SUPREME COURT OF THE UNITED STATES


     CHRISTINE WILLIAMS AND CITIZENS FOR LIFE v. PLANNED PARENTHOOD SHASTA-
                                             ____
                                  DIABLO, INC.

      ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
                       No. 95-576.  Decided March 17, 1997

  The petition for a writ of certiorari is denied.

  JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, dissenting
from denial of  certiorari.
  The issue in this case is the constitutionality of an injunction against
abortion protestors.  The injunction limits their First Amendment activities to
a sidewalk separated from the clinic that is the object of their protest by a
busy four-lane avenue.  The case has made its way back here after we set aside
the Supreme Court of California's earlier judgment approving the injunction, 7
Cal. 4th 860, 873 P. 2d 1224 (1994), and remanded the case so that the court
could reconsider its holding in light of our decision in Madsen v. Women's
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Health Center, Inc., 512 U. S. 753 (1994).  513 U. S. 956 (1994).  On remand,
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the Supreme Court of California concluded that the provision in question "is
equally valid under the new standard set forth in Madsen," and therefore
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"reaffirm[ed] the judgment in favor of Planned Parenthood."  10 Cal. 4th 1009,
1012, 898 P. 2d 402, 404 (1995).  That was in my view patent error, and has been
confirmed as such by Schenck v. Pro-Choice Network of Western N. Y., 519 U. S.
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___ (1997).  I think it important to the dignity of this Court and the integrity
of its processes to set aside what can only be regarded as an intentional
evasion of its decrees.  I would grant the petition for certiorari, summarily
reverse the judgment

2                        WILLIAMS v. PLANNED PARENTHOOD
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of the Supreme Court of California, and remand for further proceedings.
  This case - unlike Schenck - is not one in which the record reveals instances
                     _______
of serious unlawful conduct by clinic protestors.  The following was the
testimony of Janice Schoenfeld, the "escort coordinator" of the clinic, at the
hearing on the application for a permanent injunction:

     "Q. Did you ever see any of this group of defendants prevent somebody from
   getting in the front door of the clinic?
     "A. No.
     "Q. Did you ever see them manhandle any of your clients?
     "A. No.
     "Q. Was anybody, to the best of your knowledge, that wanted to get an
   abortion, prevented from getting an abortion?
     "A. No.
     "Q. Did you ever attempt to make a citizen's arrest of any of the
   defendants?
     "A. No, I did not.
     "Q. Do you know if any of them were ever arrested?
     "A. Not at the Vallejo clinic, that I know of.  Some have been in other
   Operation Rescue activity.
          .     .      .      .      .
     "Q. Did you ever see any of the defendants prevent any cars from parking in
   the parking lot?
     "A. Not prevent them from parking, no."  Tr. 54-55.

This is a record so devoid of threatening physical confrontation it would make
an old-fashioned union organizer blush.  Yet the trial court entered - and the
Supreme Court of California approved - an injunction severely curtailing the
speech rights of clinic protestors in a public forum.
  The basis for that injunction - and for the Supreme Court of California's
initial approval of it - was the

                         WILLIAMS v. PLANNED PARENTHOOD                        3
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perceived government interest in preventing "increased stress and anxiety" among
abortion patients.  7 Cal. 4th, at 872-876, 873 P. 2d, at 1230-1233 (internal
quotation marks and citation omitted).  As the Supreme Court of California
explained, "emotionally jarring confrontations with anti-abortion pickets or
sidewalk `counselors' may pose serious health risks."  Id., at 874, 873 P. 2d,
                                                       ___
at 1232.  The "substantial governmental interest in protecting the patients'
physical and emotional health and safety" justified restricting the abortion
opponents to areas far removed from the clinic.  Id., at 876, 873 P. 2d, at
                                                 ___
1233.
  This holding was no longer supportable after we vacated the Supreme Court of
California's judgment in light of Madsen, and remanded the case for further
                                  ______
proceedings.  Madsen, in disallowing an injunction which prevented abortion
              ______
opponents from approaching persons seeking services at an abortion clinic, said:

   "Absent evidence that the protesters' speech is independently proscribable
   (i.e., `fighting words' or threats), or is so infused with violence as to be
    ____
   indistinguishable from a threat of physical harm, this provision cannot
   stand."  512 U. S., at 774  (citation omitted).

