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

No. 94-52 ORFce

In the

Supreme Court of the United States

OctToser Term, 1994

KEVIN BLAKE, SEAN BROGAN, MARY KELLIHER,

JOHN D. McCARTHY AND MORTIMER O’SHEA,

PETITIONERS,

v.

PLANNED PARENTHOOD LEAGUE OF

MASSACHUSETTS, INC., ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

Joun H. HENN

Counsel of Record

Teresa A. MARTLAND

Fo.ey, Hoac & ELIoT

One Post Office Square

Boston, MA 02109

(617) 482-1390

Counsel for Certain Respondents

Blanchard Press, Inc., Boston, Mass — Law Printers (617) 426-6690

BEST AVAILABLE COPY r

QUESTIONS PRESENTED FOR REVIEW

1. Does the federal due process clause require that persons

who blockade abortion clinics and are enjoined by state courts

from doing so in the future be given the names and addresses

of the clinics’ abortion patients, and be allowed to depose

them and call them to testify at trial?

2. Does a permanent injunction, which bars Petitioners

from “trespassing on, blocking or in any way obstructing

access” to abortion facilities, violate the First Amendment?

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ......... i

pe ae gy 6 gy) iv

I yoo oo css cc cece cv eccscccce 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

REE ES en 2

pameemenee See fee CASE... wk... ccc e cc case 3

REASONS FOR DENYING THE WRIT............ 6

I. Because Peritioners Were Nor ENTITLED To

DeposE Or SuBPOENA THE CLINICS’ WoMEN

PATIENTS For ABORTION SERVICES, THEIR CLAIM

Or A Fair TriAL/DvuE Process VIOLATION Is

RE EO SE a eee a 7

A. Petitioner’s Fair Trial/Due Process Argu-

ment Ignores The Standing Under State

Law Of The Respondents, Especially The

Attorney General, To Bring This State

EES re 8

B. Respondents Proved Violations Of The

MCRA By Evidence As To Petitioners’

EE re ee 9

1. Testimony of women patients was

not needed to prove threats, intimi-

dation or coercion............... )

2. Testimony of women patients could

not provide a defense ............ 10

C. The Information Sought By Defendants Is

Constitutionally Protected ............ 13

II. THe [njunction Does Not VIOLATE THE First

SNS 00 rh uy'vc is se eeentcccvcevas 14

ne ay occ yc ccs sb cclesdveecuusacs 16

iv

TABLE OF AUTHORITIES

CASES

Page

Bellotti v. Baird, 443 U.S. 622 (1979)............ 8, 13

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........ 14

Commonwealth v. Brogan, 612 N.E.2d 656 (Mass. 1993) 14

Commonwealth v. Cotter, 612 N.E.2d 1145 (Mass.

MS ae ese a as ere lo ee na 14

Cox v. Louisiana, 379 U.S. 536 (1965).............. 16

Doe v. Botton, 410 U.S. 170 GGra) ............0 60 8

Madsen v. Women’s Health Center, Inc., ___._ U.S.

, 62 U.S.L.W. 4686 (June 30, 1994).......... 15

National Organization for Women v. Sperry Rand

Corp., 88 F.R.D. 272 (D. Conn. 1980) ....... 12, 13

National Organization for Women, Inc. v. Scheidler,

mie Si Si eke Be, 2). | ee 15

New York v. Ferber, 458 U.S. 747 (1982)........... 15

Planned Parenthood League of Mass. v. Blake, 631

ee | er eee passim

Planned Parenthood League of Mass. v. Operation

Rescue, 550 N.E.2d 1361 (Mass. 1990)............ 6

Planned Parenthood of Central Missouri v. Danforth,

Ge See Oe sw Fe reeks cheba ee eae 8, 13

Planned Parenthood of Southeastern Penn. v. Casey,

if See) oe a | ae 14

Singleton v. Wulff, 428 U.S. 106 (1976) ............ 8

Time, Inc. v. Hill, 385 U.S. 374 (1967) ............ 15

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

Es ah ware oe a owe ake eee ea 13

Whalen v. Roe, 429 U.S. 589 (1977) ............... 14

STATUTES

Massachusetts Civil Rights Act

oe ee aS ee eer passim

In the

Supreme Court of the United States

OctTosBerR TERM, 1994

No. 94-52

KEVIN BLAKE, SEAN BROGAN, MARY KELLIHER,

JOHN D. McCARTHY AND MORTIMER O’SHEA,

PETITIONERS,

v.

