These actions were threatening, intimidating and coercive

to patients who sought to enter and use the clinics’ facilities.

The defendants’ physical confrontation of clinic patients and

staff on numerous occasions in cities and towns across the

Commonwealth, even where no violence was involved, was

designed, intended and highly likely to instill fear and concern

for personal safety in a reasonable person seeking abortion ser-

vices.” ° In these circumstances, the judge was warranted in

* By contrast, the Court finds and concludes that lecturing, counselling, picketing,

signing and praying at or near the clinics by certain defendants and their supporters,

All

finding, and was correct in ruling, that a reasonable woman

seeking abortion services would be made fearful and apprehen-

sive, and would feel pressured, by the defendants’ conduct so

that she would desist from seeking those services while that

conduct continued.

3. The defendants claim error in the rejection of their various

attempts to identify and then depose the patients with whose

rights they had admittedly interfered. The defendants assert

that they were entitled to have a chance to rebut the plaintiffs’

case by offering testimony from patients whose scheduled pro-

cedures at blockaded clinics were delayed or postponed. The

defendants’ purpose was to show that the delays were not the

result of threats, intimidation, or coercion perceived by the

patients, but rather were the result of the reality that the clinics

were effectively closed by the blockades.

As we have already noted, the standard is whether a reason-

able woman would have felt threatened, intimidated, or coerced

by the defendants’ conduct. Therefore, unlike a criminal case

in which proof of a victim’s state of mind may be indispensable

in making the prosecution’s case (see, e.g., Commonwealth

v. Chalifoux, 362 Mass. 811, 816 [1973]), testimony concern-

ing the states of mind of specific women who were unable to

obtain abortions as planned was not essential to the plaintiffs’

proof. We are not concerned here with the rights of a criminal

defendant, but only with a civil action for an injunction with

no claim by specific women for the award of damages. Because

the Commonwealth undertook to prove its case through nonpa-

tient witnesses who were present at the protests, no patient

where the patients’ access to the clinics was not obstructed or precluded, did not

constitute threats, intimidation or coercion of the clinics’ patients. So long as the

defendants remain on public property and do not create physical barriers or promote

physical confrontation or physical contact, then their activities cannot reasonably

be perceived as threatening. intimidating or coercive in violation of MCRA.”

lage a ee en ial

Al2

whose rights were allegedly interfered with testified. The denial

before and during trial of attempts to identify such persons,

therefore, did not impede the defendants’ cross-examination

of the plaintiffs’ witnesses. On the other hand, any evidence

that women who were unable to obtain abortions as scheduled

did not feel threatened, intimidated, or coerced by the defend-

ants’ conduct would be relevant to the issue of the reaction of

a reasonable woman in the circumstances. How actual partici-

pants responded to events could be a guide to how a reasonable

person would react in the same circumstances.'° Cf. Common-

wealth v. Matchett, 386 Mass. 492, 500-501 (1982).

Although the defendants’ relevancy contention is theoreti-

cally sound, in the circumstances of this case it lacks practical

plausibility. The number of trespasses, the scores of scheduled

abortions that were impeded, the physical intrusiveness of the

blockaders, and the evidence of the reactions of patients and

clinic personnel make it unlikely that the defendants would

have discovered evidence from these women, whose lives they

disrupted, that would have led the trial judge to factual conclu-

sions other than those he reached. In other words, if there had

been error on this issue, it would have created no reasonable

risk that nondisclosure prejudiced the defendants. Cf. Com-

Moreover, as a matter of discovery, the range of permissible inquiry is broad.

See Mass. R. Civ. P. 26(b), 365 Mass. 772 (1974); Hickman v. Taylor, 329 U.S.

495, 507 (1947), construing a cognate rule of Federal procedure.

None of the appellants, however, sought by pretrial discovery to learn the iden-

tities of the women who were affected by their conduct. They rely on a discovery

request and an attempt to obtain a court order enforcing discovery from certain

clinics filed by another defendant. No enforcement order was sought against the

Attorney General who probably did not have any knowledge of which patients

were affected by the defendants’ conduct.

