Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue

• Decision Date: 22 February 1990
• Parties: PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC. et al. 1 v. OPERATION RESCUE et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1361

550 N.E.2d 1361

406 Mass. 701

PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC. et al.¹ v. OPERATION RESCUE et al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 9, 1989.

Decided Feb. 22, 1990.

John H. Henn (Maria Del Monaco, Boston, with him) for plaintiffs.

Francis H. Fox (Robin A. Driskel, Boston and Ann M. Cushing with him) for defendants.

Thomas M. Sobol and Marvin N. Geller, Boston, for American Jewish Congress, amicus curiae, submitted a brief.

Marjorie Heins and John Reinstein, for Civ. Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Judith E. Beals, Ruth A. Bourquin and Sarah Wunsch, Asst. Attys. Gen., for Atty. Gen., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

This case comes to us following an order of a single justice of this court vacating a preliminary injunction issued against the defendants. The injunction required the defendants, various unincorporated associations and individuals, to refrain from trespassing on, or obstructing access to, offices or clinics of the plaintiffs at which abortion, counseling, and family planning services are provided. For the reasons stated, we order that the injunction be reinstated. ³

We note the following facts drawn from the record before the motion judge in the Superior Court at the time the injunction was issued. On April 19, 1989, the plaintiffs brought a class action on behalf of themselves and those who might seek to obtain services at the plaintiffs' clinics (clinics). The plaintiffs charged the defendants with eight counts of illegal activity arising out of protests at the clinics, including violations of the Massachusetts Civil Rights Act, intentional infliction of emotional distress, intentional interference with prospective contractual relations, invasion of privacy, false imprisonment, trespass, nuisance, and conspiracy. The plaintiffs' verified complaint sought immediate injunctive relief to "prevent defendants and those acting in concert with them from ... blockad[ing] family planning clinics in Massachusetts and threaten[ing], intimidat[ing] and coerc[ing] the clinics' patients and staff."

In support of their request for a preliminary injunction, the plaintiffs submitted the affidavits of fourteen eyewitnesses to protests at the clinics, newspaper articles describing these protests, local police arrest records of the days when protests were held, informational literature published by the organizational defendants regarding such protests, and several other documents. The plaintiffs' complaint stated that the purpose of the organizational defendants was to "organize and coordinate blockades and disruptions of abortion and family planning facilities," and alleged that a majority of the individual defendants had been "arrested at least twice in Massachusetts in conjunction with [his or her] anti-abortion blockades and activities." Police records from the Brookline and Worcester police departments showed that all the individual defendants had been arrested at least twice on dates corresponding to protests held at the clinics.

The protests were described in the affidavits, signed by affiants who claimed to be eyewitnesses to the events described. These affiants stated that the defendants blocked entranceways and lobbies of the clinics by lying on the ground, thereby preventing patients and staff from entering or leaving the clinic. At one protest, one defendant named in the complaint chained herself to a clinic door with a bicycle lock, and, at another protest, one demonstrator chained himself to a toilet in a clinic. Local police attempted to clear the entranceways but were not always successful. As the police moved people away from the entranceways, other protesters would move to fill the vacancy. Protesters who had been removed by the police often would return to their original positions upon their release. The defendants also sang and chanted during the protests and engaged in "sidewalk counseling" in an effort to dissuade people from attempting to enter the clinics. Similar descriptions of protest activity appeared in the newspaper articles submitted by the plaintiffs. One eyewitness stated that she was unable to obtain an abortion on the day for which she had been scheduled, due to the protests.

The organizational defendants' literature refers to the protests as "rescues," which are described as attempts to shut down clinics "by peacefully, but physically blockading abortion [clinics] with [protesters'] bodies" (emphasis in original). A newsletter published by one organizational defendant provides the following description of a protest at a Massachusetts clinic: "Sending about 75 rescuers as a decoy to [one clinic] ..., [the protesters] were able to draw the police away from the entrance to [another clinic]. When the entrance was clear, about 40 rescuers who had waited nearby simply walked in and took up their positions. Another 200, including those who had allowed themselves to be dragged from the [first clinic's] entrance, joined the rescue, blocking the outside doors."

