A Close Call
By a narrow majority the Supreme Court rejected lower federal court rulings that Operation Rescue had conspired to deprive women seeking abortions of their right to interstate travel. At stake in Bray v. Alexandria Women’s Health Clinic is the scope and application of the first clause of the 1871 Civil Rights Act, also known as the “Ku Klux Klan. Law.” Enacted by the Reconstruction Congress, the law prohibits conspiracies to deprive “any person or class of persons of the equal protection of the laws.” Another part of the statute protects persons against conspiracies “for the purpose of preventing or hindering” states from enforcing the law. The case was argued at the Court in 1991, and re-argued this term.
Writing for the majority, Justice Scalia argued that the abortion clinics in the suit failed to show two things necessary to trigger the application of the Ku Klux Klan Law: (a) that some racial or class-based “invidious discriminatory animus” lay behind the actions of Operation Rescue; and (b) that the abortion right is protected against private as well as official encroachment. On the first point, Scalia argued that the general rubric of “women seeking abortion” is not a qualifying class, and that anti-abortion protesters do not focus in any malicious way upon women by reason of their sex. Opposition to abortion, he said, “cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women.” On the second point, Scalia contended that “the asserted right to abortion… cannot be the object of purely private conspiracy.”
Had this decision gone the other way, there is no question but that Operation Rescue would have been gradually dismantled by jail terms, fines, and law suits. But the Bray case suggests more than a reprieve for Operation Rescue. Perhaps the deeper and more lasting issue is whether all of the laws and institutions of the polity will be made to conform to and support the abortion right. Moreover, if women are a victim class more or less similar to blacks harassed by the Ku Klux Klan, then public and private actions which oppose the feminist agenda in the “culture wars” would stand guilty of “conspiracy.” Indeed, Justices O’Connor and Stevens filed separate dissenting opinions which emphasized the analogy between the plight of contemporary women and black citizens during Reconstruction. Although it is a truism to say that all legal reasoning moves by way of analogy, the Bray case shows the importance of the intellectual struggle over analogies. The extension of the abortion right via the equal protection clause of the 14th Amendment depends upon how the Court fashions the analogies between abortion and other constitutionally protected rights.
For the pro-life movement, Bray is not so much a victory as it is a temporary suspension of disaster. The Court’s vote was five to four, with Justice Kennedy, who had joined the other side in the Casey decision last summer, filing a weak concurring opinion. Given the present alliances of the Court, Kennedy remains the swing vote. Despite her early willingness to examine the abortion right critically, Justice O’Connor has joined the other side. Although Justice Souter concurred in part in Bray, his opinion supports the substance of the suit brought by the abortion clinics. As presently configured, the Court’s consideration of the abortion issue hangs by one vote.
It should be pointed out that insofar as the pro-life movement uses the tactic of civil disobedience, it is still subject to civil and criminal action under local jurisdictions. And, as Justice Kennedy (perhaps too enthusiastically) pointed out, local authorities still have recourse to federal law enforcement assistance, including, upon request, the United States Marshalls Service. On the same day that the Bray decision was handed down, Rep. Charles Schumer (D., N.Y.) and Sen. Edward Kennedy (D., Mass.) vowed to introduce bills to establish federal penalties for people who block access to abortion clinics. Such legislation might be grafted onto the Freedom of Choice Act that is on tap for Congressional debate this year.
Dinkins Day Parade
Despite protests from John Cardinal O’Connor, Mayor David Dinkins has denied the Ancient Order of Hibernians the permit for New York City’s Saint Patrick Day Parade. The city had decided to award the permit to another organization which will use the Saint Patrick’s Day parade more for secular and political concerns, notably protests for gay rights. This decision is not only a slap in the face of Roman Catholics who wish to honor a patron saint, but also a violation of the First Amendment protection of free speech and free exercise of religion.
What the Dinkins administration has in fact done is interfere in a religious observance and regulate its practice in the name of “inclusiveness.” Cardinal O’Connor, speaking during Mass at Saint Patrick’s Cathedral, asked, “will other religiously related activities become equally vulnerable to arbitrary politicization in this land which boasts of its separation of church and state?”
The Hibernians have threatened legal action against the city in the hope of rescinding the new permit issued. Their cause has garnered the support of the New York Civil Liberties Union. Norman Siegel, Executive Director of the Civil Liberties Union, wrote in a letter to the Mayor, “our entire system of free expression rests upon the proposition that government must remain neutral with respect to the expressive activities of its citizens.” Mayor Dinkins apparently feels that political correctness is more important than religious liberty.
Is imperialism making a comeback? No, no, not the colonialism of the older stripe, with English gentlemen in pith helmets. But what name other than benign imperialism can we give to the emerging New World Order in which it is tacitly understood that Western superpowers, with the imprimatur of the United Nations, are permitted and even expected to police the world’s trouble spots, from Kuwait to Bosnia to Somalia, intervening in the case of egregious violations of justice or human rights, toppling a dictator here, rounding up some bandits there, ushering in food and supplies, supervising the restoration of law and order, eventually withdrawing.
The difference now is that colonialism of this sort is now widely understood to fulfill the requirements of justice, as in Iraq, or warmly welcomed by the native peoples themselves, as in Somalia.
The sixteenth edition of Bartlett’s Quotations is out, and Adam Meyerson, editor of Policy Review, noticed that it contains only three quotations from Ronald Reagan, the same number given to Gerald Ford and Zachary Taylor. By contrast, Bartlett’s awards 15 quotations to Woodrow Wilson and 28 each to Franklin Roosevelt and John F. Kennedy. Moreover, the three Reagan quotations are pallid, and one of them, which implies that there is no shortage of food in America, is aimed at making the former president seem insensitive or foolish.
In fact, Reagan, more than anyone else, foresaw the collapse of the Soviet Union and of communism, and pursued policies consistently focused on achieving that goal. When many conservatives regarded the Kremlin as invincible, Reagan predicted that communism would soon find itself on “the ash heap of history.” At Berlin in 1987 Reagan issued a startling challenge to Gorbachev to “Come here to this gate, Mr. Gorbachev. Tear down this wall.”
Perhaps as well as any statesman in recent history, Reagan articulated a conservative vision of foreign and domestic policy. “Nations do not distrust each other because they are armed. They are armed because they distrust each other.” “It’s not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back. Government can and must provide opportunity, not smother it; foster productivity, not stifle it.”
Perhaps, Adam Meyerson observes in a letter to the editor of Bartlett’s, the next edition of the Quotations will rectify this neglect.