Jurisdiction in Clinic Blockade Argued

State courts should deal with abortion protesters who block access to clinics, Bush Administration officials told the Supreme Court on Wednesday, but a lawyer for clinic owners said protests in Wichita, Kan., showed that “states need federal help.”

The high court has a Virginia case under study, but lawyer John Schafer offered a reminder of the upheaval in Wichita caused when Operation Rescue targeted abortion clinics in that city. Hundreds of the anti-abortion group’s members were arrested.

At issue is the availability of federal courts when abortion clinic owners sue for monetary damages or to bar future blockades.

“Federal injunctions, frankly, mean more than state injunctions,” Schafer said. “States need federal help. Wichita showed that this summer.”

But Justice Department lawyer John Roberts Jr. said the Operation Rescue tactics are not motivated by the necessary discriminatory motives against women that would create federal court jurisdiction.

“The conspirators (to be governed by federal law) must seek to deny to some what they would permit for others,” Roberts said. He said Operation Rescue members want to bar access to abortions for all women.

At the center of the controversy is a post-Civil War federal law, the Ku Klux Klan Act of 1871, that bans conspiracies aimed at violating the constitutional rights of certain people.

The law protects “any person or class of persons,” and past Supreme Court rulings have interpreted that phrase to mean that those who sue must be the victims of “class-based animus.”

A federal judge in Alexandria, Va., and the Richmond-based U.S. 4th Circuit Court of Appeals ruled that women seeking abortions are a protected “class of persons” who may invoke the law.

The lower courts said clinic blockades interfered with the interstate travel rights of women who do not live in Virginia but sought abortions there. The lower courts barred Operation Rescue members from blockading nine abortion clinics.

Jay Alan Sekulow, a lawyer for Operation Rescue, said opposition to abortion is not the same as discrimination against women.

“You have to look at what is motivating these individuals,” he said.

The court’s decision in the Virginia case (Bray vs. Alexandria Women’s Health Clinic, 90-985) is expected by July.