STARTING today, anti-abortion activists affiliated with Operation Rescue will unleash a series of protests and rallies in seven cities. The success or failure of the 10-day "Cities of Refuge" campaign, however, may be determined not in the streets but in courtrooms.
Pro-choice groups are seeking injunctions and laws to keep the protesters away from clinics and doctors' homes. If their requests are granted, the protests will flop. But in the legal arena, anti-abortion forces appear stronger than they have in years.
That's because the United States Supreme Court ruled in January that federal courts cannot use an 1871 civil rights law known as the Ku Klux Klan Act to issue injunctions barring blockades of abortion clinics. The act has been one of the pro-choice groups' main legal weapons.
Pro-choice groups also have tried to use federal racketeering laws against Operation Rescue. The Supreme Court has agreed to decide that issue next year, and is more likely to rule in favor of pro-choice groups if, as expected, Ruth Bader Ginsburg replaces retired Justice Byron White. But in the meantime, no new federal injunctions are likely, although at least a dozen remain in effect.
"At the moment, we're severely handicapped because we don't have available to us the section of the KKK Act that the court struck down," says Joanne Hustead of the Women's Legal Defense Fund in Washington.
Pro-choice groups are left to seek state protection. Based on trespassing and harassment laws, a number of state judges have issued injunctions limiting Operation Rescue protests.
Many cities also have passed laws to deal with anti-abortion rallies. Two suburbs of Cleveland last week banned picketing directed at specific residences - a tactic commonly employed by anti-abortion activists. The Philadelphia and San Jose, Calif., city councils passed laws making it illegal to prevent patients from entering abortion clinics.
The police forces in those cities and others (Minneapolis-St. Paul, Dallas-Fort Worth, Jackson, Miss., and Melbourne, Fla.) targeted by Operation Rescue during the next 10 days are gearing up to enforce those statutes. Cleveland even has converted its convention center into a jail capable of housing hundreds of detained anti-abortion activists.
But state laws are not as effective in limiting Operation Rescue as federal actions.
First, some state statutes may be struck down by the courts. Clinic-access laws aimed at preventing physical blockades, like those passed in Minnesota or Maryland, stand the best chance of being upheld. But "bubble" laws creating a zone around clinics that protesters may not enter are more likely to get into constitutional hot water.
Jim Henderson, a lawyer at the American Center for Law and Justice, says his group is challenging or will challenge bubble laws in North Dakota, Colorado, and Santa Barbara, Calif. "Those laws are grotesque," he argues, because they unfairly limit pro-testers' First Amendment rights.
State laws are also less effective because they carry milder penalties than federal racketeering and civil rights statutes. And pro-choice groups say that states and cities cannot cope with massive anti-abortion protests without federal help. "There's been a deliberate attempt by Operation Rescue to flood courts and overwhelm local law enforcement," Ms. Hustead says.
Pro-choice groups will be able to appeal to federal courts again if Congress passes the Freedom of Access to Clinic Entrances Act. Designed to overturn the Supreme Court's January decision, this bill would impose heavy fines and court sentences on anyone convicted of impeding access to clinics. The Senate version, sponsored by Edward Kennedy (D) of Massachusetts, passed the Labor and Human Resources Committee June 23 and is now awaiting a floor vote. The House version, written by Rep. Charles Schumer (D)
of New York, has not been taken up in committee yet. Attorney General Janet Reno has endorsed the legislation.
But even if it is passed, the statute might encounter difficulties in the courts. Vincent McCarthy, an attorney for Operation Rescue in New Milford, Conn., argues that the bill is unconstitutional because it's not "content neutral" - it targets only anti-abortion protests.
Deborah Ellis, director of the National Organization of Women's Legal Defense and Education Fund in New York, counters that the clinic-access bill is similar to a Wisconsin "hate crime" law upheld by the Supreme Court last month. That law meted out enhanced penalties for "discriminatory" conduct.