Less to Celebrate, 20 Years After Roe : Abortion: Supreme Court holds that blocking women from clinics is not gender bias.

Last term, a majority of the Supreme Court reiterated the fundamental nature of a woman’s right to choose abortion. This week, the court placed a hurdle in the path, saying pregnant women could exercise this right only if they had the physical and emotional stamina to get past the mobs they would face at the clinic door. With this opinion, the court has directed that women will find fewer civil-rights protections than others at the federal courthouse.

For the majority of the Supreme Court, the world continues to be composed of two types of people: those who are pregnant and those who are not. Because women are in both categories, the Supreme Court reasons, the ability to become pregnant and the possibility that a pregnant person might seek an abortion cannot be gender-based. Of course, this ignores the fact that the ability to become pregnant is a characteristic unique to women. In writing the majority opinion, Justice Antonin Scalia reasoned that because men and women are on both sides of the abortion issue and both sides of the clinic blockades, it cannot be a gender claim. That is absurd logic. Under that reasoning, if Clarence Thomas held a different view on racial discrimination from Jesse Jackson, there could be no issue of inequality on the basis of race because African-Americans would be on both sides.

But the decision by the court this week in the Bray case does something more than say that discrimination on the basis of abortion is not discrimination on the basis of gender. In truth, Scalia’s opinion is a transparent attempt to cloak his own vehement opposition to abortion rights behind the veil of a legal nicety. The court’s deliberate focus on the definitional contrivance of the anti-abortion demonstrators reveals the true agenda of the majority’s opinion.

Operation Rescue defines its aim as saving the “innocent victims of abortion from the abortionists.” Scalia explicitly adopted this language as the court’s. But the true victims are the women who are pushed and shoved as they are denied a fundamental right.

The transparency of the majority’s anti-abortion agenda did not escape the dissenting justices. Justice Sandra Day O’Connor recognized that if Operation Rescue members wanted simply to oppose abortion, there are myriad lawful avenues available. Instead, they have chosen to organize mob activity aimed at preventing women from entering the offices of abortion providers. O’Connor correctly recognized that the court should be looking at women, not fetuses, as the victims.

Throughout modern civil-rights history, the federal courts have played a critical role in protecting the rights of individuals against mob assaults when state officials would not or could not respond. Anyone who saw the TV reports of Operation Rescue blockades during the 1988 Democratic Convention in Atlanta or the terror Operation Rescue brought to Los Angeles knows full well that these are mob attacks. Operation Rescue has trained anti-abortion forces to overwhelm local law enforcement and blockade the entrances to women’s clinics to deny women the ability to exercise their legal rights.

With the knowledge that the federal courts will now provide no haven for women, Operation Rescue and other anti-abortion groups will feel free to launch even more violent attacks on women and the health-care providers who support safe and legal abortion. Now, the trauma of back-alley butchers that preceded Roe vs. Wade will be supplanted with the threat of public attacks as women enter clinics.

Next week, we will celebrate the 20th anniversary of Roe vs. Wade. The decision of the Supreme Court in Bray means that women have less to celebrate. More than 80% of the nation’s counties lack abortion providers. With this most recent decision, women will have to travel farther or return to back alleys to end unwanted pregnancies. Either way, women have been made less equal in our society.