In response to the plaintiffs' complaint, thirty-nine of the sixty-nine defendants filed answers prior to the issuance of the injunction. These defendants declined to respond to specific allegations of blocking clinic entranceways or trespassing on clinic property, invoking their rights under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. ⁴ Several other defendants filed affidavits in opposition to the motion for injunctive relief. One such affidavit stated that the goal of "Operation Rescue: Boston" was to "stop abortion by non-violent direct action such as sidewalk counselling, picketing and rescues." Another affidavit, in describing the protests, stated: "We use our bodies in the only way possible in this struggle. We lay upon the ground at which time it is the decision of the authorities to remove us or not by whatever means they chose [sic ]."

On July 24, 1989, after a hearing and consideration of the arguments of counsel and the affidavits and memoranda filed in the case, the judge granted the plaintiffs' motion for a preliminary injunction. ⁵ Forty of the sixty-nine defendants petitioned a single justice of the Appeals Court, seeking relief from the injunction pursuant to G.L. c. 231, § 118, first par. (1988 ed.). A single justice in the Appeals Court denied the petition. These same defendants then brought a petition for relief before a single justice of this court (single justice) under G.L. c. 211, § 3 (1988 ed.). On August 16, 1989, the single justice suspended the preliminary injunction "until the final disposition of this case or until further order of this court." The plaintiffs then moved the single justice to report his decision to the full court. This motion was denied on August 22, 1989. At the time of oral argument before this court, the case had not yet come to trial.

The plaintiffs currently appeal the decision of the single justice to the full court and also directly petition the full court for relief pursuant to G.L. c. 211, § 3. For the purposes of this case, the plaintiffs' appeal and their c. 211, § 3, petition to the full court have been consolidated, and, hence, we treat them as a single action.

1. Availability of G.L. c. 211, § 3 Review.

General Laws c. 211, § 3, confers on this court the power of "general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided." This discretionary power of review has been recognized as "extraordinary," and will be exercised only in "the most exceptional circumstances." Costarelli v. Commonwealth, 374 Mass. 677, 679, 373 N.E.2d 1183 (1978). We will not allow resort to c. 211, § 3, "merely as a substitute for normal appellate review." Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010, 446 N.E.2d 712 (1983), quoting Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977). Parties seeking review under c. 211, § 3, must "demonstrate both a substantial claim of violation of [their] substantive rights and error that cannot be remedied under the ordinary review process." Dunbrack v. Commonwealth, 398 Mass. 502, 504, 498 N.E.2d 1056 (1986). Parents of Two Minors v. Bristol Div. of the Juvenile Court Dep't, 397 Mass. 846, 849, 494 N.E.2d 1306 (1986). The plaintiffs' petition to this court satisfies both of the requirements of this exacting test.

First, the plaintiffs allege that the defendants are engaged in a systematic attempt to deprive women of the opportunity to obtain abortion, counseling, or family planning services. At the very least, the right to choose to terminate a pregnancy by abortion has been recognized as a substantive right under both the Federal and State Constitutions. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981). ⁶ In support of their claims, the plaintiffs have produced voluminous documentary evidence and eyewitness affidavits describing the defendants' obstruction of clinics which provide abortion services, and alleging at least one instance in which a woman could not obtain an abortion due to the defendants' protests. The defendants, in their brief to this court, have made no attempt to deny the specific allegation that they sought, by way of their protests, to obstruct the clinics so that no abortions could be performed. In light of the record below, we conclude that the plaintiffs have demonstrated "a substantial claim of violation of [their] substantive [rights]." Dunbrack v. Commonwealth, supra 398 Mass. at 504, 498 N.E.2d 1056.

The plaintiffs have also shown that, absent relief under c. 211, § 3, they may suffer an "error that cannot be remedied under the ordinary...