Abortion clinics lose civil rights protection


WASHINGTON -- The Supreme Court stripped abortion clinics yesterday of most of the protection of federal civil rights law, including the key part used repeatedly against blockades designed to shut them down.

It was a sweeping victory for the most militant elements of the anti-abortion movement and for the Bush administration in its final week in office.

Accepting fully the arguments made by Operation Rescue, with the administration's backing, the court may have gone further than at any time in the 20-year history of abortion rights to remove federal protection for those exercising that right -- a right that the court partly reaffirmed in June. Only local trespass laws, enforced by local police, remain as a limit on blockades.

By a 6-3 vote, the court ruled that the key part of an 1871 civil rights law, the so-called Ku Klux Klan Act, does not apply to efforts by groups such as Operation Rescue to close abortion facilities by staging mass protests.

By a separate 5-4 vote, the court dropped an unusually strong hint that if the clinics try to use another part of the 122-year-old law against blockaders that would be unsuccessful, too. It stressed, though, that it was not making a final ruling on that separate issue.

In a second ruling yesterday, the court unanimously ordered federal judges not to second-guess the Senate when it impeaches a federal judge or other U.S. official. That decision rejected challenges to the most recent impeachment trials, which removed two federal judges from the bench for misconduct. One of them, Alcee Hastings, was a Florida judge and is now now a newly elected member of the House from Miami.

Women's rights groups were outraged at the abortion clinic ruling. Marcia Greenberger, co-president of the National Women's Law Center, said the decision "gives abortion opponents the green light to use abusive and dangerous tactics to shut down abortion clinics without real worry about intervention by the federal government."

Abortion foes were elated. Wanda Franz, president of the National Right to Life Committee, said her group "strongly opposes the singling out of pro-life activists for draconian federal penalties" that do not apply to others who engage in protest actions.

The decision emerged just before next week's 20th anniversary of Roe vs. Wade, the court's original decision establishing a woman's constitutional right to abortion. That anniversary will trigger a new round of protests and counter-protests by the two sides in the controversy.

Among the events planned for next week are demonstrations in Washington by Operation Rescue and other anti-abortion groups protest the inauguration of Bill Clinton, the first president in 12 years who will not be an ally of the anti-abortion movement. Mr. Clinton has been a vocal supporter of abortion rights.

The court's long-awaited ruling on clinic blockades came in a case from Alexandria, Va., that the court had heard for a second time last fall to allow Justice Clarence Thomas,new to the court, to join in a ruling. Yesterday, he sided with the majority on all votes.

The latest decision may not be the last of the bad news from the court for the clinics as the Roe anniversary approaches.

Next week, the court is expected to take some action on a plea by clinics for the right to use federal anti-racketeering law and federal anti-trust law -- both of which allow for tripled damage assessments on violators -- against clinic blockade organizations and their leaders. The court, however, may simply turn aside that plea and allow a lower court ruling, blocking the use of either of those laws by the clinics, to remain intact.

The court's clinic decision, coupled with its refusal in recent weeks to take on any new abortion cases, is expected to put added pressure on Mr. Clinton and on Congress to act to strengthen abortion rights.

Confident that Mr. Clinton will not veto new abortion rights laws, as Presidents Bush and Ronald Reagan regularly did, abortion rights activists will be seeking passage by Congress of a new clinic-protection bill, a new law to make abortion a national right independent of the Constitution and a new law to assure free abortions for poor women under Medicaid.

Yesterday's ruling denying civil rights protection for clinics was based solely on the court's reading of the 1871 law and not on the Constitution, so Congress would be free to overturn it simply by passing a new law. Such a measure will be introduced soon, although it is unclear whether Congress will give that measure the highest priority among all of the abortion bills it will have under review.

Mr. Clinton also is being asked to issue new presidential orders to assure abortion rights, including allowing abortion counseling at federally financed clinics for the poor.

If Congress does not pass a new clinic-protection bill, the clinics will get protection only from state and local police, with no aid from U.S. marshals. There is an outside chance that the president wouldsend in marshals or federal troops if a clinic blockade threatened to overwhelm local police, but that apparently could happen only if a state asked for federal help in keeping order.

Clinics and their lawyers, fearing repeated incidents like that in 1991 in Wichita, Kan., where local police were overwhelmed by anti-abortion blockades at two clinics, wanted the Supreme Court to allow them to use the 1871 civil rights law to collect damages from blockaders and as a basis for federal judges to stop the blockades and call in U.S. marshals.

They argued that blockades are a kind of plot among private groups and individuals to prevent women from exercising their constitutional right to abortion. Because only women can get pregnant and seek abortions, they argued, challenges to clinics are a form of sex discrimination in violation of the 1871 law.

The Supreme Court rejected that theory yesterday.

Justice Antonin Scalia, the court's most fervent foe of abortion rights and the author of the court's main opinion, said that there are "common and respectable reasons for opposing" abortion. He said that opposing abortion "cannot possibly be considered" the same as opposition to women and "does not remotely qualify" for being equated with racism.

That part of the ruling had the full support of Chief Justice William H. Rehnquist, Justice Thomas and Justices Anthony M. Kennedy, David H. Souter and Byron R. White. Justice Kennedy wrote a separate opinion condemning mass violence against clinics but suggesting that presidents had the power -- if invited by governors -- to step in to protect clinics.

Justice Harry A. Blackmun, the author of Roe vs. Wade, and Justices Sandra Day O'Connor and John Paul Stevens dissented on all parts of the abortion decision.

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