PLANNED PARENTHOOD LEAGUE OF

MASSACHUSETTS, INC., ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF MASSACHUSETTS

Respondents! respectfully submit this brief in opposition to

the petition for a writ of certiorari to review the judgment of

the Supreme Judicial Court of Massachusetts, Appendix A to

the petition.

' Respondents submitting this brief consist of four clinics that provide

abortions and that were blockaded, and the physician on duty at one of them:

Planned Parenthood League of Massachusetts, Inc.; Preterm, Inc.; Repro

Associates (whose corporate name is Associated Physicians, Inc.); Crittenton

Hastings House (a corporation whose full name is Crittenton Hastings House

of the Florence Crittenton League); and Stanton P. Goldstein, M.D. None

of the four corporate respondents has a parent or subsidiary.

OPINIONS BELOW

In addition to the reported opinion of the Supreme Judicial

Court, Planned Parenthood League of Massachusetts, Inc. v.

Blake, 631 N.E.2d 985 (Mass. 1994), the trial court issued a

150 page unreported decision setting forth in detail the con-

duct by Petitioners and others which led to issuance of the

permanent injunction. See Appendix to [Petitioners’] Brief in

the Supreme Judicial Court, Volume II, pp. 397-546 (here-

inafter A., Vol., p. ___).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions alleged by Petitioners to be

involved (the due process clause of the Fourteenth Amend-

ment and the speech clause of the First Amendment) are set

forth in the petition. The case was substantially decided by

the Supreme Judicial Court on the basis of state law, the Mas-

sachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws,

chap. 12, §§11H-111, which, in pertinent part, provides as

follows:

Section 11H. Whenever any person or persons ...,

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. ...

Section 11I. 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 laws

of the commonwealth, has been interfered with, or at-

3

tempted 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 sec-

ae

STATEMENT OF THE CASE

Having conducted blockades and clinic invasions that made

it physically impossible for women to exercise their constitu-

tional right to choose abortion confidentially, Petitioners

argue under a fair trial/due process theory that they were

improperly enjoined under state law from doing it again

because the state court would not allow them to find out who

the women were, depose them, and then call them as defense

witnesses at trial (to say what? that the women felt positive

about clinic entrances being blockaded and operating rooms

occupied?). This cynical tactic did not succeed in the Mas-

sachusetts Supreme Judicial Court and cannot succeed here.

The Supreme Judicial Court (“SJC”) held that the Mas-

sachusetts Attorney General had standing to sue under the

applicable state statute — the MCRA. The SJC therefore

declined to reach the issue of the standing of the abortion

clinics and physician to argue the constitutional privacy rights

of their patients (which the trial court had upheld’, but noted

that lower federal courts have generally recognized such

standing. Petition, A6-7 and n.7.

The SJC then held that the trial court had correctly inter-

preted the meaning of the statutory requirements of the

MCRA — “threats, intimidation or coercion”, and had cor-

rectly applied the objective standard of whether a “reasonable

woman seeking abortion services” would be threatened,

intimidated or coerced by Petitioners’ conduct. Petition A7-9.

Next, the Court held that the trial court properly concluded

that Petitioners conduct violated this statute, noting the trial

court’s findings that:

the defendants knowingly trespassed on clinic

property and intentionally used their bodies or Kryp-

tonite bicycle locks, or both, to prevent others physically

from entering, exiting or using medical facilities to obtain

abortions. ... Their conduct “presented frightening,

threatening and impermeable physical obstacles to

patients attempting to enter into clinics, and forced those

patients to forego their right to enter the clinics and

obtain abortion services.” “The patients reasonably per-

ceived the crowding of a large number of bodies in a con-

fined 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 medical areas reasonably threatened and

intimidated patients who were there awaiting services.”

“The defendants actions were specifically designed to dis-

suade the patients from seeking the immediate care and

treatment to which they were constitutionally entitled.”

