The ACLU is high on the enemies' list of the Right-to- Life legions. The charge is that it utterly ignores the civil liberties of the unborn, not to speak of their humanity. On the other hand, the ACLU regards pro-lifers as being in contempt of a woman's right to control her own life. The ACLU brandishes Roe v. Wade; the opposition reminds one and all of the short life of the Dred Scott decision.
Yet there can be, after all, a common bond -- as in the recent victory won by the ACLU and the Right-to-Life of Maryland Educational Fund against Montgomery County. The battlefield was the county's Ride-On bus system. When this all started in February of last year, space was provided in the buses for paid commercial and political advertising as well as for free public-service announcements by nonprofit community service groups.
Right-to-Life of Maryland wanted to place a free ad and was told that it qualified. In March, however, when county officials saw a mock-up of the ad, they changed their minds. The message in dispute is headlined: "If Wombs Had Windows." The text below notes that "every eight-week-old baby has a heartbeat, has brainwaves, has fingerprints, will grasp objects, responds to touch, swims in fluid." There is also a photograph of an eight-week-old fetus as well as a warning to pregnant readers: "Don't Drink; Don't Smoke."
The ad was refused free space on the ground that it was "political." Yet the bus system had carried a free ad for the Nuclear Arms Freeze Task Force of Maryland. Montgomery County seemed to be in contradiction with itself. Moreover, since its officials had already made a public forum of its buses -- allowing all kinds of expression, paid and free -- it could not, under the First Amendment, carry some political or social ads and not others. Or so the ACLU of the National Capital Area claimed on its entrance into the case.
Meanwhile, Montgomery County apparatchiks were devising a defensive strategy against the persistent onslaught of the ACLU and the pro-lifers. They came up with a set of "draft advertising guidelines," which allowed them to banish any ad that does not "reflect a high level of good taste and decency" and "any item which might be objectionable to a substantial segment of the community." The first criterion would be an odds-on favorite to win a contest for overbreadth and vagueness. The second barrier is nakedly majoritarian, and is thereby subversive of the First Amendment.
Yet another reason was advanced for keeping the objectionable ad off the buses: In June, the petitioners were told that the phrase, "If Wombs Had Windows," was a "scare headline." But the very same transit service carried a nuclear arms freeeze ad with the caption, "Don't Wait Until the Day After." There was also a picture of a scared child, half-covered by a dark cloud. By contrast, the fetus swimming in the window seemed rather serene.
By September, it had been decided that Right-to-Life of Maryland could buy space for $65 a month on the bus system but did not qualify for free space. The theory seemed to be that passengers with fragile sensibilities would be less terrified by the headline, "If Wombs Had Windows," if it were not brought to them as a public service.
At last, the Montgomery County attorney told the apparatchiks that it looked as if the Constitution was indeed on the side of this odd couple demanding space for the unborn. A settlement was reached by which the Right-to-Life ad will be posted, without charge, on the Ride-On buses from this month through September; and Montgomery County will pay court costs, legal fees and other expenses connected with the case up to a limit of $25,000.
The victory, though, is not quite what it seems. As of last October, the county figured out that it could avoid a lot of trouble if it simply stopped presenting a public forum on its buses. Now, only ads by Montgomery County government agencies are posted. Nobody else can buy space or get space free. "It's too bad," a county official told me. "The previous policy benefited a lot of people, but this way, we won't have any controversy."
So, as its nine-month run goes on, the fetus in the window will be the only non-government ad on the Ride-On buses. After September, the government alone will be speaking to the passengers. "I guess you might say," an ACLU lawyer told me, "that we won the battle and lost the war."
Those who insist that it ain't over until the fat lady sings gravely underestimate the capacity of the apparatchiks to change the name of the game.