Uncivil Liberties: No Justice for Operation Rescue

Imagine that your next-door neighbor is an unsociable old curmudgeon, with a large swimming pool in his backyard. Time after time, this crotchety neighbor has informed you that you are not welcome in his yard, and that you may not use his swimming pool under any circumstances. You can take a hint; you stay away.

But then one day, while you are mowing your own lawn, you notice that a small baby is crawling unattended across your neighbor’s backyard. As you watch in horror, the baby approaches the swimming pool, and tumbles in. What do you do?

Naturally, you jump over the fence, dive into the pool, and save the baby’s life. If your neighbor is foolish enough to press charges for trespassing, no jury in the country will convict you. Under ordinary circumstances your actions would have constituted trespassing, but these were not ordinary circumstances. You quite justifiably discarded one good—your neighbor’s property rights—to serve a much higher good—the baby’s life. Your action cannot be a crime, but a display of admirable quick thinking, possibly even heroism. At your trial (if the case went that far) your attorney would wrap up all these arguments by invoking an age-old principle of Anglo-American law: the necessity defense.

Recognized in common-law practice for centuries, the necessity defense is enshrined (in somewhat different terms, and under different names) in legal precedents and statues throughout the United States. When radical activists led by Abbie Hoffman (and including Amy Carter, the president’s daughter) staged a sit-in to disrupt CIA recruiting activities in Amherst, Massachusetts, they successfully invoked the necessity defense during their trial. Only an imagination thoroughly fertilized by ideological propaganda could see how the disruption of CIA recruiting in New England would save the life of, say, a rebellious peasant in Guatemala. But that is exactly the logic that Hoffman and Carter invoked, and a Massachusetts court found it persuasive.

The pro-life activists of Operation Rescue can make a much more compelling case for the necessity defense. No one disputes the fact that when Operation Rescue participants block the doors to an abortion clinic, they are engaging in trespass which would, under ordinary circumstances, be clearly illegal. But if those clinic doors are opened, Rescue leaders point out, unborn babies will die. Rescue activists are engaged in an effort to save human lives.

Yet despite the precedent set by the Hoffman-Carter defendants, and despite a state legal code which explicitly recognizes the necessity defense, judges in Massachusetts have forbidden the use of the necessity defense in rescue trials. And Massachusetts is not an isolated case. That same unhappy pattern has been duplicated all across the country. The lawyers who represent Operation Rescue activists are routinely prevented from introducing their most compelling argument.

In theory, rescue defense lawyers can still pin their hopes on another time-honored legal tradition: jury nullification. If the members of a jury believe that a law is fundamentally unjust, or that its application in a particular case is obviously wrong-headed, then those jurors have the right to render a not-guilty verdict, even in the face of overwhelming evidence.

Even before the American Revolution, John Adams made the case for jury nullification, teaching that if a juror believes that the prosecution is advancing its cause unjustly, “It is not only his right but his duty in that case to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Unfortunately, most American jurors today are unfamiliar with their own legal rights and responsibilities. If the judge presiding over a rescue trial tells jurors to ignore the defendants’ motivations, the jurors will usually obey. Then the case boils down to a simple question of fact: did the defendants trespass or not? In most cases, those facts are clear; a guilty verdict is virtually inevitable.

On rare occasions, Operation Rescue defendants have invoked the necessity defense successfully. In August 1989, Judge Gerhard wrote a memorable opinion exonerating St. Louis rescuers: “This court finds that the credible evidence in these cases establishes justification for the defendants’ actions. Their violations of the ordinances involved here were necessary as emergency measures to avoid the imminent private injuries of death and maiming of unborn children, which imminent deaths and maimings were occasioned through no fault of the defendants but occasioned by the operation of a lucrative commercial endeavor.”

But Judge Gerhard is a rarity. Far more frequently, rescue defendants have complained bitterly about judges who rode roughshod over their Constitutional rights. The mound of complaints about judicial misconduct has grown just as steadily as the rescue movement itself, and each new landmark in Rescue history seems to engender a new complaint. Consider the legal campaigns against prominent rescue leaders.