The [trial] judge ruled properly that the [Petitioners’]

conduct “constitutes the application of physical force to

constrain the patients and staff of the plaintiffs clinics

from receiving and providing abortion services. Such

conduct is coercive within the meaning of [the] MCRA

[and] .. . 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 services.” [Peti-

tion, Al0]

Accordingly, the SJC upheld as correct the trial court’s ruling

that “a reasonable woman seeking abortion services” would

)

be made “fearful and apprehensive, and would feel pres-

sured,” by Petitioners’ conduct, so that “she would desist from

seeking those services while that conduct continued.” Id.,

All.

The SJC rejected Petitioners’ claim of error in being denied

the identities of actual women patients, noting that (i) in this

civil case under state law the applicable test was the reaction

of a hypothetical reasonable woman not a specific “victim”,

(ii) only prospective injunctive relief was sought, (iii) plaintiffs

had proved their case with non-patient witnesses (and other

evidence), (iv) Petitioners’ contention lacked “practical plausi-

bility” because there was no “reasonable risk” that Petitioners

could have discovered evidence from “women ... whose lives

they disrupted” that would have led the trial judge to different

conclusions in light of the evidence at trial (“number of

trespasses”, “scores of scheduled abortions that were

impeded”, “physical intrusiveness of the blockades”), (v) it

was within the trial court’s discretion to deny the requested

discovery, particularly given that no woman patient testified

and that the plaintiffs “assumed the task of proving” their case

without such testimony, and (vi) the intrusion into women’s

privacy rights would have been substantial. Jd., A1l2-13.

Considering the likelihood that the defendants would

obtain no evidence materially beneficial to them from

women those lives they intentionally and cdmittedly dis-

rupted and further 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 discretion in denying dis-

closure of the identities of the women affected by [Peti-

tioners’] conduct. Jd., Al3-14, emphasis added.

The SJC also noted that the Massachusetts Attorney General

(who would himself have no access to clinic patients’ names)

is given special statutory standing to sue under the MCRA,

and that the case at bar was brought solely to protect

6

“against future unlawful conduct that would be harmful to

persons not currently identifiable.” Jd., Al4. This statutory

standing permits the Attorney General to encourage compli-

ance with the law 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 anticipate that this is an issue that will affect them

in the future.” Id., Al4, n.13.?

No justice of the SJC dissented from the holding that the

trial court did not abuse its discretion in denying disclosure

of the identities of woman patients.

Finally, the SJC rejected Petitioners’ argument to it against

clause (c) of the injunction, holding that there was no error

in the use of the words “aiding or abetting’. Jd., A13-14.

Three justices dissented, largely addressing their dissent to the

separate holding in Planned Parenthood League of Mass. v.

Operation Rescue, 550 N.E.2d 1361 (Mass. 1990) (upholding

the preliminary injunction in this case) that clause (a) of the

injunction was overbroad because it could be applied to non-

physical confrontations.

REASONS FOR DENYING THE WRIT

No important issue of federal law is presented by the SJC

decision. Massachusetts law permits enjoining persons from

interfering with civil rights by threats, intimidation or coer-

cion, authorizes the Massachusetts Attorney General to seek

such an injunction, and measures whether such interference

has occurred by an objective standard of a hypothetical

reasonable person (here, a woman seeking abortion). Respon-

dents overwhelmingly proved such interference. Indeed, Peti-

tioners’ effectively admit this, as “coercion” is an independent

basis for finding such interference, and they do not challenge

2 These are the reasons customarily given for abortion clinic and physician

standing. Id., A7, n. 7 and cases cited.

7

the state court ruling that the blockades are inherently coer-

cive.? Because Respondents proved their case without calling

women abortion patients, because there is no reasonable risk

whatever that Petitioners would “have discovered evidence

from these women whose lives they [objectively] disrupted”

to counter that proof (Petition, Al2, emphasis added), and

because the trial court had discretion to order or deny dis-

closure, no important issue of federal law is presented by a

state court decision holding that there was no abuse of discre-

tion in denying disclosure.‘ Indeed, the SJC avoided creating

an important issue of federal law by recognizing that the

intrusion into the privacy rights of the woman at issue would

have been substantial had disclosure been ordered, by recog-

nizing the constitutional element of that privacy right, and

by deciding the case on the basis of interpreting state law (the

MCRA) and applying an abuse of discretion standard.