Despite this holding, the Supreme Court of California, on remand, did not
abandon but reaffirmed its assertion that avoiding upset to the clinic's clients
justified keeping the protesters at a distance.  10 Cal. 4th, at 1021, 898 P.
2d, at 410.  When the defendants again petitioned us for certiorari, we held the
case pending our decision in Schenck.
                             _______
  Whatever glimmer of hope Madsen might have left regarding the legitimacy of
                           ______
the Supreme Court of California's "emotional upset" justification was entirely
snuffed by Schenck, in which we reiterated, in the most unmistakable terms, that
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there is no legitimate government interest in protecting the "right of the
people approaching and entering [clinics] to be left alone" on the

4                        WILLIAMS v. PLANNED PARENTHOOD
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public streets, 519 U. S., at ___ (slip op., at 24).  Schenck would require,
                                                      _______
without further analysis, a reversal of the judgment here, but for one
additional factor: In its second opinion in this case - after our remand in
light of Madsen - the California Supreme Court for the first time discerned a
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second state interest in support of the injunction: an interest in "ensuring
unfettered access" to the clinic, 10 Cal. 4th, at 1022, 898 P. 2d, at 410. 
This, it should be noted with suspicion, is an interest which the court had
expressly disclaimed in its first opinion, saying that "the critical issue [is]
not access, but health and safety."  7 Cal. 4th, at 879, n. 10, 873 P. 2d 1235,
n. 10.
  It is not normally our practice to scrutinize the record support for the
grounds asserted by state courts or lower federal courts as a basis for
rejecting constitutional claims.  We have, however, sometimes been disposed to
do so when the abridgment of First Amendment rights was at issue.  See, e.g.,
                                                                        ____
NAACP v. Claiborne Hardware Co., 458 U. S. 886, 915, and n. 50 (1982); Edwards
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v. South Carolina, 372 U. S. 229, 235 (1963).  And we should in my view always
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be disposed to do so when the grounds are newly minted after a remand,
contradict what was said before the remand, and bear indication of an attempt to
evade the consequences of our holding prompting the remand.  That is the case
here; and an examination of the record for support of the newly minted ground
discloses that it does not exist. 
  The trial court made many findings regarding activities tending to cause, not
blocking of the entrances to the clinic parking lot, but "increased stress and
anxiety" to clinic patrons and staff: protesters "confront and intimidate women
seeking [respondent's] services," "force . . . `counseling' upon [respondent's]
staff and clients," "have called staff `murderers' or asked them not to `kill
babies' in the presence of small children," "have pursued [respondent's] clients
to their cars or public transportation in an effort to distribute literature and
the plastic fetuses," and "bring small children to the area who run

                         WILLIAMS v. PLANNED PARENTHOOD                        5
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up and down the public sidewalk in front of plaintiff's premises."  App. to Pet.
for Cert. 42a-43a.  The trial court also made findings regarding the impact of
these activities on respondent, its patrons, and its staff: "[Respondent] must
escort its clients through picket lines and [petitioners']
`picketers/counselors' in its parking lot," and "[t]he conduct of [petitioners]
and their picketers/counselors have [sic] caused some of the women seeking
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counselling or services from plaintiff to become emotionally distraught."  Ibid. 
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But the only finding remotely related to access to the clinic is the following:
Protesters "stand directly in front of [respondent's] office door and interfer
[sic] with or obstruct entrance to and from [respondent's] clinic."  Id., at
_____                                                                ___
42a.  This finding (which, by the way, has no support in the record if it is
interpreted to mean physical obstruction (Ftnote. 1)) pertains to behavior at
                                         (Ftnote. 1)
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the entrance to the clinic - which is some 100 feet inside the parking lot, from
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which the injunction (without objection) excludes the protesters entirely.  It
obviously cannot support excluding protesters from the public sidewalk adjoining
the entrances to the parking























                    
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   1)  There was no testimony that petitioners had blocked the entrance, but
   1)                                              _______
only statements that they had stood very close to the entrance, trying to pass
literature or other material to those going in.  See Tr. 17-18 (testimony of
Janice Schoenfeld at hearing on preliminary injunction) ("I did not say they
blocked the door.  I said they stand very close to the door") ("Q. Has any one
of your clients ever been prevented from entering the clinic?  A. No"); id., at
                                                                        ___
54 (testimony of Schoenfeld at hearing on permanent injunction) ("Q. Did you
ever see any of this group of defendants prevent somebody from getting in the
front door of the clinic?  A. No"); id., at 65 (testimony of Marsha Anderson at
                                    ___
hearing on permanent injunction) ("Q. Did you observe any of your patrons being
denied entrance into the clinic by any of the defendants?  A. I know they
progressed to the front door, interrupted them, but not prohibited them").  Of
course if, as the trial court believed, subjecting abortion clients to
"emotional upset" was unlawful, forcing clients to expose themselves to such
unlawful activity in order to enter or exit the clinic would constitute
                                                       _____
"interfer[ing] with" their access - and that is evidently what the trial court
had in mind.

