Washington. -- One of the most mendacious chapters of the Reagan administration was the Bob Jones University episode of 1982. That was when the Justice Department reversed a long-standing government policy denying tax-exempt status to private schools that exclude blacks. Although the reversal was in response to a campaign by Southern conservatives, the administration piously insisted that its action implied no endorsement of tax exemptions for racist schools. They would sincerely like to deny these tax exemptions, Reagan administration officials maintained, but the law gave them no such authority. The Supreme Court soon ruled otherwise, 8-1.
The current controversy over Operation Rescue is the Bush administration's Bob Jones case. As in that earlier disgrace, the president and his associates are pandering to extremists while pretending with wide-eyed innocence that they are merely upholding the technicalities of the law.
Operation Rescue is the anti-abortion group that physically shuts down abortion clinics by blocking the entrances, lying under cars, surrounding and heckling patients and so on. Last month in Wichita, Kansas, Operation Rescue shut down three abortion clinics. A federal judge ordered the group to stop and threatened to have its leaders arrested if they didn't. The Bush Justice Department then entered the case on the side of Operation Rescue, saying U.S. District Judge Patrick Kelly had no authority to make this order.
Attorney General Richard Thornburgh, on his way out the door to run for the Senate, claimed the Justice Department action had nothing to do with abortion, which is still for the moment a constitutional right, or with support for Operation Rescue's tactics, which are uncontestably illegal. After a day of bad press, President Bush even remarked that protests ought to be done "within the law." But what good is the law if it can't be enforced, and what good are constitutional rights if they can't be protected?
The power of federal judges to restrain Operation Rescue will be debated at the Supreme Court next month in Bray v. Alexandria Women's Health Clinic. In this case, too, the Justice Department has intervened on the side of Operation Rescue. At issue is a long tangle of constipated legal prose known as the Klu Klux Klan Act of 1871. The Klan Act was originally intended to authorize lawsuits against Klan persecution of blacks in the Reconstruction South, but it speaks more generally of conspiracies to deprive any person or class of persons of the "equal protection of the laws."
In their briefs, Operation Rescue and the Justice Department offer half a dozen reasons why the Klan Act may not apply in this situation. Not all of them can be dismissed out of hand. There is a question whether the Klan Act protects any groups other than blacks. There is a question whether the group being oppressed in this case should be defined as "women" or as "women seeking abortions," and whether the latter category is acceptable. One side says: not all women want abortions, or even support abortion. The other side replies: not all blacks tried to vote back in 1871, but the law protected those who did.
The Justice Department emphasizes, as if it were a virtue, that Operation Rescue does not merely aim to oppress women: "Petitioners direct their actions at anyone, whether male or female, who assists or is involved in the abortion process -- doctors, nurses, counsellors, boyfriends, husbands and family members, staff and others." Oh well, in that case go right ahead. . . .
There is a question whether the law, which refers to suing fodamages, authorizes judges to issue injunctions as well. Since most constitutional rights protect you only against deprivation by the government itself, not by private individuals, there is a question whether this limit also applies to the Klan Act. Lower courts have avoided this particular complication by holding that Operation Rescue is violating not the right to choose abortion but the right to interstate travel, which does not require government involvement. But then there is a question whether the mere fact that many clinic patients come from out of state is enough to establish that this right is being violated.
My own conclusion, after reading the briefs, is one of impatience. Is it really possible that federal judges lack the authority to protect citizens from organized mobs systematically denying them the ability to exercise their constitutional rights? If so, the law ought to be changed.
President Bush does not believe in abortion rights, or claims noto. But as president he cannot openly endorse mob action to deprive people of rights that are still the law of the land. So he and his administration resort to technicalities. The solution is simple. The Klu Klux Klan Act is only a statute, not a constitutional provision. Congress ought to pass a new statute, stripped of all the complications. If Mr. Bush was presented with the bald proposition, in the form of a bill, that the federal government ought to be able to protect people in the exercise of their federal constitutional rights, would he dare to veto it? If the Democrats were a bit faster on their feet, they could have a bill like this on Mr. Bush's desk in a week. It would leave him in a bind he truly deserves.
:0TRB wrote this commentary for The New Republic.