I. Because PetiTIONERS WERE Not ENTITLED To DEPosE Or

SUBPOENA THE CLINICS’ WOMEN PATIENTS For ABORTION

SERVICES, THEIR CLAIM OF A Fair TrIAL/DvE PROCEssS

VIOLATION Is MERITLESS

Petitioners were not entitled to confront in deposition or at

trial the women patients whom they previously confronted by

blockade and invasion, and their trial was neither unfair nor

a violation of due process.

* The “‘application of physical force to constrain patients and staff of

the plaintiff clinics from receiving and providing abortion services ... is

coercive within the meaning of the MCRA.’” Petition, Al0.

‘ Contrary to Petitioners’ claim (Id., 11), the SJC did not call “theoreti-

cally sound” Petitioners’ claim that woman patients “possessed critical infor-

mation.” Rather, the SJC merely made the obvious evidentiary point that

Petitioners’ “relevancy contention” was theoretically sound. Id., Al2. Due

provess does not require that every bit of conceivably relevant evidence be

discovered or admitted, still less that a party be able to seek it or offer it

without regard to the burdens imposed.

8

A. Petitioners’ Fair Trial/Due Process Argument

Ignores The Standing Under State Law Of The

Respondents, Especially The Attorney General, To

Bring This State Statutory Action

The Massachusetts Attorney General indisputably has

standing, and the Respondent abortion clinics/physician also

have standing (though this issue was not reached below), to

sue for a violation of the rights of ““any person”, as those words

are used in the MCRA. Whether the particular persons whose

rights were interfered with must in fairness be identified as

potential witnesses turns on the specifics of the particular case:

in this case, they clearly should not have been identified.

Section 11H of the MCRA, which gives the Attorney

General standing, allows him to bring an action when the

rights of “any person” are interfered with by threats, intimi-

dation or coercion. The statute does not require that the “any

person” be identified in all cases.

In addition, Section 111 of the MCRA allows the “any

person” himself or herself to bring an MCRA claim. However,

abortion clinics have standing to sue on behalf of such persons

to protect their privacy. Singleton v. Wulff, 428 U.S. 106, 117

(1976) (woman “may be chilled from [exercising right to

choose abortion] by a desire to protect the very privacy of her

decision from the publicity of a court suit”); Planned Parent-

hood of Central Missouri v. Danforth, 428 U.S. 52, 62 (1976);

Doe v. Bolton, 410 U.S. 179, 188 (1973); Bellotti v. Baird,

443 U.S. 622, 627 n.5 (1979). For the same privacy reasons

that allow third party standing, neither “fairness” nor “due

process” requires that those patients be identified if an MCRA

violation can be proved without their involvement, and if

nothing they could say (within the realm of plausibility)

would constitute a defense. There were undoubtedly some

women patients, for example, who were “deterred” from

coming to blockaded clinics because they received a telephone

call saying “don’t come. We've been blockaded”. Because the

MCRA is nonetheless violated by the blockade, the identity

9

of those women is irrelevant to plaintiffs’ proof, and irrelevant

to any legal defense.

B. Respondents Proved Violations Of The MCRA By

Evidence As To Petitioners’ Own Conduct.

It is Petitioners’ conduct in physically blocking access to and

invading and physically occupying abortion clinics that vio-

lates the MCRA.* This conduct by itself proved that Peti-

tioners: (a) interfered with women’s exercise of their constitu-

tional right to obtain abortions; and (b) did so by threats,

intimidation or coercion.

1. Testimony of women patients was not needed

to prove threats, intimidation or coercion.

Petitioners incorrectly argue that they should be “allowed

to confront the women who were allegedly seeking abortion

services to inquire ... whether she was ‘threatened’, ‘intimi-

dated’, or ‘coerced’ by [Petitioners’ actions].” Petition, 16-17.

These are, of course, the same women whom Petitioners previ-

ously “confronted” by blockading the exteriors and interiors

of the clinics where their abortions were scheduled. However,

the “crucial evidence” (Petition, 17) is not what some patient

“felt”, but whether Petitioners blockaded, whether the

blockades delayed or prevented abortions, and whether the

blockades were threatening, intimidating or coercive to a

hypothetical reasonable woman seeking an abortion.

