Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, January 19, 1993 TAG: 9301190317
SECTION: EDITORIAL PAGE: A-6 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
BLOCK THE BEHAVIOR, NOT THE BELIEF
AN 1871 civil-rights statute, the Supreme Court said last week, can't be used by federal judges to stop protesters from blockading abortion clinics. In fixing the law, the new Congress should mend carefully. It should keep in mind that:
The ruling is less important than many on both sides of the abortion issue have made it out to be.
In distinguishing between racist violence and confrontations stemming from differences of opinion, the court majority had a point.
Keep in mind what the ruling did not do. It did not alter the Roe vs. Wade abortion-rights precedent. It did not legalize the blockading of clinics or assaults on their staff and patients. It did not overturn all laws allowing for federal intervention in such instances. It did not say that Congress can't pass a law for federal judges to use in stopping clinic blockades.
Blockades and assaults remain illegal under state and local laws. When state or local authorities won't act, the president still can order federal protection of citizens whose rights are in jeopardy. When state officials are overwhelmed by massive lawlessness, they still can seek federal law-enforcement assistance.
No longer, however, can the anti-conspiracy provisions of the 122-year-old measure - designed to protect black freedmen in the South during Reconstruction - be used by victims to ask directly for federal-court intervention to protect abortion clinics and patients from groups such as Operation Rescue.
Where state and local authorities are able and willing to enforce the law, the ruling has little practical consequence in any case. But the 1871 law has been useful - as it has in more traditional civil-rights cases not affected by last week's decision - in bringing federal authority to bear where state and local authorities have proved unable or unwilling to do the job.
Critics have assailed the reasoning in the court majority's opinion, written by Justice Antonin Scalia; it argued (among other things) that because not all women favor abortion rights, then women seeking abortions do not qualify as a protected class under the meaning of the 1871 measure.
One need not endorse Scalia's reasoning, though, to recognize freedom-of-expression dangers lurking in any federal effort to single out one specific viewpoint for special law-enforcement attention.
Laws already on the books permit arrest of someone blocking access to a public facility. Should a greater penalty be attached to this behavior if the actors happen to be conscientious protesters who believe that abortion clinics are killing babies?
Moreover, "conspiracy" is a notoriously slippery concept. It is at least theoretically possible, for example, to fix a greater punishment for planning a crime that's never committed than for actually committing the crime.
The Supreme Court's ruling has left a gap in protecting citizens' rights that Congress may wish not to ignore. But in deciding whether and how to plug the gap, the new Congress should be careful that behavior is kept separate from belief, and from the expression of belief in ways short of blockades and assaults that deny others their rights.
It is the misbehavior that should be punished, not the viewpoints of those who misbehave.