IN THE FUROR over the possibility that the U.S. Supreme Court may overturn Roe v. Wade, another abortion case before the high court has been almost forgotten.
The case, Bray, Operation Rescue et al v. Alexandria Women's Health Clinic et al, has street-level significance for abortion clinics, which is where most women obtain abortions. While the upcoming Pennsylvania case addresses a woman's legal right to an abortion, the Bray case deals at the practical level of a woman's ability to get through the clinic door.
What the clinics stand to lose is the protection of federal law in fighting protesters. If they lose that, they lose access to federal courts and their far-reaching powers -- injunctions, costly fines and jail sentences -- to quash protests by antiabortion groups.
And the consequences of that?
"It will be a green flag to antiabortion activists across the country," says Barbara Radford, executive director of the National Abortion Federation, a group that represents clinics and doctors who perform abortions. "I don't think clinics have begun to see antiabortion activity like they are going to see if we lose."
Lawyers for the antiabortion group Operation Rescue agree that without the Damoclean sword of federal court action over their necks, recruitment for their cause may be easier. But the biggest gain, they say, would be forcing clinics to base their claims against antiabortion protesters on state laws, which vary across the country.
"It would be considerably more inconvenient for abortion businesses to not have one federal statute but to have to open up the state lawbooks in 50 states," says Walter Weber, an attorney with Free Speech Advocates, a group of lawyers that represents the First Amendment rights of Operation Rescue members.
Operation Rescue, the Lambs of Christ and a few other antiabortion groups use civil disobedience techniques to stop abortions. The most common tactic is to form a human blockade outside an abortion clinic. Protesters sometimes chain themselves together with bicycle locks or to their cars to make it harder for police to remove them. Sometimes the protesters pour glue into door locks, write antiabortion slogans on clinic property or strew nails on a clinic's parking lot. On occasion, they have entered clinics and destroyed equipment used for abortions.
Between January 1987 and December 1990, 419 clinic blockades resulting in 26,000 arrests were reported to the National Abortion Federation. Last summer more than 2,600 arrests were made in Wichita alone during a six-week period when Operation Rescue blocked the doors of Women's Health Care Services and other local clinics.
For a clinic's staff and patients, the experience of a blockade is at best unsettling and at worst terrifying.
Rachel Atkins, director of the Womens Health Center in Burlington, Vt., has vivid memories of Nov. 29, 1988, the day when Operation Rescue activists moved a park bench in front of the clinic's main door and chained their necks to it. Six months later, they cut the clinic's telephone lines as well as chaining themselves together and to clinic furniture. It took the Burlington Fire Department more than six hours to cut all the locks, according to court papers.
On both occasions, there were patients in the clinic for routine gynecological services as well as abortions. Atkins, who was knocked over briefly when protesters rushed into the clinic, recalls, "There were people yelling and screaming at me that I was a murderer, a baby-killer."
For Kathy Maxwell, the encounter with Operation Rescue was shaking. She was pregnant with her second child when she went to her doctor's office in Novi, Mich., last March for the results of her amniocentisis, a part of normal pre-natal care for a 37-year-old woman.
When she arrived, the lobby was filled with protesters who blocked the elevator. They said, " 'I'm sorry the building is closed. You don't want to see the doctor. He kills babies,' " she recalls. After pushing and being pushed, she went downstairs and approached the policeman. "I said to him that I had a doctor's appointment, and he said, 'There's nothing I can do about it. You'll have to reschedule it.' "
What women seeking abortions stand to lose in the Bray case is civil rights protection from abortion protesters. The law in question is known as the Ku Klux Klan Act and was drafted during the Reconstruction period to protect the constitutional rights of blacks.
For several years, federal district courts and courts of appeal have interpreted the Klan law to cover women trying to enter abortion clinics blockaded by antiabortion protesters. It was the law invoked last summer in Wichita by U.S. District Judge Patrick Kelly when he issued an injunction to stop a six-week clinic blockade by Operation Rescue.
Both antiabortion activists and abortion rights supporters want to associate their cause with the rich tradition and vocabulary of the civil rights movement, and the federal judiciary's interpretation of the Ku Klux Klan Act has given abortion rights groups a clear claim to the civil rights mantle. For Operation Rescue members, who also believe their work follows in the tradition of the civil rights movement, it has been an insult to be viewed as the modern-day equivalent of the Klan.
"It's not that doctors are being lynched here. We are talking about people who block sidewalks," says James Henderson Sr., an attorney with Christian Advocates Serving Evangelism, which represents Operation Rescue in this case. "It is my intention to see that the mistaken, unfortunate and inappropriate odor of discrimination is lifted from Operation Rescue."
In Bray, Operation Rescue is arguing that it does not discriminate against women but seeks to stop everyone entering an abortion clinic -- doctors, nurses, staff and patients. The Bush administration filed a friend-of-the-court brief on behalf of Operation Rescue, arguing that no violations of federal civil rights law are involved. Government lawyers said it would be "fanciful" to suggest that Congress had in mind gender-based discrimination and abortion clinics in the 1870s when it drafted the Ku Klux Klan law.
If the Supreme Court decides against the clinics in Bray, clinics almost certainly would have to go to state courts to stop blockades. Clinics fear that since many state judges are still elected, they are likely to be sensitive to a local community's abortion sentiment -- and therefore could be less likely, especially at the start of a blockade, to issue injunctions or levy heavy fines or jail sentences against demonstrators. "When you want to enforce a controversial decree," said Burt Neuborne, a law professor at New York University, "the best place to do it is still the federal courts."
Lawyers for antiabortion groups say that state courts could turn out to be just as firm as federal judges. The difference, protesters feel, is that they will be tried more fairly under trespass proceedings. Protesters have objected to the fines of $50,000 and more that were levied against them in Wichita for defying the injunction Kelly issued under the Klan act.
From the clinics' standpoint, ending up in state court would also make it more expensive and logistically difficult to get the same protections that they do now from the federal courts. If the Virginia clinics named in the Bray case had been seeking injunctions in state court, they would have had to hire lawyers to go into half a dozen courtrooms to get injunctions with the geographic scope of the one issued by a federal judge.
"If the Supreme Court says there's no protection here in the civil rights law, it feels like we're being thrown into the cold," says Elaine Metlin, a Washington lawyer who works with abortion clinics through the National Abortion Federation.
Operation Rescue lawyers, meanwhile, agree that the smaller jurisdictions will work to their advantage. "If we win," says Operation Rescue's Henderson, "this will be a clinic-by-clinic battle."
Alissa Rubin is an Alicia Patterson fellow, studying the abortion issue.