A trial court is certainly competent to make a determination

— without the testimony of any individual women whose

rights have been interfered with — as to whether a reasonable

woman seeking an abortion or a reasonable person seeking to

provide abortion services would be threatened, intimidated

* Respondents proved nine separate occasions involving six abortion

clinincs where demonstarations “blocked entrances or physically invaded

abortion clinics {and} remained after they had been notified that

they were trespassing.” Petition, A5

10

or coerced by defendants’ conduct. Here, the SJC held that

the trial judge was “warranted in [so] finding, and was correct

in [so] ruling. ...” Petition, Al0-11. That holding raises no

federal question whatever.

2. Testimony of women patients could not pro-

vide a defense.

Similarly, the state court was correct in concluding that

provision of patient names to Petitioners would not furnish

them with a plausible defense such that patient’s privacy

rights should be overridden (and, as a practical matter, the

case dropped and the MCRA abandoned as a tool to prevent

clinic blockades). A blockade “causing abortion services to be

prevented or delayed” (Petition, 6) is per se “coercion” under

the MCRA. And it would have been clearly erroneous for the

trial judge not to have found that a reasonable woman seeking

an abortion would have been threatened or intimidated by

the blockade (especially by blockaders “Kryptonited” to each

other on the floor of an operating room).

Petitioners suggest the following inquiries that due process

somehow requires clinic blockaders to be able to ask patients

at deposition or trial before future blockades can be enjoined:

“whether a scheduled abortion was delayed because of the

woman’s reluctance to encounter marching protestors, reluc-

tance to be recognized, reluctance to have people show them

pictures or literature, reluctance to go near ... acrowd ...,

a [moral] change of mind, information from clinic personnel

or police that abortions were impossible that day ... or

[which defendants wrongly say is an exclusive alternative]

were ‘threatened,’ ‘intimidated’, or ‘coerced’ by the defen-

dants’ actions.” (Petition, 16-17.)

These inquiries, as a matter of state law (the MCRA), are

not relevant because Petitioners do not dispute that they did

blockade and invade clinics, preventing abortions. At

minimum, that conduct is “coercion” under the MCRA, and

properly enjoinable for the future under the MCRA. It is no

11

defense under the MCRA that some women may have stayed

away merely because a blockade draws a crowd, and the

press. Undoubtedly, there were patients with scheduled

appointments who turned away from a blockaded clinic

without ever getting close enough to be threatened or intimi-

dated, and some may have even been telephoned by clinic

staff and told that the clinic was blockaded shut and to stand

by for a further call to reschedule. These women were all

nonetheless coerced: the blockade physically prevented them

from gaining access to the clinic. Such coercion — as a matter

of state law — raises no federal question.

In addition, the state court found that a reasonable woman

patient would be threatened or intimidated by the prospect

of trying to force her way through the blockade (never mind

getting on an operating table in a room of “Kryptonited”

blockaders). Petition, Al0. Even if “coercion” were not in the

MCRA, Petitioners would have no defense unless it can be

imagined that a majority or sufficiently large minority of

women patients would actually have testified at trial that they

did not find the blockade threatening or intimidating so that

a judge could not find that a reasonable woman patient would

be threatened or intimidated. The likelihood of this is nil —

certainly far too low to imagine overriding the constitutional

privacy right of women to seek abortion confidentially.*° What

reasonable woman seeking an abortion, for example, would

® Petitioners’, whose blockades at times involved hundreds of supporters

either blockading, or demonstrating in support of the blockades, failed to

put on a single witness to testify that a blockade was not threatening or

intimidating. They deposed none of Respondents’ (plaintiffs) eyewitnesses.

They did not seek redacted records of clinic patient symptoms on the days

of the blockades. And they made no showing at trial that abortion patients

would say anything to assist in their defense. The most they could suggest

is the truism that some patients never got to the point of feeling threatened

or intimidated (because of their own personalities, or because they never

got close to the clinic), which did not in the least prevent the trial judge

on overwhelming evidence from finding that a reasonable woman would

have felt threatened or intimidated. This truism is, of course, irrelevant to

the independently sufficient state law ground for the injunction of “coer-

cion” under the MCRA.

12

have been willing at the blockade in New Bedford (Petition,

A6) to climb over and among the “Kryptonited” blockaders

in the hallway (whose legs protruded into the operating

rooms), disrobe in their presence, lie down on an examining

table, undergo an abortion procedure in their presence,

remain for a one hour recovery period, and then walk out

again through the same group of invaders — all without

feeling threatened or intimidated?’