When Operation Rescue reached a new high-water mark in Atlanta during the summer of 1988, Michael McMonagle came to trial on charges of aiding and abetting the blockade of an abortion clinic. McMonagle claimed that at the time in question, he was not involved in the blockade; he was standing across the street from the abortuary, exhorting the police to be gentle. McMonagle’s defense offered to introduce a videotape, which clearly showed that he was on the opposite side of the street. The trial judge would not allow the jury to see the tape.

In March 1989, the “Holy Week Rescues” brought still more thousands of pro-life activists onto the streets of Los Angeles, and authorities looked for a new way to send a strong message. Most of the activists were charged with simple trespass. But when Operation Rescue founder Randall Terry was arrested, officials threw the book at him. As he explains in Accessory to Murder, “The authorities charged me and three others with felony conspiracies to commit misdemeanor trespass. Absurd, isn’t it?”

Terry eventually beat the charge in Los Angeles, but McMonagle was found guilty. McMonagle was originally assessed a 45-day sentence and a $1,000 fine, but when he refused to pay the fine, Judge Thelma Cummings increased his sentence to six months. For his role in the Atlanta Rescues, Randall Terry was hit with a two-year suspended sentence and $1,000 fine. He, too, refused to pay the fine, so Judge John Brunner extended his sentence two years. Terry served four months in a Georgia prison camp before an anonymous donor paid his fine and obtained his release. As for rescue activist Joan Andrews, her pickets of abortion clinics earned her a five-year prison sentence. (On the same day, in the same courtroom, two men who had been convicted as accomplices to murder faced Judge Anderson for sentencing; they received four-year sentences.)

“Compared to the sentences of other protest groups in Atlanta our sentences have been outrageous,” Terry points out. “An anti-Ku Klux Klan group gathered in Atlanta during the Democratic National Convention to protest the Ku Klux Klan. They threw bricks, some of which hurt the police, they were all fined $100. A group of antinuclear protesters were also arrested during the convention. They served three days in jail, had a $25 fine suspended, and went home. When disabled veterans sat in at the federal building in Atlanta (coincidentally, during the week of my trial), President Bush himself called and asked that they not be arrested! Homosexuals lay down in the streets and were fined $70 and released.

Prior Restraints

Those stiff sentences handed out in the Georgia courtrooms came after the Atlanta City Council won a court injunction against Operation Rescue. The injunction imposed strict limits on demonstrations and picketing near abortion clinics: no more than 20 people could come within 50 feet of the abortuaries; no rescuer could come within five feet of people entering the clinic. Although that injunction stirred a hornet’s nest of Constitutional issues—it imposed a prior restraint on political protest, inhibited the free speech of sidewalk counselors, and limited the rescuers’ rights to free assembly—the Georgia Supreme Court upheld it, citing the government’s “significant interest in the right of citizens to obtain desired medical service.” The U.S. Supreme Court refused to consider a Rescue appeal.

When Operation Rescue came to New York, pro-abortion leaders had learned their lessons from the Atlanta case. The National Organization of Women (NOW) sought a federal injunction against the Rescues, basing their case on an obscure nineteenth-century statute that had been enacted after the Civil War to protect the newly emancipated slaves from harassment by the Ku Klux Klan. Just as the Klan singled out black citizens for abuse, NOW told the court, Operation Rescue singles out women. Remarkably, the court accepted that argument. And the Second Circuit Court of Appeal rejected Operation Rescue’s appeal in NOW v. Terry, finding that “defendants engaged in a conspiracy to prevent women from obtaining access to medical facilities” and that since the “conspiracy is focused entirely on women seeking abortions, their actions reveal an attitude or animus based on gender.”

Could a movement such as Operation Rescue, in which thousands of women are active participants, be reasonably classified as a conspiracy against women? Evidently the U.S. Supreme Court didn’t see gross injustice here: the high court again refused to hear an appeal in NOW v. Terry.

