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Klan act offers no shelter to abortion clinics.

Constitutional differences between race and class discrimination have been clarified by Justice Antonin Scalia and muddied by Justice John Paul Stevens. The two jurists were on opposite sides in Bray v. Alexandria Women's Health Clinic, a case involving the rights of antiabortion protesters to demonstrate outside an abortion facility.

In a 5-4 vote Jan. 13, with Scalia writing for the majority, the Supreme Court ruled that there are "common and respectable reasons" for opposing abortion and that protests at the Alexandria, Va., clinic were not equal to discrimination against women. A federal law, the Ku Klux Klan Act of 1871, prohibits conspiracies to deprive "any person or class of persons of the equal protection of the laws."

Because only women can have abortions, argued the National Organization for Women's Legal Defense and Education Fund and citing the 1871 law, obstructing access to a clinic is a class-based action against women.

That would be persuasive, except that women -- assuming broadly, as NOW did, that they are a class in the first place -- are anything but united on opposition to abortion. Many of those arrested at clinics are women. "Men and women," wrote Scalia, "are on both sides of the issue."

The 1871 law focused on race discrimination. It was stretching it to equate some civilly disobedient right-to-lifers with hooded white supremacists with lynching and murder on their bigoted minds. Yet stretching is what Stevens did when writing his dissent: "The case involves no ordinary trespass, nor anything remotely resembling the peaceful picketing of a local retailer. It presents a striking contemporary example of the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Klan Act of 1871 and gave it its name."

Scalia's argument -- balanced and well-reasoned -- doesn't leave abortion-seeking women unprotected. Demonstrators who trespass, harass or disrupt can be arrested and removed by local or state police, not federal marshals. "Trespassing upon private property," wrote Scalia, "is unlawful in all states."

Relying on an 1871 law suggests desperation by the operators of abortion clinics. If they think an injustice is being done and federal protection is required, Congress is the place to remedy it. Bills are to be introduced.

As legally correct and precise as Scalia's opinion might be, it was ludicrous for Operation Rescue to crow that this case was a victory for itself and others who blockade clinics. A lawyer for Operation Rescue -- the 7-year-old organization that claims to "rescue" fetuses -- said the ruling "gives a stamp of legitimacy to the pro-life movement."

That's fanciful thinking. The pro-life movement was legitimized long before Randall Terry of Operation Rescue took to the streets with his two-bit moralizing and pompous self-importance. He typifies the politics of confrontation, which delusionally believe that harassing women entering abortion clinics is effective in protecting unborn life.

If Terry or any of his street gang has evidence that their scare tactics are persuading harassed pregnant women to change their minds, then that information ought to be dispensed along about now. Assuming grandly that abortions actually are being canceled, how do the shouting and law-breaking rescuers help mothers and babies after the birth and into the child's adulthood?

Until Operation Rescue becomes identified with the wing of the pro-life movement that truly and consistently does value life -- by providing long-term financial and emotional support for women who otherwise would have had abortions -- it deserves to be ranked as a fanatical nuisance group. Anything decent it can take credit for has been accidental compared with the emotional battering inflicted on the often frightened and lonely women braving a mob to enter a clinic. Abortion destroys a fetal life, but that doesn't justify harming the carrier of that life.

A rescue operation is needed all right: rescuing Randall Terry and friends from their conceit that they are part of the prolife solution.
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Title Annotation:Column; rights of pro-life protesters
Author:McCarthy, Colman
Publication:National Catholic Reporter
Article Type:Cover Story
Date:Feb 5, 1993
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