The defendants were thwarted in obtaining the same information by subpoena

at trial. Among the facts agreed to by the Attorney General, the other plaintiffs,

and the defendants in a joint pretrial memorandum was that: “Defendants in discov-

ery have sought the identities of women who were scheduled to receive services

at the clinics on the days in question and plaintiffs have declined to produce them.”

We shall assume in the defendants’ favor that all aspects of their argument concern-

ing the denial of information sought is before us.

Al3

monwealth v. Bishop, 416 Mass. 169, 181 (1993), citing Penn-

sylvania v. Ritchie, 480 U.S. 39, 57 (1987) (“[E]vidence is

material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the pro-

ceeding would have been different. A ‘reasonable probability’

is a probability sufficient to undermine confidence in the out-

come’’).

It was, in any event, within the judge’s discretion whether

to grant or deny the defendants’ attempts to learn, by pretrial

order and subpoena, the identities of the numerous women

with whose rights they had interfered. Because no such woman

testified at trial, the plaintiffs assumed the task of proving

threats, intimidation, and coercion without testimony from the

women concerning their states of mind.

The intrusion into the privacy rights of these women would

have been substantial. The allowance of disclosure in cases

such as this could have a discouraging impact on the bringing

of actions to enforce rights under the MCRA and on a woman’s

exercise of her constitutional right to an abortion. See Planned

Parenthood of Southeastern Pa. v. Casey, 112 S.Ct. 2791,

2829-2830 (1992) (disclosure through spousal notification in-

valid as an undue burden that “will operate as a substantial

obstacle to a woman’s choice to undergo an abortion”);

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747, 766 (1986) (“A woman and her

physician will necessarily be more reluctant to choose an abor-

tion if there exists a possibility that her decision and her identity

will become known publicly”), overruled on other grounds by

Planned Parenthood v. Casey, supra at 2823; Commonwealth

v. Collett, 387 Mass. 424, 428 (1982) (“If it becomes known

that confidences are violated, other people may be reluctant’).

Considering the likelihood that the defendants would obtain

no evidence materially beneficial to them from women whose

lives they intentionally and admittedly disrupted and further

Al4

considering that disclosure of the identity of these women

would intrude into their privacy on a matter of constitutional

right,'' we conclude that the trial court did not abuse its discre-

tion in denying disclosure of the identities of the women af-

fected by the defendants’ conduct.'”

We add an observation, not essential to our conclusion on

this issue, but supportive of it. The Attorney General, as a

plaintiff in this action, represents the public interest in guarding

against future violations of the MCRA. The Legislature has

given him special standing to pursue injunctive relief in cases

such as this. G.L. c. 12, § 11H. This action is brought solely

to protect against future unlawful conduct that would be harm-

ful to persons not currently identifiable. In such a case, the

fact that the defendants’ unlawful conduct if repeated would

cause a reasonable woman in the circumstances to feel

threatened, intimidated, or coerced requires prospective relief

in the public interest."

'' The constitutional right of privacy concerns a person’s interest both in avoiding

disclosure of personal matters and in independence in making certain kinds of

important decisions. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Rejecting

a claim that a New York law threatened these interests because it required the

confidential filing and computer storage of information concerning the use of certain

prescription drugs, the Court labeled as remote the possibility that judges would

fail to protect attempts at unwarranted disclosures for evidentiary purposes. /d. at

601-602. The trial judge fulfilled the Supreme Court's expectations.

'? For the same reasons, rejection of defendants’ discovery attempts did not deny

them due process of law.

We need not reach the question whether affected women who bring an action

have a constitutional right to have their identities (and the fact that they had been

pregnant and decided to obtain an abortion) kept in confidence in an injunction

case like this. If this were an action seeking relief for harm done to an individual

plaintiff or to a class of plaintiffs, the defendants’ entitlement to information about

those individuals would be quite different from their entitlement here. See Western

Elec. Co. v. Stern, 544 F.2d 1196, 1199 (3d Cir. 1976); National Org. for Women

v. Sperry Rand Corp., 88 F.R.D. 272, 274-275 (D. Conn. 1980).

