Justices Rebuff Foes of Abortion : Law: A Supreme Court decision lets stand a N.Y. ban on blocking clinics. Operation Rescue faces stiff fines.


In a sharp setback for anti-abortion demonstrators, the Supreme Court let stand Monday a ruling banning Operation Rescue activists from blocking access to New York clinics and fining the organization $70,000 for harassing women seeking abortions.

The decision not only adds to the financial troubles of Operation Rescue, but gives abortion rights lawyers a new legal weapon against vehement protesters.

After a series of anti-abortion demonstrations blocked clinics in New York, federal courts there declared that Operation Rescue had violated an 1871 law, known as the Ku Klux Klan Act, by conspiring to deprive women of their right to get an abortion.

The law makes it illegal for “two or more persons” to conspire “for the purpose of depriving any person or class of persons” from exercising their constitutional rights.


Based on this law, the federal courts imposed a permanent ban in New York against blocking the entrances to an abortion clinic or harassing its patrons and employees.

Monday’s decision was the second time in two weeks that the justices rejected an appeal from Operation Rescue.

Last week, the organization’s lawyers in Atlanta challenged on free-speech grounds a judge’s strict order forbidding anti-abortion protesters to block sidewalks in front of clinics or bothering those trying to enter. On a 5-4 vote last week, the high court refused to lift that order, which had not yet been violated by the group.

In the New York case, the anti-abortion protesters violated the judge’s order and then appealed their contempt fines through the federal court system. The result was the same: The justices turned down the appeal, this time unanimously. (Randall Terry vs. New York State NOW, 89-1408.)

Last fall, the justices also let stand a ruling from Philadelphia allowing anti-abortion activists to be sued for damages under the federal racketeering law known as RICO.

The Supreme Court, as usual, did not explain its reasons for refusing to hear the Operation Rescue appeal. The justices generally caution against reading much into such a refusal.

But the recent high court actions, when combined with an array of lower court rulings, suggest that the federal judiciary is unwilling to tolerate anti-abortion protests that involve harassing women or blocking facilities.

Without much success, Operation Rescue has characterized its protest activities as akin to the civil rights demonstrations of the 1960s. Then, black students used sit-ins at lunch counters as a way to violate segregation laws and to expose the immorality of the system. If convicted or fined in a Southern court, they usually could count on a favorable hearing from the Supreme Court.

Similarly, Operation Rescue has said its “nonviolent, sit-in demonstrations” at medical clinics are designed to expose the immorality of abortion.

But so far, the federal court system, even one stocked with appointees of former President Ronald Reagan, has refused to take a favorable view of these abortion protests.

In a statement, Randall A. Terry, Operation Rescue’s leader, called the decision “terribly disappointing. Once again, the Supreme Court has shown itself to be the ‘great defender’ of the abortion industry.”

Terry also faces an additional $450,000 in contempt fines growing out of the New York demonstrations that have yet to be appealed. He accused the courts of trying “to bankrupt us and close us down.”

Alison Wetherfield, a National Organization for Women Legal Defense Fund lawyer, said she hopes Monday’s decision will persuade Operation Rescue to change its tactics.

“They have every right to disapprove of abortion, but they have no right to block a health facility,” she said.

The New York case clearly involved a clash of two constitutional rights: the right to freely protest abortion and the right of women to get an abortion as set forth in the Roe vs. Wade ruling.

But the U.S. 2nd Circuit Court of Appeals, in rejecting Operation Rescue’s appeal, drew a clear line between legal protest and illegal harassment.

“There is no constitutional privilege to assault or harass an individual or to invade another’s personal space,” wrote Judge Richard J. Cardamone, a Reagan appointee to the appeals court. “Blocking access to public and private buildings has never been upheld as a proper method of communication in an orderly society.”

Equally significant, the appeals court ruled that the Ku Klux Klan Act protects women in their right to seek an abortion.

The post-Civil War law was intended to give blacks the protection of the federal courts when they were attacked or intimidated by Southern whites. The New York appeals court said the same law also gives women seeking an abortion the right to sue those who conspire to intimidate them.

Last September, a federal judge in Los Angeles came to the opposite conclusion. U.S. District Judge A. Wallace Tashima said the law covered blacks, but not “abortion-seekers.” His ruling is being appealed to the U.S. 9th Circuit Court of Appeals.

Lawyers for Operation Rescue, in their appeal to the Supreme Court, said the abortion protesters do not deserve to be branded with the stain of the Ku Klux Klan.

“Truth has come full circle,” they said, “when peaceful nonviolent pro-life demonstrators, many of whom are praying for abortion seekers, are charged with animus against women similar to the Ku Klux Klan’s hatred of blacks.”

But the NOW defense team called Operation Rescue “an organized mob” that “seeks by sheer force of numbers to prevent women from exercising their constitutional rights, just as the Ku Klux Klan sought to prevent newly freed slaves from exercising their constitutional rights.”

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