A Civil Action Becoming Doctors’ Defense Weapon

When Dr. Warren Hern walks into a restaurant, he heads for a seat with its back to the wall. He installed bulletproof glass on his office windows and $1,400 worth of blinds at home. He varies his route to work. At public meetings, he wears a bulletproof vest.

“I felt like a hunted animal . . . like I could be shot at any time,” the Boulder, Colo., physician said of his life after being listed on a “wanted poster” and an Internet site launched by anti-abortion groups. “The message is, ‘Do what we tell you to do, or we will kill you’--and they do.”

Across a federal courtroom here--and on the other side of one of America’s deepest political divides--defendant Andrew Burnett set out to erect a moral framework to counter Hern’s fear. “If the child in the womb--who I believe is a human being--could be defended in a way I would defend my own child who is born, it’s possible there’s even a legal argument [for committing violence] . . . to save the life of the child,” he said.

After more than two decades of clinic violence, the abortion-rights movement now is fighting its radical opponents in a way that law enforcement hasn’t been able to--by filing lawsuits that seek millions of dollars in damages, as well as an end to veiled threats against abortion providers.

At issue in the trial unfolding here this week before U.S. District Judge Robert Jones is an Internet site that invites readers to send in names, addresses and personal details about abortion providers, then crosses their names off a list when they are attacked or killed. A similarly themed poster offered a $5,000 reward for information about a “deadly dozen” doctors allegedly “guilty of crimes against humanity.”

The lawsuit, which seeks $200 million in damages, is the first private civil case to go to trial under the 1994 federal law that prohibits force or threats of force against clients and providers of reproductive health services.

Touchy Subject for the ACLU

Pushing the boundaries of 1st Amendment protection on the Internet, the suit--filed by the local Planned Parenthood chapter and several other abortion providers--also seeks a declaration that the Web site and various “wanted posters” are illegal threats not protected by the Constitution.

Never before have anti-abortion forces been targeted for the kinds of understated messages--a doctor’s photo and address on a poster, a comparison of abortion providers to Nazi war criminals--that could inspire as much fear as a direct threat.

The American Civil Liberties Union, recognizing the fine line that divides free speech and illegal intimidation, has weighed in guardedly, arguing that the 1st Amendment does not shield those who make threats of imminent bodily harm.

“The challenge, therefore, is to distinguish between a ‘true threat’ . . . and statements that are protected--and must be protected if we are not to chill vigorous and spirited political debate about important and controversial matters,” the group said in a friend-of-the-court brief.

Michael Bray, another defendant in the case, who had served nearly four years in prison in the 1980s for clinic bombings, said in an interview Tuesday, “The history of this case is the plaintiffs have failed to discover any real violation of the law, so now they’ve stretched it to make it somehow that our words become threatening.”

If someone who sees a poster elects to shoot a doctor whose picture is shown, “I suppose there’s an inevitable connection to be drawn, but one need not make our speech culpable for someone else’s deeds,” said Bray, against whom a default judgment already has been entered in the case, after he refused to answer questions about his past criminal activities. “When someone rails against a politician and another one comes up and shoots him, that doesn’t mean someone’s speech should be restricted because someone else acts on his invective.”

At issue is the fringe element of the anti-abortion movement that has moved a step beyond the protests and harassment targeting abortion clinics to a series of violent attacks on abortion providers and clinic workers.

Since 1977, there have been 153 incidents of arson, 39 bombings and 99 acid attacks against abortion providers, according to the National Abortion Federation. Seven physicians and clinic workers have been killed in the last five years, with 16 attempted murders since 1991.

The most recent--and most brazen--attack was the Oct. 23 murder of New York abortion provider Barnett A. Slepian, who died while standing in his kitchen with his wife and son when a sniper fired a bullet through the window.

Defendants in the civil suit--which targets the American Coalition of Life Activists, the Portland-based Advocates for Life Ministries and such prominent members of the anti-abortion movement as Burnett, Bray, Charles Roy McMillan and Donald Treshman--have on occasion advanced the argument that killing abortion providers may constitute “justifiable homicide” in the defense of unborn children.

“Abortionists are serial killers. They’re paid, contract serial killers,” Burnett said in an interview read in court this week. Burnett was one of the founders of Operation Rescue in the 1980s, before helping found the American Coalition of Life Activists.

Call for Information, Not Violence

Attorneys for the defendants have argued that none of the posters or Web site materials suggest violence--the deadly dozen poster offers its reward “for information leading to arrest, conviction and revocation of license to practice medicine”--and that none of the plaintiffs named in the material has been the target of any violent attack.

During cross-examination, Christopher Ferrara of the American Catholic Lawyers Assn. also confronted Hern--one of the few physicians in the country who performs third-trimester abortions--with a statement from Hern’s own Web site about families who request an intact fetus in order to bury it and proceed in the grieving process.

“ ‘For many of these patients, it’s not a fetus, it’s a baby,’ ” Ferrara read from Hern’s Web site. “Can you not see how something like this would prompt some people to condemn what you do? You don’t see that some people would look at that and say, ‘Look, doctor, you’re killing babies?’ ”

“No,” Hern replied.

The defense is attempting to show that the physicians bringing the suit have been the targets of public scorn for years, and therefore have no reason to see the posters and Web site as particularly onerous.

Message of Violence Loud and Clear

The plaintiffs must show that, even though the materials did not specifically threaten violence, they were intended to be threatening and were perceived as real dangers in the climate of fear and intimidation in which these physicians live.

As evidence, the plaintiffs cited earlier posters, not prepared by the defendants in this case, that preceded the 1993 murders of doctors David Gunn, John Britton and George Patterson in Pensacola, Fla.

They also provided testimony from the FBI and U.S. Marshal’s service, whose agents said they immediately offered protection to doctors named in the deadly dozen poster, which they regarded as threatening.

“When understood in this context, and taken either individually or together, the intended message of the defendants’ posters is unmistakable: If you do not stop providing access to reproductive health care, you will be injured or murdered,” Planned Parenthood said in its complaint.

Lawyers and parties in the case have been prohibited from talking to the press. But other organizations say its outcome could be crucial to future battles against anti-abortion activists in the civil courts. Until now, private groups such as the National Organization for Women have been limited to state and federal racketeering statutes, which require proof of overt extortion and a concerted pattern of activity.

The U.S. Justice Department has used the 1994 abortion clinic law in criminal and civil courts, but has been reluctant to bring suit in cases that do not involve open threats of violence, said Priscilla Smith of the Center for Reproductive Law and Policy in New York.

“This case is the first one that challenges this kind of activity, putting information out there that feels threatening to the doctors, but somebody isn’t coming up and saying, ‘I’m going to kill you,’ ” she said.

Smith said it is also important to raise challenges to threats posted on the Internet, because of its potential for rapid and wide dissemination.

“That in and of itself makes doctors feel more vulnerable,” she said. “This information can get to somebody in the woods of North Carolina or on the Canadian border in two seconds.”

Bray denied that any of the defendants in the case were responsible for the “Nuremberg Trials” Web site, which is operated by a Georgia computer programmer not named in the case--although the site originally listed the American Coalition of Life Activists as a sponsor. Bray did say, however, that the posters targeting abortion physicians are a legitimate way of bringing public scorn on them.

“It’s a way of saying, ‘You ought to be ashamed of what you do,’ ” Bray said. “One thing would be to persuade the public, why should you want to consult with such a person, why would you want to have such a person in your neighborhood? It’s an exposing of evil.”