The fact that the Attorney General was given standing to represent the public

interest in bringing a suit shows a desire to encourage compliance with the law in

situations where individual plaintiffs are unlikely to come forward because of a

perceived stigma associated with the activity of seeking abortion services, because

the duration of their involvement with the issue is transient, or because they cannot

Pe eT

Al5

4. The defendants claim that a portion of the amended per-

manent injunction is constitutionally impermissible.'* Their

argument is directed to clause (c) of the injunction which was

not included in the preliminary injunction that this court con-

sidered in Planned Parenthood League of Mass., Inc. v. Op-

eration Rescue, 406 Mass. 701 (1990).'* Clause (c) enjoins

the defendants, individually and collectively, from “directing,

instructing, conspiring with and/or [sic] aiding or abetting di-

rectly or indirectly any person, persons, groups Or organiza-

tions who engage in any of the acts described in paragraphs

(a) and (b) above.” '°

The defendants focus their argument on the words “aiding

or abetting directly or indirectly any person . . . [or] groups

_ who engage in any of the acts described.” They claim

that the injunction improperly refers to “aiding or abetting”

(emphasis added) rather than conjunctively to both; that the

prohibition of “indirect” aiding or abetting is a “very vague

notion”; that the reference to aiding or abetting “groups” invites

guilt by association; and that the prohibition against aiding or

anticipate that this is an issue that will affect them in the future. Respecting the

judge’s decision to proceed without attempting to compel an appearance by patients

as witnesses and allowing the injunction to stand is consistent with the outline of

the MCRA and the Attorney General's role under it.

‘4 We consider this point even though the defendants did not raise it in the triai

court. The defendants do not dispute the plaintiffs’ assertion that the defendants

had opportunities to raise this challenge and did not do so.

'SIn the earlier case, the defendants argued unsuccessfully that the preliminary

injunction violated their First Amendment rights because it (a) was impermissibly

vague, (b) was overbroad because it prohibits constitutionally protected conduct,

and (c) imposed an improper prior restraint on the defendants’ right of free expres-

sion. Planned Parenthood League of Mass., Inc. v. Operation Rescue, supra at

714-717.

‘*Clause (a) permanently enjoined trespassing, blocking, or obstructing access

to or from any facility in the Commonwealth which provides abortion counseling

or services. Clause (b) permanently enjoined physical restraining or obstructing or

committing acts of force or violence against persons entering, leaving, or working

at or seeking services from any such facility.

Al6

abetting blockading,'’ rather than against criminal activity it-

self, is vague.'*

The complete answer to the defendants’ claims is that clause

(c), using the words “aiding or abetting,” is modeled on tradi-

tional concepts of accessory liability which limit the scope of

the injunction and identify those acts that are prohibited. See

Kyte v. Philip Morris Inc., 408 Mass. 162, 168-169 (1990)

(aiding and abetting require proof that the defendant knew of

its substantial, supporting role in an unlawful enterprise). Com-

monwealth v. Sylvester, 400 Mass. 334, 339 & n.6 (1987)

(acquiescence and presence alone not enough). Any violator

of the prohibition against aiding or abetting in clause (c) must

share the mental state of the principal violator. See Common-

wealth v. Richards, 363 Mass. 299, 307-308 (1973). Cf. Com-

monwealth v. Adams, 416 Mass. 558, 565 (1993). Because

intentional conduct is the measure of a violation of the MCRA

(see Deas v. Dempsey, 403 Mass. 468, 471 [1988]; Redgrave

v. Boston Symphony Orchestra, Inc. , 399 Mass. 93, 99 [1987])

and of clauses (a) and (b) of the injunction, proof of a violation

of the “aiding or abetting” prohibition of clause (c) will require

a showing of a defendant’s intention to assist intentional con-

duct violative of clause (a) or clause (b), or both.

5. With the exception that the judgment should be vacated

as to Rebecca Roe and the action dismissed as to her (see note

6 above), the amended permanent injunction, entered on Oc-

tober 28, 1991, is affirmed as applied to the defendants.

So ordered.

