PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., & others [Note 1] vs. KEVIN BLAKE & others. [Note 2]

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

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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, Sections 11H & 11I [1992 ed.]). [Note 3] In April, 1990, the Attorney General was allowed to intervene in the name of the Commonwealth. 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, Sections 11H, 11I, & 11J (1992 ed.). [Note 4] In the final judgment the judge dismissed the claims of certain plaintiffs and dismissed claims against many individual defendants. The injunction

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whose entry is challenged 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 defendants' 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 "rescues," blockades or invasions of abortion clinics. They offered advice, training, and seminars to prepare participants in "rescues" for arrest, jail, and money judgments. The purpose of a "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 abortion 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

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entrance to the building, preventing the door from being opened. The defendants 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 markedly from the usually calm demeanor of patients entering Preterm on days when many picketers but no blockaders were present outside Preterm." When the police finally cleared the front door of protesters, a crowd of patients entered the building. They appeared upset; they were crying, breathing heavily, and shaking. [Note 5]

Each of the defendants before us participated in the occupation 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 Bedford. 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 Kryptonite bicycle locks around their necks.

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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 that the Attorney General has standing to maintain this action (see G. L. c. 12, Section 11H [1992 ed.]), but argue that no other plaintiff has. [Note 6] 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. [Note 7] 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 behalves. As we have said, however, the standing of the Attorney General supports the maintenance of this action. We, therefore, turn to the defendants' substantive challenges to the judgment entered against them.

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2. The defendants' conduct amounted to threats, intimidation, and coercion within the meaning of those words in G. L. c. 12, Section 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, Section 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, intimidation, or coercion." Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989). See Nicholas B. v. School Comm. of Worcester, 412 Mass. 20, 24 (1992); Layne v. Superintendent, 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 individuals, 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). [Note 8] In such circumstances a threat, intimidation, or coercion,

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interfering with secured rights gives rise to a MCRA violation. There is no doubt that the defendants' conduct involved physical confrontations accompanied by threats of harm.

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 exertion 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 language 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 conduct"). In Deas v. Dempsey, 403 Mass. 468, 471 (1988), we quoted a definition of coercion from Webster's New International 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

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by the defendants' conduct. Cf. Commonwealth v. DeVincent, 358 Mass. 592, 593 (1971) ("the threat is to be tested objectively; the state of mind of the person threatened is not controlling"); Commonwealth v. Ditsch, supra (reasonable apprehension 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 inferences that the defendants knowingly trespassed on clinic property 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 medical 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 constitutionally entitled." The judge ruled properly that the defendants' conduct "constitutes the application of physical force to constrain 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 confrontation 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

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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." [Note 9] In these circumstances, the judge was warranted in finding, and was 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 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 procedures 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 reasonable 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 concerning 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

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action for an injunction with no claim by specific women for the award of damages. Because the Commonwealth undertook to prove its case through nonpatient witnesses who were present at the protests, no patient 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 defendants' conduct would be relevant to the issue of the reaction of a reasonable woman in the circumstances. How actual participants responded to events could be a guide to how a reasonable person would react in the same circumstances. [Note 10] Cf. Commonwealth v. Matchett, 386 Mass. 492, 500-501 (1982).

Although the defendants' relevancy contention is theoretically 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,

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whose lives they disrupted, that would have led the trial judge to factual conclusions 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. Commonwealth v. Bishop, 416 Mass. 169, 181 (1993), citing Pennsylvania 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 proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome").

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 invalid 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 abortion 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

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intentionally and admittedly disrupted and further considering that disclosure of the identity of these women would intrude into their privacy on a matter of constitutional right, [Note 11] we conclude that the trial court did not abuse its discretion in denying disclosure of the identities of the women affected by the defendants' conduct. [Note 12]

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, Section 11H. This action is brought solely to protect against future unlawful conduct that would be harmful 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. [Note 13]

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4. The defendants claim that a portion of the amended permanent injunction is constitutionally impermissible. [Note 14] Their argument is directed to clause (c) of the injunction which was not included in the preliminary injunction that this court considered in Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701 (1990). [Note 15] Clause (c) enjoins the defendants, individually and collectively, from "directing, instructing, conspiring with and/or [sic] 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." [Note 16]

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

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aiding or abetting blockading, [Note 17] rather than against criminal activity itself, is vague. [Note 18]

The complete answer to the defendants' claims is that clause (c), using the words "aiding or abetting," is modeled on traditional 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), Commonwealth 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 Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973). Cf. Commonwealth 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 conduct 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 October 28, 1991, is affirmed as applied to the defendants.

So ordered.

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O'CONNOR, J. (dissenting, with whom NOLAN and LYNCH, 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 collectively, 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, 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), 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, I dissent in the present case.

No worthwhile purpose would be served by a full repetition here of the views expressed in the earlier dissent. Essentially,

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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 forbids 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 interference]. 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.