6                        WILLIAMS v. PLANNED PARENTHOOD
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lot, where it has never been so much as suggested that any blocking of access
occurred.  The Supreme Court of California's opinion misrepresents this, saying
that "the trial court found here, that petitioners had significantly blocked
driveways . . . ."  10 Cal. 4th, at 1023, 898 P. 2d, at 411.  The only authority
cited for this proposition is that portion of the court's own pre-Madsen opinion
                                                                  ______
which recites (inter alia) the trial court's finding that protestors "pursued
              ____________
patients to their cars . . . to distribute literature."  7 Cal. 4th, at 867, 873
P. 2d, at 1227.  This obviously does not establish (or even suggest) that
petitioners "blocked driveways." (Ftnote. 2)
                                 (Ftnote. 2)
  Of course, even if there had been a finding of interference with free access
to the parking lot, the challenged injunction would require further findings to
establish that no restraint short of total exclusion of free speech from the
public sidewalk - such as limiting the number of protestors - could have
eliminated the interference.  Cf. Mine Workers v. Bagwell, 512 U. S. 821, 823
                                  ____________    ________
(1994) (injunction imposing numerical limit on picketers).  A conclusion that
complete exclusion of protestors was necessary in this case would be difficult
to square with the history of what happened: The trial court initially issued a
temporary restraining order drafted by respondent, which permitted two picketers
                            _____________________        _______________________
on the sidewalk in front of the clinic.  App. to Pet. for Cert. 64a-66a. 
Shortly thereafter, it issued a preliminary injunction increasing to four the
                                                       __________________
number of picketers allowed on


























                    
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   2)  In a separate portion of its opinion, the Supreme Court of California
   2)  
stated (without any citation of record support) that "[o]ne of the tactics of
the sidewalk picketers was to walk slowly across the driveway entrance, thereby
delaying cars attempting to turn into the parking lot from the street."  10 Cal.
4th, at 1012, 898 P. 2d, at 404.  Apart from the fact that the trial court made
                                                               ___________
no such finding in connection with its entry of the injunction, see App. to Pet.
for Cert. 42a-43a, "delaying" the entry of cars into the lot as an incidental
result of lawful picket activity is by no means equivalent to "blocking
driveways."

                         WILLIAMS v. PLANNED PARENTHOOD                        7
                                 ____

that sidewalk.  Id., at 67a-68a.  Despite this apparent sign of success - and
                ___
without any request by respondent for more restrictive relief - 11 months later
the trial court imposed the permanent injunction at issue here, banning all
picketing in front of the clinic.  The reason, of course, was that (as the
Supreme Court of California concluded the first time around) the trial court was
not concerned about "impeding access"; it was concerned about preventing "stress
and anxiety."
  Since the trial court did not find that the challenged injunction provision
was necessary to secure access, the Supreme Court of California took it upon
itself to provide the requisite finding.  "[T]he evidence at trial," the court
proclaimed, "indicated that picketers had not followed the preliminary
injunction . . . ."  10 Cal. 4th, at 1024, 898 P. 2d, at 411-412.  For this the
court offers no support other than citation of its earlier opinion in this case,
7 Cal. 4th, at 866-867, n. 2, 873 P. 2d, at 1227, n. 2, which in turn relies
upon nothing more probative than the following testimony of Janice Schoenfeld:
     "Q. Have you observed picket activity since the injunction?
     "A. Yes, but they followed the injunction usually, except for picketers.
     "MS. RYER: Thank you.  I have nothing further.  Thank you.
     "THE COURT: You say that they followed the injunction?
     "THE WITNESS: They followed the injunction, yes, since the injunction." 
   Tr. 52-53.

Even if the record did establish some violation of the preliminary injunction,
                                 ____
it would still not establish a violation related to access, supporting the
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proposition that banishment to the other side of the avenue was "the only
practicable means of ensuring unfettered access," 10 Cal. 4th, at 1022, 898
P. 2d, at 410.  As far as appears, any failure to "follo[w] the injunction"
might

8                        WILLIAMS v. PLANNED PARENTHOOD
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have related to one of the many prohibitions that had nothing to do with
obstructing access.  Indeed, the odds are in favor of that, since almost all of
the prohibitions in the preliminary injunction were of that character.  The
record simply does not contain the facts necessary to support the challenged
provision in the name of protection of access.
                                   *    *    *

  This case having been held pending the issuance of our opinion in Schenck; and
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Schenck having come out four-square against the principal theory relied upon by
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the Supreme Court of California; it is quite impossible to understand why any
disposition short of a reversal and remand would be appropriate.  If we were
prepared to take at face value the court's post-Madsen-invented "obstruction of
                                                ______
entrances" justification, then there was no reason to hold the case in the first
place.  The hold was correct, and today's denial of certiorari smiles upon
injustice to these petitioners and disregard of the processes of this Court.  I
dissent.