"The injunction does not use the word “blockading.”

The defendants cite for support two loyalty oath cases, in which the phrase

“aid or abet” does not appear. See Baggett v. Bullitt, 377 U.S. 360 (1964); Cramp

v. Board of Pub. Instruction of Orange County, 368 U.S. 278 (1961). They also

rely on NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), briefly suggest-

ing that clause (c) presents a First Amendment overbreadth problem. It is in this

latter respect alone that the defendants may assert the rights of others who might

be affected by the injunction. See Commonwealth v. Bohmer, 374 Mass. 368, 371

n.6 (1978).

Al7

O’Connor, J. (dissenting, with whom NOLAN and LyNCcH,

JJ., join). The defendant organizations and individuals and

“their officers, agents, servants, employees and those persons

in active concert or participation with them who receive actual

notice of this Order, either orally or by receipt of a copy

thereof, are permanently enjoined, individually and collec-

tively, from:

“a. trespassing on, blocking or in any way obstructing ac-

cess (either ingress or egress) to any facility in the

Commonwealth which provides abortion counselling

or services; or

“b. physically restraining or obstructing or committing

any acts of force or violence against persons entering,

leaving, working at or seeking to obtain services from

any facility in the Commonwealth which provides

abortion counselling or services; or

“c. directing, instructing, conspiring with and/or aiding

or abetting directly or indirectly any person, persons,

groups or organizations who engage in any of the acts

described in paragraphs (a) and (b) above.”

In my view, clauses (a) and (c) are constitutionally overbroad

and should be vacated. In my dissent in Planned Parenthood

League of Massachusetts, Inc. v. Operation Rescue, 406 Mass.

701 (1990) (Planned Parenthood I), | presented my argument

that clause (a) of the preliminary injunction at issue in that

case was overbroad. My view has not changed. Therefore,

because clause (a) of the permanent injunction at issue in this

case is substantially the same as clause (a) of the preliminary

injunction at issue in Planned Parenthood I, | dissent in the

present case.

Als

No worthwhile purpose would be served by a full repetition

here of the views expressed in the earlier dissent. Essentially,

my position was and is that an injunction against the defendants

and others “in active concert or participation with them” from

“trespassing on, blocking, or in any way obstructing access”

(emphasis added) to abortion facilities, is overbroad because

“reasonable persons, wishing to express their views about the

morality of abortion and whether abortion should be legal,

[cannot] be confident that they would not violate that injunction

by joining others on public ways adjacent to a clinic to picket,

pray, chant, and exhort others to accept their viewpoint. The

injunction expressly t. “bids not only trespassing and blocking,

but also ‘obstructing’ ingress or egress in any way. It cannot

reasonably be said that the prohibition against obstruction [in

any way] adds nothing to the prohibition against trespassing

and blocking[, both of which terms connote physical interfer-

ence]. Such a result can be reached only by reading words out

of the injunction. The injunction must fairly be construed as

prohibiting the hindrance of access to clinics by nonphysical

confrontation on public ways as well as the physical block[ing]

of entranceways.” Planned Parenthood I, supra at 721-722

(O’Connor, J., dissenting). Therefore, clause (a) and clause

(c), which incorporates clause (a), impermissibly chill, even

if they are not intended to prohibit, conduct protected by the

First Amendment to the United States Constitution.

Al9

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

CIVIL ACTION

NO. 89-2487-F

PLANNED PARENTHOOD LEAGUE

OF MASSACHUSETTS, INC., ET AL.,

Plaintiffs,

BARRY ADLER, p/B/aA GYNECARE,

Plaintiff-Intervenor,

and

COMMONWEALTH OF MASSACHUSETTS

By Its ATTORNEY GENERAL,

Plaintiff-Intervenor,

Vv.

OPERATION RESCUE, ET AL.,

Defendants.