Now the opponents of rescues had a powerful legal weapon in their hands, and a powerful legal precedent to cite. Federal suits based on the old Ku Klux Klan Act were filed in courtrooms all across the country. Finally, in the Virginia suburbs just across the Potomac River from Washington, Operation Rescue found an appropriate test case. Jayne Bray—an attractive young woman active in the local Rescue network—became the leading figure in Bray v. Alexandria, which challenged an injunction handed down against Virginia rescuers. In the federal district Operation Rescue lost the case, as the court cited the precedents established by Now v. Terry and similar suits: “the majority of courts have concluded that a gender-based animus satisfies the conspiracy requirements.” But Operation Rescue again petitioned the Supreme Court, and by this time the composition of that Court had changed significantly. Justice David Souter had replaced William Brennan, and Thurgood Marshall had retired (Clarence Thomas had not yet joined the Court) when the Court finally heard oral arguments on the Bray case in the fall of 1991.

(Aside from furnishing the material for a Supreme Court challenge, Bray v. Alexandria also illustrated how abortion supporters used lawsuits as offensive weapons against Rescue leaders. Michael McMonagle and Randall Terry were both named as defendants in the lawsuit that gave rise to the Bray case; yet both were in prison in Atlanta at the time when the suit was filed. Patrick Mahoney rolled up $26,000 in legal bills on the case, although he had never been arrested in Virginia.)

Kansas Confrontation

By the time the Supreme Court heard the Bray case, the use of federal lawsuits based on the Ku Klux Klan Act had become the focus of an enormous controversy in Wichita. Judge Patrick Kelly had granted an injunction, the rescuers had appealed, and the U.S. Justice Department had intervened on behalf of the rescuers. The Justice Department’s intervention was not unprecedented; federal attorneys had taken the same stance in the Bray case. But Judge Kelly’s intemperate reaction thrust this rather arcane controversy into the nation’s headlines.

Rushing onto ABC’s “Nightline” telecast (where correspondent Jackie Judd misinformed the audience by saying that Operation Rescue had “suddenly” won the administration’s support), Judge Kelly began his blast at the Attorney General by saying of the Justice Department brief that “it’s not legal. There isn’t any validity to it, and it is political, if for any other reason.” (The Tenth Circuit Court of Appeals evidently disagreed; in October that court voided Kelly’s order requiring a $100,000 “peace bond” for Rescue leaders. And since the Supreme Court agreed to hear the Bray case, evidently the nation’s top judicial body agreed that the rescuers’ case had merit.) Even host Barbara Walters, who made little effort to conceal her disagreement with the Rescue position, seemed surprised by Kelly’s aggressiveness, asking him whether it was not “very unusual for a federal judge sitting on a case to come out publicly as you are doing tonight.”

In the Wichita case Jay Sekulow and Patrick Monaghan, lawyers for the Rescue leaders, argued in vain that the Ku Klux Klan Act was irrelevant to the case. They claimed that women seeking abortions are “not really a class at all; rather it is an activity dressed up to look like a class.” Several weeks later, in a New York Times opinion column, their argument drew support from William Bradford Reynolds, former director of the Justice Department’s civil rights division, who saw the absurdity of the charge: “The millions of Americans who advocate childbirth rather than abortion are, in Judge Kelly’s court, engaged in invidious sex discrimination.”

The Supreme Court decision in the Bray case (which should be announced any day) will at least temporarily settle the question of whether Rescues can be blocked by federal courts. But ironically even Patrick Monaghan, who argued so forcefully against Judge Kelly’s injunction, doubts that the Bray case will have a decisive impact on the legal problems confronting Operation Rescue. Although federal lawsuits generate national publicity, he points out, the federal courts can be unwieldy, and enforcement efforts can be subject to considerable political pressure. Monaghan observes, “Frankly, the places where law-enforcement authorities have handled rescues most effectively have been the cases where local authorities have handled it. The feds do not handle these things well. The local community is more capable of handling protest movements.”

