THE 20th anniversary of the Supreme Court's Roe v. Wade decision, the foundation of abortion rights in the United States, will be marked this month in the shadow of a decision the court handed down a few days ago in the case of Bray v. Alexandria Women's Health Clinic.
The court ruled, 6 to 3, that a federal statute passed in 1871 to restrain Ku Klux Klan attacks on newly freed slaves in the South after the Civil War could not be used to prosecute militant anti-abortion groups like Operation Rescue for their attacks on women's health clinics.
This does not leave the clinics without legal recourse against their tormentors, whose actions have ranged from blockades to bomb threats to chemical attacks. But the Ku Klux Klan Act has proven more useful than state laws against trespass or harassment; it allows clinics to obtain injunctions valid over entire counties. State laws allow for only case-by-case relief in most cases.
It was the Ku Klux Klan Act that federal Judge Patrick Kelly used to restrain Operation Rescue in its campaign in Wichita, Kan., during the summer of 1991. He ordered federal marshals to protect clinics there when local authorities seemed reluctant to do so.
Judge Kelly expressed disappointment in the Bray decision, telling the New York Times that if he hadn't ordered marshals in 1991, "there would have been mayhem in Wichita."
The anti-Klan act bars conspiracies to deprive "any person or class of persons" of the equal protection of the laws; precedents have restricted application of the statute to conspiracies motivated by a "class-based, individiously discriminatory animus," as the court put it in 1971.
In the Bray case, the majority held that women seeking abortions did not, for purposes of the statute, constitute a "class." "Whatever one thinks of abortion," the court wrote, "it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of or condescension toward...women."
The majority further took issue with assertions that the anti-abortion activists' hostility against women seeking abortions is comparable to racism. "The goal of preventing abortion...does not remotely qualify for such harsh description." The dissenting justices saw the "protected class" issue differently. Associate Justice John Paul Stevens wrote, "The case involves no ordinary trespass, nor anything remotely resembling the peaceful picketing of a local retailer. It presents a striking contemporary exam ple of the kind of zealous, politically motivated, lawless conduct that led to the enactment" of the 1871 law.
Hey, get real, guys, one is tempted to say. Does anybody believe that if Handgun Control Inc. or similar organizations were to harass the customers of gun shops the way Operation Rescue harasses visitors to women's clinics, they would be allowed to get away with it?
After all, both those seeking abortion and those seeking to buy firearms may be acting completely within their explicit legal rights. And Operation Rescue has not always taken care to distinguish between health-clinic clients seeking abortions and those seeking other services.
What does a court decision forbidding the illegalization of a certain action - as Roe v. Wade forbade states to outlaw first-trimester abortions - mean if vigilantes can take matters into their own hands? What moral standing do these intruders have to interject themselves into other people's painful decisions?
The balance of the federal system - states' rights vs. rights of the central government - is indeed delicate, but that so many of these protest groups are organized nationwide is another argument for a federal remedy, just as federal marshals were once needed to integrate schools in the South.
Abortion is a polarizing issue, one that forces us artificially into a yes-no choice when our hearts are really somewhere in the middle. The centrist coalition-builder who has just taken up residence in the White House got it right on the campaign trail when he said abortion should be safe, legal - and rare.
The new Congress can be expected to take up legislation to nullify the effects of the Bray decision. But in the interim, for a Supreme Court ruling to call into question a decision that should have been long since settled is to be regretted.