Some Friend of the Court : Washington crashes Wichita abortion case

Does the U.S. Justice Department stand for upholding the law? If so, it must stand for upholding all laws--even ones that are not palatable to an Administration that’s trying to score political points with those who want to outlaw medically safe and legal abortion.

The Justice Department has unwisely inserted itself into a three-week-long anti-abortion protest in Wichita, Kan. In so doing, the department has inflamed an already tense showdown there and suggested that it supports efforts to deprive women, through physical intimidation, of their legally protected right to choose to have an abortion.

CONFRONTATION: The protests are organized by Operation Rescue, a national anti-abortion organization known for its confrontational tactics. Protesters flung themselves under a car to try to prevent a doctor from entering the driveway of a clinic, blocked clinic doorways and otherwise harassed those trying to enter or leave. The clinics sued in federal court, citing a Reconstruction-era law designed to protect blacks from racial harassment. U.S. District Judge Patrick Kelly issued an order to prohibit protesters from blocking the entrances to the clinics or physically harassing staff or patients. Kelly’s order, enforced by U.S. marshals and local police, doesn’t stop protesters from expressing their opinion--only from blocking others from exercising their legal rights. In other words, Kelly did what judges are supposed to: uphold the law.

The Justice Department, in a poorly considered and ill-advised move, filed a friend-of-the-court brief on behalf of Operation Rescue. The department said it agrees that a federal judge should not have jurisdiction in this case. The Reconstruction-era law in question, the Justice Department has already argued in a pending U.S. Supreme Court case, applied only to blacks and not to women seeking abortions. That assertion is cruelly ironic: Consider that Operation Rescue protesters have sought to compare themselves to ‘60s civil rights protesters. But they neglect to mention that the freedom riders, the Little Rock Nine and others sought to obtain rights to which they were already legally entitled--while these anti-abortion protesters seek to deny legal abortion rights to women.

CONTRADICTION: Those who want to criminalize abortion always have the right to voice their opposition and lobby to change laws. But blocking access to a clinic and crawling under cars are quite another thing. Why would the Justice Department want to affiliate itself in any way with these tactics?

In fact, the department is talking out of both sides of its mouth. The attorney general noted that federal marshals are still enforcing Judge Kelly’s order. Yet by taking such a visible stand against federal court involvement in this case, the department is doing all it can to help void Kelly’s necessary order to calm what he called the “mayhem and distress” that has gripped Wichita. The Justice Department’s unnecessary intrusion into this volatile case can only heighten the distress and increase the possibility of mayhem.