The local community is also capable of enacting its own legislation, creating restrictions on rescues far more specific and severe than those of the Ku Klux Klan Act. In New Jersey, when pro-abortion legislators introduced a bill that would have outlawed blockades and even sidewalk counseling, William Bolan of the state’s Catholic Conference warned, “An attempt to dissuade a woman from allowing an abortionist to kill her unborn child will become illegal.”

In states where the political leadership responds to the desires of the abortion industry, federal lawsuits are unnecessary; state courts handle the cases far more expeditiously. In Massachusetts, the state’s Attorney General joined abortionists in seeking an injunction against clinic blockades. Shopping around for a sympathetic judge, the plaintiffs ignored Norfolk and Suffolk Counties, where most of the state’s rescues had taken place, and brought their action before Judge Peter Lauriat in Middlesex County. They were not disappointed. Although the abortionists’ case alleged that Operation Rescue deprived women of their civil “right” to an abortion, they did not produce a single witness to testify that she had been unable to procure an abortion. Nevertheless Judge Lauriat granted the injunction.

Operation Rescue-Boston defied that injunction almost immediately, with rescues in Brookline and Boston. Three pro-life activists were soon hauled up on contempt charges for staging those blockades. Brookline is located in Norfolk County, Boston in Suffolk County; the Sixth Amendment guarantees that defendants will be tried in the jurisdiction in which their alleged crime occurred. Rescue lawyers asked for a trial in Norfolk County. Their motion was denied. Bill Cotter, Darroline Firlit, and Sean Brogan were soon convicted—and sentenced to terms of up to two-and-a-half years—in a Middlesex County court.

Freedoms at Risk

Did that trial in Massachusetts raise serious questions about the Constitutional rights of the defendants? Absolutely. But it was not the first time that rescuers had seen a judge abridge the protections guaranteed by the Bill of Rights. The rescuers’ freedom of religion, and their right to an effective defense in criminal trials, were frequently misplaced.

In Wichita, Judge Kelly had ordered the Reverend Phil Vollman of Cleveland arrested when Vollman confronted the abortionist Dr. Tiller with the warnings found in Psalm 37: “The wicked, enemies of Yahweh, will be destroyed.” Pastor Skip Robokoff was also arrested, at an abortuary in Dobbs Ferry, New York, for citing Scriptural references to divine judgment. Assistant Village Justice James Badie forbade preaching by Robokoff within 100 yards of the sidewalks where he had been arrested.

During trials in San Diego in October 1989, the rescuers’ attorney Cyrus Zal was ordered to refrain from any mention of abortion during his presentation. Judge Larry Brainard insisted that the trial must focus exclusively on the charges of trespassing, so he compiled a list of 21 words which Zal could not use, including fetus, abortion, murder, rescue, baby, etc. Judge Brainard also ordered Zal and his defendants to refrain from prayer—even silent prayer—in his courtroom! When he “slipped” and mentioned some of the taboo words, Zal was hit with twenty contempt citations, bringing a nine-month sentence on the lawyer himself.

Needless to say, in all of these cases the court provided legal reasoning to justify its actions. A full examination of those legal arguments would require an effort far beyond the scope of this essay. But at the very least, these remarkable judicial opinions seem to impinge on the Constitutional liberties that all American citizens cherish. Why did the extraordinary orders issued by these judges escape media scrutiny? Why were there no panels of legal scholars assigned to explore the ramifications of the court decisions? Ordinarily, the American Civil Liberties Union (ACLU) maintains a near-absolute insistence on the sweep of the freedoms guaranteed by the Bill of Rights. Where was the ACLU in these cases?

In Southern California, the ACLU was indeed active—on the opposite side of the issue. In Accessory to Murder Randall Terry devotes an entire chapter to his indictment of the ACLU. Among his charges: “When Operation Rescue came to Los Angeles in 1989, the ACLU opposed us with unrelenting fervor. Carol Sobbells, pro-abortionist feminist and attorney for the ACLU, met with Police Chief Darryl Gates, insisting that they vigorously enforce trespass laws and that we be arrested at any rescues. The ACLU then completely betrayed its own policy—and remained faithful to child-killing—secured an injunction against rescues, and sued us.”

