TIME: Almanac 1993/TIME Almanac 1993.iso/time/081991/0819104.000

Text File | 1992-08-28 | 5.5 KB | 116 lines

                                                                                NATION, Page 22

ABORTION

The Feds vs. a Federal Judge


A U.S. court bars pro-lifers from obstructing Wichita clinics,
but the Justice Department sides with the demonstrators

JOHN ELSON -- Reported by Julie Johnson/Washington and Bud Norman/
Wichita


    "They should say farewell to their family and bring their
toothbrush, and I mean it, because they are going to jail." The
author of that hardball warning is -- or was until recently --
a churchgoing Roman Catholic. Like several other public figures
of the faith, notably New York's Democratic Governor Mario
Cuomo, federal District Judge Patrick F. Kelly, 62, believes
that his personal views on abortion, which he refuses to
disclose, should not affect his responsibility to enforce the
law of the land. Meaning, on this issue, Roe v. Wade. The
judge's determination to stop pro-life activists from closing
three abortion clinics in Wichita last week led to threats on
his life and a confrontation with the Justice Department. The
explosive, passion-stirring legal battle may take the U.S.
Supreme Court to resolve.

    And Wichita may never be quite the same. Tucked
comfortably away in the middle of America's "flyover country,"
this conservative, image-conscious city (pop. 304,000) prefers
to resolve its internal disputes -- which customarily involve
school-board squabbles or debates over nude dancing in bars --
away from the glare of media attention. Thus there was some
local discomfort in mid-July, when Operation Rescue, an
aggressive antiabortion group based in Binghamton, N.Y., set up
blockades outside three local clinics; one of them is among the
few that perform late abortions. TV cameras soon followed, since
the protests turned out to be anything but passive. As they have
done in other cities, the Operation Rescue vigilantes physically
tried to prevent employees and patients from entering the
clinics, harassing them all the while with slogans like
"Abortion stops a beating heart."

    As tensions rose, two of the clinics petitioned Kelly to
stop the blockades, basing their legal argument on sections of
an 1871 law popularly known as the Ku Klux Klan Act. Although
the act was initially designed to protect freed slaves from
intimidation by Southern whites, some federal courts have ruled
that it may also be used to shield women seeking abortions from
pro-lifers' wrath. With this as precedent, Kelly on July 23
enjoined Operation Rescue from blocking entrance to the clinics.

    Hundreds of pickets have ignored the ruling, and more than
2,000 arrests have been made. Many protesters have been hauled
off more than once. Early last week Kelly ordered federal
marshals to get tougher with the demonstrators and issued his
jail-or-else warning. In support, abortion-rights advocates
outside one of the clinics began to wave toothbrushes at
Operation Rescue volunteers. Meanwhile, the judge accepted
protection from federal marshals: anonymous threats had been
phoned and mailed to his office and home. "This has been the
most awkward and stressful time of my life," Kelly said. "It's
scary."

    Adding to his burden was an unexpected intervention by the
Department of Justice. While Operation Rescue lawyers asked the
10th U.S. Circuit Court of Appeals to vacate Kelly's
antiharassment injunction, the U.S. Attorney for Kansas, Lee
Thompson, filed an amicus curiae brief contending that federal
courts had no jurisdiction over the case. Kelly, in an almost
unprecedented TV interview on ABC's Nightline about the
proceedings, angrily charged the Justice Department with giving
its "imprimatur" to "a license for mayhem."

    Administration officials denied siding with the pro-lifers
on abortion's legality. Instead, they said, they were merely
arguing some finer points of law. Because Operation Rescue
targets all those involved in the abortion process, male as well
as female, the KKK Act's protection of a class of persons
suffering discrimination is not involved. In addition, says
Justice, the clinics' proper avenue of redress was in state
courts, not federal ones. "Nothing drove this other than
consistency," said a former White House official, noting that
the Justice Department had filed a similar brief in another
case, now before the Supreme Court, involving Operation Rescue's
tactics at abortion clinics in northern Virginia.

    Although that case will have no direct impact on Roe v.
Wade, there are four disputes pending in the lower courts that
pro-lifers hope the Supreme Court will eventually use to either
overturn or further limit the landmark 1973 ruling. One of them
is Louisiana's tough new antiabortion law, which was struck down
by a federal district judge last week.

    Pro-choice advocates agreed with Judge Kelly's outraged
view that Washington's meddling in the Wichita case was, as he
put it, "political." Having already made its point in the
Operation Rescue case before the Supreme Court, the
Administration had no new legal arguments to make other than,
apparently, to underline its already well-known distaste for
Roe. Vacationing in Kennebunkport, Me., President Bush was asked
whether the Justice Department's actions condoned the pro-life
pickets' defiance of court orders. Not so, he answered:
"Everyone has the right to protest, but it ought to be done
within the law." Fair enough. But there is not much doubt about
which law the Administration would like to see changed.