An article and headline yesterday about harassment of abortion patients said the Justice Department would prosecute only government officials for such harassment. The department also will consider prosecuting persons who act jointly with officials to harass women seeking abortions.
The Justice Department will not use federal civil rights laws to prosecute those who harass women seeking abortions unless the harassment is by federal, state or local government officials, Deputy Assistant Attorney General Victoria Toensing told a House subcommittee yesterday.
Toensing, an official in the Criminal Division, said the right to abortion falls under the 14th Amendment's protection against government interference in individual rights rather than under federal civil rights laws -- an interpretation accepted by many legal scholars although not specifically stated in the Supreme Court's 1973 Roe v. Wade abortion ruling.
A lawyer for the Center for Constitutional Rights in New York City countered that the department is "not only authorized, but is, indeed, duty-bound" under the 14th Amendment and federal law to prosecute those who interfere with a woman's exercise of her constitutional right to an abortion.
"The Department of Justice has ample basis to act and we have ample reason to fear their inaction," said Rhonda Copelon, the lawyer for the Center for Constitutional Rights and an associate professor at City University of New York Law School.
The testimony before the subcommittee on civil and constitutional rights raised issues that have been overshadowed by a yearlong debate over whether bombings of abortion clinics are terrorist acts and whether such bombings should be investigated by the Federal Bureau of Investigation or the Bureau of Alcohol, Tobacco and Firearms. The Justice Department maintains that, by statute, such bombings are not acts of terrorism and therefore fall under the BATF's jurisdiction.
The focus yesterday shifted from bombings to other forms of harassment: blocking entrances to clinics and parking lots, flinging fake fetuses at patients trying to enter clinics, shoving and threatening patients, making threatening phone calls, and banging on clinic doors and windows while women are having abortions.
Such harassment can be prosecuted under local and state laws, but "the penalties are not substantial and what goes unpunished is the violation of civil rights," Copelon said.
The penalty for a violation of the criminal conspiracy section of the federal civil rights statute is up to 10 years in prison, while the penalties for breaking local laws -- such as trespassing, invasion of privacy and assault -- can range from a day in jail to a few years in prison.
The federal civil rights statutes state that it is a crime for "two or more persons" to conspire to interfere with a constitutional right or a right found in federal law.
The Justice Department, civil rights groups and women's groups agree that women have a constitutional right to abortions; the dispute is over the interpretation of the criminal conspiracy section.
The Justice Department maintains that harassment ordinarily is a matter for local prosecutors -- a position that is "crabbed, narrow and unimaginative," according to Leslie Harris of the American Civil Liberties Union.
"The Constitution guarantees one against the deprivation of life, liberty and property without due process of law," said Justice's Toensing. "But ordinarily a kidnaper, robber or murderer has not violated his or her victim's constitutional right, for the right to life, liberty and property is protected only against deprivation by the government and its officers."
Toensing said the department, in keeping with past policy, has asked the FBI to investigate such a case -- in which a woman accompanying a friend to a New York abortion clinic said she was assaulted by an offduty police officer participating in antiabortion picketing.
Copelon disagreed and said the department should prosecute harassment of women traveling to abortion clinics in another state -- "whether they're stopped on I-95 or right in front of the door" -- because the right to travel is acknowledged in a 1966 Supreme Court case, U.S. v. Guest.
Toensing said the department could not prosecute cases of travel interference because "one has to have intent to interfere with interstate travel; the intent can't be peripheral, it can't be indirect."
Copelon responded that "the specific intent is there. They [those who harass] want to stop women from getting to the clinics and having abortions."