High court conservatives are hostile in abortion clinic case Court split over use of civil rights law


WASHINGTON -- A women's-rights lawyer struggled yesterday, seemingly in vain, to round up enough Supreme Court votes to assure that federal law can be used to stop abortion foes from blockading clinics.

In oral arguments before the court, Deborah A. Ellis of New York City, director of the National Organization for Women's Legal Defense Fund, tried to gain support by likening the plight of pregnant women entering blockaded clinics to that of black school children facing a wall of protesters on the sidewalks at integrated schools.

But her half-hour argument ran into intense, sometimes openly hostile questioning from several justices -- including one whose vote she apparently must have in order to win, Justice Anthony M. Kennedy.

Ms. Ellis repeatedly referred to the "mob characteristics" of clinic blockades.

She tried several times to use the court's limited abortion rights ruling last term to shore up her claim that women need the umbrella of an 1871 federal civil rights law as they try to get into beleaguered clinics.

Sharply criticizing the blockade actions of the anti-abortion group "Operation Rescue," the clinics' attorney accused that group of putting on a "nationwide, systematic campaign to use force to deny women the protection of law."

The Supreme Court appears to be split deeply on whether an 1871 civil rights law gives women a right to enter an abortion clinic without being challenged and taunted by militantly anti-abortion groups.

The justices took up that question last term, but apparently had trouble deciding it, and ordered a second hearing on a test case from Alexandria, Va.

Justice Clarence Thomas, not on the court when the case was first heard a year ago, sat silently throughout yesterday's hour-long hearing.

If the court was divided 4-4 on the case last term, his vote could be decisive.

Although Mr. Thomas has said nothing publicly to indicate his views about the issue, it is speculated widely that he will not side with Ms. Ellis' plea.

A justice with whom Mr. Thomas often is allied, Antonin Scalia, was Ms. Ellis' most aggressive challenger,although he remained courteous.

Three justices, whose support the abortion clinics need in the case, remained silent.

They are Harry A. Blackmun, Sandra Day O'Connor and David H. Souter. Only liberal Justice John Paul Stevens asked questions that seemed to show sympathy for Ms. Ellis' legal claims.

In contrast to the testing Ms. Ellis faced, the lawyers for Operation Rescue and for the Bush administration, which is supporting Operation Rescue's view of the law, encountered little sharp questioning.

Jay Alan Sekulow of Washington, the lawyer for Operation Rescue, argued that there is no need for federal legal protection for clinics, since they are protected by state anti-trespass laws.

He said repeatedly that clinic blockades are not aimed at women, but only at abortion, and thus federal civil rights law that protects people from interference with their rights should not even apply.

Deputy U.S. Solicitor General John G. Roberts, Jr., challenged Ms. Ellis' claim that clinic blockades are in fact aimed at women seeking abortions, not at abortions.

That logic, Mr. Roberts said, "doesn't hold up." He said the same argument could be made for using federal civil rights law to protect Indians who want to fish in a river without being interfered with by "ecologists" seeking to protect fish.

The ecologists, he said, have nothing against the Indians, only against the fishing.

Operation Rescue, he said, is not trying to interfere with clinics to violate women's rights.

"They are targeting them [women at clinics] not because of who they are, but what they do," he said.

While Mr. Roberts was at the podium, Justice Kennedy asked questions that brought out the fact that local or state officials had not complained they could not handle the situation during the Alexandria clinic blockades.

A final decision by the court is expected sometime next year. So far, the clinics' case is the only abortion dispute the justices have agreed to hear this term.

Copyright © 2020, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad