The Supreme Court announced unexpectedly last week that it will not rule this term on whether federal judges may use an old civil rights law to stop right-to-life activists from blockading abortion clinics. Speculation in Washington is that the court is split 4-4 on the case. Justice Clarence Thomas was not yet on the bench when the case was argued. The decision not to rule means the case will be re-argued before the full nine-member court next term.
If four justices are actually in disagreement with the rulings made by a district court judge in Alexandria. Va., and by three court of appeals judges in Richmond, then the Supreme Court is in worse shape than we thought. This is a pretty clear-cut matter - in the eyes of even conservative judges.
In fact, the lower court judges in the case are not only conservatives, they are probably judges who share the Bush administration's anti-abortion views. The Justice Department in the 1980s was famous for seeking like-minded lawyers for the bench at every level. Views on abortion may or may not have been a pure "litmus test" for appointment, as was often charged, but you can be sure that few, if any, avowed pro-choice candidates got very far.
The district court judge and all three appellate judges in this case are Reagan appointees. They were following the law, the Constitution and precedent, not their social or political leanings, which is what Supreme Court justices should do, too.
The case involved Operation Rescue's efforts to shut down abortion clinics in the Washington, D.C., area. The trial judge issued an injunction against that activity, saying federal law forbids private citizens from "conspiring" to "deprive" women of traveling to a place in pursuit of a lawful activity. Such travel is a constitutionally protected right, the judges all agree. In 1989, when the case arose, so was abortion - and it still is.
As a practical matter, all the Supreme Court's delay probably means is that, with the issue left unsettled, Operation Rescue will put other federal judges to the test this summer. Most judges in this and other circuits have ruled that demonstrators may be prevented from trying to shut down clinics by force. We assume that pattern will continue.
Same "pro-life" leaders have said such rulings are a violation of their constitutional right to free speech. Freedom of speech is, of course, at least as constitutionally protected as travel for lawful purposes. Indeed, the district court and circuit court judges refused "pro-choice" groups' requests for an injunction that banned picketing and speaking against abortion at abortion clinics. The Constitution protects "persuasion" in these situations, the judges agreed, but not "coercion."
This is not a case of a questionable right (to travel) or of rights in conflict (travel vs. free speech). The Supreme Court should have said so.