AMENDED JUDGMENT

This action came on before the Court, Peter M. Lauriat, J.,

presiding, and the issues having been duly heard, and findings

of fact and rulings of law having been duly rendered, it is

hereby ORDERED, ADJUDGED and DECREED that:

1. The defendants’ motions for a directed finding in their

favor, filed at the conclusion of the plaintiffs’ case-in-chief

and renewed at the conclusion of the defendants’ case, are each

DENIED;

A20

2. Judgment shall enter in favor of plaintiffs Planned Parent-

hood of Massachusetts, Inc., Preterm, Inc., Repro Associates,

Inc., Crittenton Hastings House, Stanton P. Goldstein, M.D.,

Rebecca Roe, plaintiff-intervenor Barry Adler, d/b/a Gyne-

care, and plaintiff-intervenor Commonwealth of Massachusetts

against the defendants Operation Rescue: Boston, Pro Life

Action Network of Arlington, Barbara Bell, Timothy Biggins,

Kevin Blake, Timothy Brigham, Sean Brogan, Rachel Cann,

Shirley Clifton, Sean Corrigan, William Cotter, Claire

Croghan, Robert Delery, Denise Duda, James Dudley, Robert

Filos, Darroline Firlit, Francis Haggerty, Bruce Hendon, Law-

rence Howe, Mary Kelliher, Michelle LaPlume, Joseph Man-

ning, Peter Marleau, Jean Marshall, John D. McCarthy, Jr.,

Richard McCarthy, Anne McNamara, Bruce Murch, Adeline

Murray, James Myette, Mortimer O’Shea, Andrew Olsson,

Brian Phaneuf, Fred Pulsifer, Philip St. Jean, Russell Saulnier,

Andrew Singer, Jr., Robert Souza and Catherine Wommack

on the plaintiffs’ Joint Amended Complaint for violations of

the Massachusetts Civil Rights Act, General Laws c. 12,

$§ 11H-J;

3. The defendants Operation Rescue: Boston, Pro Life Ac-

tion Network of Arlington, Barbara Bell, Timothy Biggins,

Kevin Blake, Timothy Brigham, Sean Brogan, Rachel Cann,

Shirley Clifton, Sean Corrigan, William Cotter, Claire

Croghan, Robert Delery, Denise Duda, James Dudley, Robert

Filos, Darroline Firlit, Francis Haggerty, Bruce Hendon, Law-

rence Howe, Mary Kelliher, Michelle LaPlume, Joseph Man-

ning, Peter Marleau, Jean Marshall, John D. McCarthy, Jr.,

Richard McCarthy, Anne McNamara, Bruce Murch, Adeline

Murray, James Myette, Mortimer O’Shea, Andrew Olsson,

Brian Phaneuf, Fred Pulsifer, Philip St. Jean, Russell Saulnier,

Andrew Singer, Jr., Robert Souza and Catherine Wommack,

their officers, agents, servants, employees and those persons in

A21

active concert or participation with them who receive actual

notice of this paragraph of this Order, either orally or by receipt

of a copy thereof, are permanently enjoined, individually and

collectively, from:

a. trespassing on, blocking or in any way obstructing ac-

cess (either ingress or egress) to any facility in the

Commonwealth which provides abortion counselling

or services; or

b. physically restraining or obstructing or committing any

acts of force or violence against persons entering, leav-

ing, working at or seeking to obtain services from any

facility in the Commonwealth which provides abortion

counselling or services; or

c. directing, instructing, conspiring with and/or aiding or

abetting directly or indirectly any person, persons,

groups or organizations who engage in any of the acts

described in paragraphs (a) and (b) above.

Pursuant to General Laws, c. 12, §§ 11H and 11J, VIOLA-

TION OF THIS ORDER IS A CRIMINAL OFFENSE;

4. The defendants Robert Delery and Barbara Bell, their

agents, servants, employees and those persons in active concert

or participation with them who receive actual notice of this

Order, are permanently enjoined from:

a. representing to anyone, orally or in writing, that he or

she is acting as an escort for, or is in any way affiliated

with the Planned Parenthood Clinic of Greater Boston,

located at 1031 Beacon Street, Brookline, Massachu-

setts; and

A22

b. wearing an apron, pinney or other identification signi-

fying that he or she is an escort for, or is in any way af-

filiated with the Planned Parenthood Clinic of Greater

Boston, located at 1031 Beacon Street, Brookline,

Massachusetts.

