Abortion: The Feds vs. a Federal Judge

By John Elson

"They should say farewell to their family and bring their toothbrush, and I mean it, because they are going to jail." The author of that hardball warning is -- or was until recently -- a churchgoing Roman Catholic. Like several other public figures of the faith, notably New York's Democratic Governor Mario Cuomo, federal District Judge Patrick F. Kelly, 62, believes that his personal views on abortion, which he refuses to disclose, should not affect his responsibility to enforce the law of the land. Meaning, on this issue, Roe v. Wade. The judge's determination to stop pro-life activists from closing three abortion clinics in Wichita last week led to threats on his life and a confrontation with the Justice Department. The explosive, passion-stirring legal battle may take the U.S. Supreme Court to resolve.

And Wichita may never be quite the same. Tucked comfortably away in the middle of America's "flyover country," this conservative, image-conscious city (pop. 304,000) prefers to resolve its internal disputes -- which customarily involve school-board squabbles or debates over nude dancing in bars -- away from the glare of media attention. Thus there was some local discomfort in mid-July, when Operation Rescue, an aggressive antiabortion group based in Binghamton, N.Y., set up blockades outside three local clinics; one of them is among the few that perform late abortions. TV cameras soon followed, since the protests turned out to be anything but passive. As they have done in other cities, the Operation Rescue vigilantes physically tried to prevent employees and patients from entering the clinics, harassing them all the while with slogans like "Abortion stops a beating heart."

; As tensions rose, two of the clinics petitioned Kelly to stop the blockades, basing their legal argument on sections of an 1871 law popularly known as the Ku Klux Klan Act. Although the act was initially designed to protect freed slaves from intimidation by Southern whites, some federal courts have ruled that it may also be used to shield women seeking abortions from pro-lifers' wrath. With this as precedent, Kelly on July 23 enjoined Operation Rescue from blocking entrance to the clinics.

Hundreds of pickets have ignored the ruling, and more than 2,000 arrests have been made. Many protesters have been hauled off more than once. Early last week Kelly ordered federal marshals to get tougher with the demonstrators and issued his jail-or-else warning. In support, abortion-rights advocates outside one of the clinics began to wave toothbrushes at Operation Rescue volunteers. Meanwhile, the judge accepted protection from federal marshals: anonymous threats had been phoned and mailed to his office and home. "This has been the most awkward and stressful time of my life," Kelly said. "It's scary."

Adding to his burden was an unexpected intervention by the Department of Justice. While Operation Rescue lawyers asked the 10th U.S. Circuit Court of Appeals to vacate Kelly's antiharassment injunction, the U.S. Attorney for Kansas, Lee Thompson, filed an amicus curiae brief contending that federal courts had no jurisdiction over the case. Kelly, in an almost unprecedented TV interview on ABC's Nightline about the proceedings, angrily charged the Justice Department with giving its "imprimatur" to "a license for mayhem."

Administration officials denied siding with the pro-lifers on abortion's legality. Instead, they said, they were merely arguing some finer points of law. Because Operation Rescue targets all those involved in the abortion process, male as well as female, the KKK Act's protection of a class of persons suffering discrimination is not involved. In addition, says Justice, the clinics' proper avenue of redress was in state courts, not federal ones. "Nothing drove this other than consistency," said a former White House official, noting that the Justice Department had filed a similar brief in another case, now before the Supreme Court, involving Operation Rescue's tactics at abortion clinics in northern Virginia.

Although that case will have no direct impact on Roe v. Wade, there are four disputes pending in the lower courts that pro-lifers hope the Supreme Court will eventually use to either overturn or further limit the landmark 1973 ruling. One of them is Louisiana's tough new antiabortion law, which was struck down by a federal district judge last week.

Pro-choice advocates agreed with Judge Kelly's outraged view that Washington's meddling in the Wichita case was, as he put it, "political." Having already made its point in the Operation Rescue case before the Supreme Court, the Administration had no new legal arguments to make other than, apparently, to underline its already well-known distaste for Roe. Vacationing in Kennebunkport, Me., President Bush was asked whether the Justice Department's actions condoned the pro-life pickets' defiance of court orders. Not so, he answered: "Everyone has the right to protest, but it ought to be done within the law." Fair enough. But there is not much doubt about which law the Administration would like to see changed.

With reporting by Julie Johnson/Washington and Bud Norman/Wichita