On rare occasions the ACLU did intervene on rescuers’ behalf, but only when the question was completely divorced from the central issue of abortion. In 1991, the Rhode Island ACLU chapter prepared an amicus brief supporting rescuers when a local judge ordered them to reveal their Social Security numbers. The brief was carefully written to address only the propriety of demanding that defendants release their Social Security numbers—a point on which federal law clearly sides with the rescuers.

More typically, when rescue cases produced knotty questions of Constitutional rights, the ACLU stood aside. John Leo of U.S. News and World Report asked why, and answered his own question: “Why is it that the ACLU, which happily defends the Nazis and the Klan, has such trouble helping abused abortion protestors? Well, for one thing, the ACLU has an abortion lobby inside it—the Reproductive Freedom Project.” A defense of rescue activists would pit one arm of the ACLU against another. Perhaps even more important, it might alienate the ACLU from its financial supporters. Leo quoted the indefatigable civil libertarian gadfly, Alan Dershowitz: “You can make more money supporting reproductive rights than you can supporting civil liberties. It’s as simple as that.”

Selective Prosecutions

No one is immune from a lawsuit, and anyone who participates in a Rescue blockade runs the risk of being singled out for legal punishment. How do pro-abortion leaders choose their victims? Understandably, their first targets are the leaders of the rescue movement; Randall Terry has been named as defendant in cities that he has never visited. But the pro-abortion forces have other criteria in mind as well.

Chris Slattery might have seemed like an ordinary young professional, working in the advertising industry and raising his family in New York. But Slattery was unique in one respect: he ran the only crisis pregnancy center on the island of Manhattan that operated with a pro-life mission. Due to his efforts, at least 3,000 women had received counseling, clothing, housing, and advice about adoption, allowing them to avoid abortion.

Slattery had also become active in Operation Rescue. And although Judge Robert Ward had issued a temporary injunction against the group, in response to NOW’s lawsuit based on the Ku Klux Klan Act, Slattery felt the call to help save unborn children. He spoke out at rescue rallies, and in October 1988, when rescuers blocked a clinic in Dobbs Ferry, New York, Slattery served as the group’s principal contact with the media. Throughout the rescue he stood across the street, talking with reporters. Slattery was not named in the injunction, and he didn’t participate in the blockade. It didn’t matter. When his case came before the court, Judge Ward slapped Slattery with a $25,000 fine for breaking the injunction.

Long before that case came to trial, however, Slattery had taken part in another rescue action. In January 1989, he was one of 1,800 rescuers arrested in Manhattan, just a few days after Judge Ward announced that his injunction would apply permanently. For that offense Judge Ward added another $25,000 fine, plus attorneys’ fees.

Slattery had fought hard to resist the NOW lawsuit. When process servers appeared at his home, he and his wife refused to answer the door. At work, he became accustomed to ducking out the back door of his office when an unfamiliar face appeared at the reception desk. Colleagues began asking uncomfortable questions; feminists scribbled denunciations on the walls of the ladies’ restroom in his office building. Eventually, Slattery lost his job, and soon he lost his financial future. Including attorneys’ fees, the legal judgment assessed against him could approach $200,000. Even filing for personal bankruptcy would not eliminate the problem, Slattery confided to Ray Kerrison of the New York Post: “They can take ten percent of my salary for 20 years.”

In a pair of eloquent columns pleading Slattery’s case, Ray Kerrison compared Slattery’s fate with the sentences doled out to homosexual activists who had blocked access to New York’s state Capitol building in Albany. Most of the homosexual protesters received $100 fines; a few repeat offenders were penalized with $200 levies.