5. The plaintiffs’ Joint Amended Complaint against defend-

ant George Duda is DISMISSED.

6. The claims of the plaintiffs League of Women Voters of

Massachusetts, Inc., Massachusetts National Organization for

Women, Mass. Choice and Religious Coalition for Abortion

Rights are DISMISSED; and

7. The plaintiffs’ claims against the defendants Constance

Smith, Patricia Anthony, Paul Baldassari, Joseph Beard, Gre-

gory Benoit, Kenneth Berthiaume, Peter F. Biggins, Fran Carl,

William Clark, Paul Colbath, Anthony Doherty, Leslie Ducott,

Timothy Enos, Kenneth Evans, Harriet Fremont-Smith, War-

ren Goddard, Timothy Hicks, William Kenney, Eric Knowles,

Sharon Lach, Albert Lanzo, Patricia Leonard, Edward Long,

Sandra Logue, Frank Macey, Russell Marinich, Mario Martin,

James McClymonds, Judith Morse, Philip O’Connell, Adeline

Parisi, Frances Pizzelli, Jean Proia, Donald Putnam, Richard

Regan, Scott Richardson, John Riordan, Mark Smith, Irma

Sparling, Michael Trainor, and Kevin Turenne are DISMIS-

SED WITHOUT PREJUDICE.

/s/

Peter M. Lauriat

Justice of the Superior Court

‘DATED: October 28, 1991.

A23

APPENDIX C

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT

CIVIL ACTION

NO. 89-2487-F

PLANNED PARENTHOOD LEAGUE

OF MASSACHUSETTS, INC., ET AL.,

Plaintiffs,

BARRY ADLER, p/B/A GYNECARE,

Plaintiff-Intervenor,

and

COMMONWEALTH OF MASSACHUSETTS

By Its ATTORNEY GENERAL,

Plaintiff-Intervenor,

Vv.

OPERATION RESCUE, ET AL.,

Defendants.

AMENDED PERMANENT JUDGMENT

The defendants Operation Rescue: Boston, Pro Life Action

Network of Arlington, Barbara Bell, Timothy Biggins, Kevin

Blake, Timothy Brigham, Sean Brogan, Rachel Cann, Shirley

Clifton, Sean Corrigan, William Cotter, Claire Croghan,

Robert Delery, Denise Duda, James Dudley, Robert Filos,

Darroline Firlit, Francis Haggerty, Bruce Hendon, Lawrence

Howe, Mary Kelliher, Michelle LaPlume, Joseph Manning,

Peter Marleau, Jean Marshall, John D. McCarthy, Jr., Richard

McCarthy, Anne McNamara, Bruce Murch, Adeline Murray,

James Myette, Mortimer O’Shea, Andrew Olsson, Brian

Te Oe ee Mee Ra MERE TS Oe ey ee a ili

ROME TORT

ak i lat ati

ke.

A24

Phaneuf, Fred Pulsifer, Philip St. Jean, Russell Saulnier, An-

drew Singer, Jr., Robert Souza and Catherine Wommack, their

officers, agents, servants, employees and those persons in

active concert or participation with them who receive actual

notice of this Order, either orally or by receipt of a copy

thereof, are permanently enjoined, individually and collec-

tively, from:

a. trespassing on, blocking or in any way obstructing

access (either ingress or egress) to any facility in the

Commonwealth which provides abortion counselling

or services; or

b. physically restraining or obstructing or committing any

acts of force or violence against persons entering, leav-

ing, working at or seeking to obtain services from any

facility in the Commonwealth which provides abortion

counselling or services; or

c. directing, instructing, conspiring with and/or aiding or

abetting directly or indirectly any person, persons,

groups or organizations who engage in any of the acts

described in paragraphs (a) and (b) above.

Pursuant to General Laws c. 12, §§ 11H and 11J, VIOLA-

TION OF THIS ORDER IS A CRIMINAL OFFENSE.

/s/

Peter M. Lauriat

Justice of the Superior Court

Dated: October 28, 1991.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.