Because no individual woman was a party to this lawsuit,

those cases relied upon by defendants in which a party to a

litigation was ordered to disclose the names of its members

are inapplicable. See, e.g., National Organization for Women

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

tiff ordered to disclose the names of its own members). The

court’s holding in Sperry Rand — that, by bringing the suit,

plaintiffs at least partially waived any right to privacy they

otherwise had, id., at 275, — is inapplicable to this case

because the women scheduled for abortions did not bring suit

and thus did not waive their constitutional right to privacy.*

Indeed, an action, such as here, for prospective injunctive

relief under a state civil rights statute by a state attorney

general (who could have been the sole plaintiff in this case*)

is fundamentally different from a damages case such as Sperry

Rand. And the premise of Sperry Rand — that by suing for

” The following finding by the trial judge reflects an example of a woman

patient who was obviously “coerced” under the MCRA, whom it is outlan-

dish to think would give helpful evidence to Petitioners, and whom it would

have been unthinkably cruel to force to appear at trial.

267. One patient was suffering the involuntary termination of a

wanted pregnancy and was bleeding. She was at the [clinic] to have

the non-viable fetus removed. The [clinic] staff made arrangements

for her to be taken to the Brigham and Women’s Hospital for emer-

gency treatment because the defendants’ actions prevented the proce-

dure from being performed at the [clinic] that day. (A. Vol. Il, pp.

467-8).

* Women’s constitutional right to choose abortion confidentially would

be a very weak right if it could be waived by someone else's decision to

commence a lawsuit.

* For that reason, the SJC did not address the issue of the clinics’ and

physician's standing. Petition, A6-7.

13

damages, plaintiffs waive their privacy rights — does not

apply to a public enforcement action such as this became

when the Massachusetts Attorney General intervened. The

prosecution of such an action by a state attorney general

cannot waive privacy rights of third parties, much less privacy

tights of constitutional dimension. .

Petitioners’ claim of denial of due process at trial is nothing

more than a variation on the same “discovery” argument, and

flawed for the same reasons.'° Petitioners’ were well aware

of the names of their accusers (the named plaintiffs and the

plaintiff-intervenor: the clinics and the Attorney General),

and Petitioners’ had every opportunity to cross-examine the

source of information for all evidence presented to the court

(in the case of witnesses’ testimony as to patients’ observable

physical reactions to defendants’ conduct, the source of infor-

mation was the testifying witness). Petitioners in this case

were not denied discovery on any “crucial issue,” nor were

they denied due process.!!

C. The Information Sought By Defendants Is Constitu-

tionally Protected.

Women have a constitutional right to choose abortion con-

fidentially and Petitioners’ attempts to obtain the identities of

women scheduled for abortions squarely contravenes that

right. See Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52, 80, 118 (1976); Bellotti v. Baird, 443 U.S.

'° For example, defendants’ reliance on Western Electric Co., Inc. v.

Stern, 544 F.2d 1196 (3rd Cir. 1976) is misguided for the same reasons as

is defendants’ reliance on Sperry Rand in support of its discovery arguments.

At issue in Western Electric was the discovery of the allegations of discrimi-

nation by members of the plaintiff class seeking victim-specific damages,

whereas here defendants sought the identities of women patients who were

not parties to this litigation.

'' The hollowness of Petitioners’ position is reflected in their claim that

“[d]iscovery of all relevant information is the cornerstone of our judicial

system .. .” Petition, 19 n.9. There has probably never been a case in which

“all” relevant information has been discovered. Balancing relevance against

burden is the everyday business of trial courts, and hardly of constitutional

dimension.

14

622, 644 (1979); Whalen v. Roe, 429 U.S. 589, 600 (1977)

and notes 23-25 (1977); Planned Parenthood League of Mass.

v. Operation Rescue, supra, 550 N.E.2d at 1365. See also

Planned Parenthood of Southeastern Penn. v. Casey,

U.S. , 112 S.Ct. 2791, 2832 (1992) (disclosure and

reporting of abortion-related information must “properly

respect a patient’s confidentiality and privacy” and ensure

that “the identity of each woman who has had an abortion

remains confidential’) (citations omitted). Women who visit

abortion clinics and provide confidential information do so

with the constitutionally-protected expectation that it will be

used only by clinic personnel for medical purposes and not

given to third parties, particularly those who are adamant in

their opposition to abortion.'”

