Only a cynic would accuse them of issuing an abortion decision last week simply to coincide with the eve of both the presidential Inauguration and the 20th anniversary of Roe v. Wade. Nonetheless, the ruling could not have come at a more opportune moment for the pro-life movement. The court held, 6 to 3, that an obscure 1871 civil-rights law could no longer be used to bar anti-abortion activists from blockading abortion clinics. The federal statute, which prohibits conspiracies to deprive a class of persons equal rights, was originally designed to stop the Ku Klux Klan from intimidating blacks after the Civil War. Abortion clinics sought to extend the law to cover them. The court said no. “Whatever one thinks of abortion,” Justice Antonin Scalia wrote, “it cannot be denied that there are common and respectable reasons for opposing it, other than hatred or condescension toward … women as a class.”
The decision will likely set off a new round of clinic protests around the country. Indeed, even -as the staff of Washington’s Operation Rescue office was celebrating last week, police detectives showed up to inquire if the ruling would boost attendance at clinic blockades that had already been planned for this week. You bet, the group’s Patrick Mahoney told them cheerfully. (Their demonstration will be one of several in Washington, including the Christian Defense Coalition’s plans to deliver an aborted fetus to Hillary Clinton.) While blockades will still be illegal under many state and local trespass laws, the removal of federal jurisdiction means that clinics can no longer win injunctions covering wide areas such as an entire state. “We’re not going to have to worry a whole lot about the federal courts giving us a hard time,” says Joseph Scheidler, executive director of the Pro-Life Action League.
After a decade in the victory lane, 1992 brought one wreck after another for the anti-abortion movement. The court, which had been picking away at Roe, reaffirmed a woman’s right to an abortion. Then came the election of Bill Clinton, who has promised to sign a broad Freedom of Choice Act and to fill the court with pro-choice justices. Given those setbacks, last week’s ruling is the first good pro-life news since Clarence Thomas joined the court in 1991. Randall Terry, founder of Operation Rescue, says he hopes for a return to the heyday of blockading in 1991, when protesters laid siege to Wichita. “Federal lawsuits constricted the flow of fresh recruits,” he says. “Now the dam will burst.”
With Democrats controlling the White House and Congress, the pro-life movement will have to concentrate even more on “unconventional techniques,” says Glen Halva-Neubauer, professor of political science at Furman University. He says the court decision means that radical groups like Operation Rescue are more likely now to gain ascendancy over more moderate forces like the National Right to Life Committee. Operation Rescue, like other militant groups on both sides of the abortion divide, can be extreme: some of its soldiers use their children in blockades, chain themselves to clinic doors and spill liquid acid that can make a clinic smell like vomit. “Sure we have to work politically,” says Patrick Mahoney of Operation Rescue, “but now we have to make a deeper commitment to go out into the streets.”
Pro-choice advocates are every bit as apocalyptic as their pro-life counterparts. “This ruling is an open invitation to anti-choice vigilantes to escalate the brutal … assaults on women seeking reproductive health care,” says Kate Michelman of the National Abortion Rights Action League. That’s an exaggeration. The risk of prosecution remains under state and local laws; a new law in California, for example, makes it a misdemeanor to blockade clinics, schools and places of worship.
And pro-life euphoria could be short-lived. The court’s decision has resuscitated Capitol Hill efforts to make clinic blockades illegal throughout the United States. Whether Congress acts or not, the abortion battle looks like it will be fought in the political arena rather than the judicial. That, more than anything, is precisely what the beleaguered justices intended.
In another decision that took federal courts out of a dispute, the justices ruled unanimously that it was for the U.S. Senate alone to decide how to handle impeachment trials. Former federal judge Walter Nixon of Mississippi was convicted by the Senate and removed from office in 1989; he was impeached after a criminal conviction for perjury. Nixon argued that the Senate’s procedure of using only a committee to conduct the trial was unconstitutional. The ruling will in all likelihood apply to a suit brought by Alcee Hastings, another judge removed by the Senate. Hastings was convicted by the Senate, even though a jury had acquitted him of bribery. Hastings may be seeing more of the senators: last week he was sworn in as a member of the House of Representatives from Florida.