In some contempt-of-court cases, judges impose enormous fines in an effort to force recalcitrant parties to obey the court’s orders. A wayward father who does not make child-support payments, for instance, could be hit with stiff daily fines until he makes those payments, thereby purging himself of contempt. But Slattery could do nothing to purge himself; he could not undo his past actions. So why did Judge Ward assess these extreme penalties? Why had the NOW lawsuit singled him out from among the thousands of Rescue activists in New York? Slattery himself had no doubt. Remember that his crisis pregnancy center had deprived the abortion industry of customers, and his leadership in Operation Rescue had enticed new recruits into the movement. “They’re trying to put a chill in the hearts of committed pro-life people,” he concluded.

How could a quiet, civic-minded family man like Chris Slattery become the target for a legal vendetta? Attorney Patrick Monaghan refers to “the abortion-distortion factor” which has infected so many court cases, with the result that “the law is turned topsy-turvy.” Nowhere is that distortion more evident than in the use of “RICO” suits against rescuers.

The federal Racketeer Influenced and Corrupt Organizations (RICO) Act of 1962 was originally devised to give prosecutors a new weapon against organized crime. With broad powers and stiff penalties, RICO gave federal attorneys the choice of civil or criminal prosecution and allowed wide latitude for lawsuits based on a “conspiracy” to commit criminal activity. Because it was written to incorporate those broad powers, RICO has always provoked criticism from civil libertarians. When the use of RICO lawsuits became a popular weapon within the financial world and money managers were facing RICO counts for alleged mishandling of their clients’ investments, the criticism intensified. Even the Chief Justice of the Supreme Court, William Rehnquist, wrote an unusually blunt op-ed column in the Wall Street Journal, with the self-explanatory title: “Get RICO Cases Out of My Courtroom.”

Late in the 1980s, the rescuers who had devoted their lives to saving innocent babies found themselves classified alongside the gangster who had earned profits by contract murders. They, too, were defendants in RICO cases. Chief Justice Rehnquist deplored that trend, too, but he ignored his first opportunity to halt it. In October 1989, Rehnquist and his colleagues had their first opportunity to review a RICO action against Operation Rescue. Michael McMonagle and 26 other defendants had been found guilty of criminal conspiracy and faced over $100,000 in fines, damages, and attorneys’ fees. Although the essential purpose of RICO law is to punish criminal intent, the trial judge had prevented McMonagle and his fellow defendants from testifying about their motivation. Obviously, the rescuers had no hope of deriving financial profit from their actions. Yet the Third Circuit Appeals Court had rejected their protests, and now the U.S. Supreme Court refused to hear their case.

That decision sent abortionists scurrying back to consult with their lawyers again, and soon new RICO lawsuits were being filed. In Massachusetts, the town of Brookline (which houses three busy abortion mills) filed a RICO lawsuit; it charged that 20 defendants had engaged in a criminal conspiracy at a time when no court in Massachusetts had convicted any Operation Rescue member on criminal charges. Brookline was ready and willing to equate Operation Rescue with a family of Mafia mobsters, but local prosecutors were not yet ready to prove that rescuers were breaking the law. In Los Angeles, Randall Terry had been charged with a felony conspiracy to commit a misdemeanor. In Brookline (a town he had never visited) he was accused of a criminal conspiracy to engage in an action which may or may not have been classified as a crime!

In West Hartford, Connecticut, Randall Terry was slapped with another RICO lawsuit. As evidence against him, the town cited his book, Operation Rescue. Did that approach constitute an attack on freedom of the press? If so, the attack was repeated. John Spear, the editor of the Orange County (New York) Post who had written a scathing editorial criticism of the West Hartford police, was also named as a RICO defendant. When the Town of Brookline entered its RICO suit, only one of the Boston-based defendants had not been arrested two or more times in clinic blockades. That single individual was the editor of the Catholic archdiocesan newspaper (and the author of this essay), who had harshly criticized Brookline police in his editorial columns and in public speeches. Ordinarily, whenever a newspaper editor faces legal charges stemming from a controversial editorial position, he can count on the support of other editors, regardless of any political disagreements. Not in these cases. For Operation Rescue, all too often injustice is no news.

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