Il. THe Injunction Does Not VioLtateE THE First

AMENDMENT

The permanent injunction prohibits only physical conduct

and activity: “trespassing on, blocking or in any way

obstructing access (either ingress or egress) to any facility .. .

which provides abortion counselling or services.”!* Petitioners’

challenge to these words on First Amendment overbreadth

grounds is misplaced.

The words “or in any way obstructing access” do not create

an issue of overbreadth. Broadrick v. Oklahoma, 413 U.S.

601, 615 (1973) (when a statute regulated “conduct” as

'2 The SJC noted that the trial judge “fulfilled the Supreme Court’s expec-

tations”, reflected in Whalen v. Roe, 429 U.S. 589, 599-600 (1977), that

trial judges would “protect attempts at unwarranted disclosures for eviden-

tiary purposes.” Petition, Al4, n.11. Disclosing an abortion patient's iden-

tity to an abortion clinic blockader would obviously be a “substantial

obstacle to [that] woman's exercise of the right to choose.” Planned Parent-

hood of Southern Penn. v. Casey, ___. U.S. at ___, 112 S.Ct. at 2821.

'S That injunction (in its virtually identical preliminary injunction form)

has already been applied to two of the original defendants in this case, who

violated it by physical conduct. Commonwealth v. Cotter, 612 N.E.2d 1145

(Mass. 1993), and Commonwealth v. Brogan, 612 N.E.2d 656 (Mass. 1993).

Brogan is one of the Petitioners.

a ae

15

opposed to “speech”, its “overbreadth ... must not only be

real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.”); New York v. Ferber, 458 U.S.

747, 773 (1982) (upholding state prohibition on child pornog-

raphy, and noting that Court would not “assume that the New

York courts will widen the possibly invalid reach of the statute

...”). See also National Organization of Women, Inc. v.

Scheidler, ___ U.S. ___, 114 S.Ct. 798, 807 (1994) (Souter,

concurring) (no First Amendment reason to read an economic

motive requirement into application of RICO to abortion

clinic blockaders, because no reason to prevent RICO from

applying to “acts of violence we need not fear chilling’). Peti-

tioners turn traditional rules of construction on their head by

arguing that these words “must be construed to include .. .

nonphysical confrontation.” Petition, 21. To the contrary, the

injunction should be construed to prevent, not create, a con-

stitutional issue, which means it must be construed to exclude

speech-protected activities, and this Court, at this stage, must

assume that the Massachusetts courts will adopt such a con-

struction. '*

Moveover, one can envision physical activities that would

impede or prevent clinic access that might not involve

“blocking access” (e.g., severing utilities or throwing “stink

bombs” through windows), but that would involve

“obstructing access”. If the prohibition against “obstructing

access” burdens speech at all, which Responsents do not con-

cede, it does so less than a “36 foot buffer zone around clinic

entrances and driveways” recently upheld by this Court as

“burden[ing] no more speech than necessary to accomplish the

governmental interest at stake.”. Madsen v. Women’s Health

Center, Inc., ___ U.S. ___, 62 U.S.L.W. 4686, 4690 (June

30, 1994) (Rehnquist, C.J.) (also noting, at 4690, the state’s

'* See, in the context of interpretation of legislation, New York v. Ferber,

458 U.S. 747, 768 (1982) (Court allows state court the opportunity to con-

strue a law to avoid constitutional infirmities); Time, Inc. v. Hill, 385 U.S.

374, 397 (1967) (Court assumes that state court will construe statute “to

avoid invasion of the constitutional protections of speech and press’).

16

“strong interest[s]” implicated by targeted picketing of abor-

tion clinics). See also Cox v. Louisiana, 379 U.S. 536, 555

(1965) (upholding prohibition of picketing in front of court-

house interfering with free ingress and egress).

CONCLUSION

For the foregoing reasons, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

Joun H. HENN

Counsel of Record

TERESA A. MARTLAND

Fo.tey, Hoac & ELIoT

One Post Office Square a

Boston, MA 02109 7

(617) 482-1390 |

Counsel for Certain Respondents