High Court Resumes Abortion Blockade Debate

Lawyers for the Bush Administration and the anti-abortion group Operation Rescue urged the Supreme Court on Tuesday to declare that federal judges have no power to break up human blockades of abortion clinics.

Justice Department attorney John Roberts Jr. argued that although the Administration does not defend the tactics of Operation Rescue and other anti-abortion groups that block access to clinics, the issue should be left to state courts to decide.

At issue is whether a post-Civil War measure known as the Ku Klux Klan Act can be applied to the modern-day fight over abortion. In recent years, federal judges across the nation have invoked the 1871 law to order a halt to clinic blockades.

However, Administration lawyers said that this law covers only instances of a “discriminatory animus” against a distinct group of people, such as racial attacks on blacks.

Operation Rescue’s members “are perfectly non-discriminatory in their opposition to abortion,” Roberts told the court. “They are opposed to abortion, not women.”

But women’s rights lawyers argued that the 1871 law gave judges broad power to cope with “mob violence,” even if subsequent Supreme Court rulings narrowed its application to instances of discrimination. The law authorizes judges to intervene “if two or more persons conspire” to use force to prevent others from exercising “any right or privilege” under the U.S. Constitution.

Deborah Ellis of the NOW Legal Defense Fund said that Operation Rescue is engaged in “a nationwide systematic conspiracy” to prevent women from exercising their right to choose abortion.

Judges in Atlanta, New York, Wichita, Kan., and Alexandria, Va., have used the 1871 law against Operation Rescue. It is the only federal statute that gives U.S. judges the power to issue injunctions in such disputes.

The justices are apparently closely split on the issue. The case (Bray vs. Alexandria Women’s Health Clinic, 90-985) was first argued last October, before Justice Clarence Thomas took his seat. In May, the court issued a brief announcement saying that it wanted to hear a second round of arguments, raising a strong possibility that Thomas will hold the deciding vote. However, he asked no questions Tuesday.

Outside the court, Operation Rescue founder Randall Terry praised the Administration’s stand and said that his followers would mobilize to ensure President Bush’s reelection. “George Bush has been a faithful ally of the pro-life movement and Operation Rescue,” Terry said. “To vote for Bill Clinton is to sin against God.”

But Patricia Ireland, president of the National Organization for Women, condemned the Administration for backing the militant protesters. “Today, George Bush stands on the side of the vigilante mob,” she said.