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Date:         Mon, 25 Jan 1993 14:22:05 -0500
From:         JCOCURUL@DREW.BITNET
Subject:      Bray v. Alexandria [abortion case]
Comments: To: politics@ohstvma.bitnet

    I am under the hardship of not having the whole decision before
me, but let me say something about the abortion decision of Bray v.
Alexandria.  First, let me say that the decision on how the Senate
should try impeachments seems relatively straightforward -- they can
try them via subcommittee not just the whole senate -- I accept the
concurrance's priviso that if the trial should follow basic procedural
due process guidelines (ex. it must be fair, etc.).  Also, Chief
Rehnquist's book on the impeachment of Samuel Chase and Andrew Johnson
(_Grand Inquests_) is pretty good.

    The Bray decision is concerned with the practices of such groups
such as Operation Rescue that block family planning/abortion clinics
and generally harass those who want to enter them (the fact that they
might just want info or family planning for say contraception is
besides the point).  This practice infringes on private property
rights and the rights of those who want to enter the clinics to
practice their constitutional right of family planning and abortion
(Griswold v. Connecticut and Roe v. Wade).  Another issue arises with
the constitutional right of travel (main case eludes me; could be
Shapiro v. Thompson -- will check) since the instant case is in
Kansas, that like most states has few clinics, so abortion and the
right to travel is interwined.  It is accepted that state law can
protect the above, but what about when it refuses/can't, like in this
case?

   The federal district judge in Kansas was informed of a 1871 KKK law
that gives the federal gov't power to protect persons from being
prevented to practice their constitutional rights.  The law was meant
for blacks, but was updated in the 1980s to protect classes of people
whose constitutional rights are infringed from private conspiracy to
infringe them.  With many "classes" of people now protected by 14th
amendment precedent and laws, women are among those so protected.
Constitutional rights are at issue (see above) and the private
(Operation Rescue) conspiracy (blocking clinics) seem clearly fit the
other half of the criteria.  6-3, the SC diagreed (1 dissented in part
concerning application, but would still concur in result).  I don't
really fully understand their reasoning nor do I buy it.

   Justice Scalia argued that abortion protestors don't do so just to
infringe on the rights of a class (women), but for many reasons (ex.
right to life of fetuses mean even in test tube, they can't be
aborted).  The dissents argue that the _effect_ is only on the class
of women, and this should be the standard.  They probably noted case
law that would support this argument, and reality would show that
women as class are victims to the demonstrations at issue.  Besides,
as Justice Stevens notes, Operation Rescue at least in part aims its
"rescues" at women as a class.  Abortionists aren't the main concern,
women who want an abortion are and the intent is to block their
rights.
    Justice Scalia then says that interstate travel is not strong
enough a right to be protected here since it was not "aimed at" by
Operation Rescue.  This is questionable since they know the reality of
the travel needed for abortions and that travel is connected sadly too
much with the abortion right, especially in the area in question.  He
agrees that limiting the right of abortion is "aimed at" by Operation
Rescue, but that "deprivation of that Federal right (whatever its
contours) cannot be the object of a purely private conspiracy."  Why
not?  O'Connor adds other rights being violated: laws against force,
intimidation, and violence -- illegal methods of protest that infringe
on the right of women as a class to practice their consitutional
rights.  To invalidate such methods is the reason why the law was
passed in 1871 and was open as a tool in 1991 when these violations
first were punished.

    The issue of freedom of speech comes up here and such laws have
some potential to infringe upon it.  This is not the case here.
Operation Rescue can protest, shout "baby killer", show pictures of
fetuses and the like, but they can't block the way into the clinics.
The lawful methods make the experience a harder one than it already
is, but they are legit.  Unless Operation Rescue groups want liberals
to go out and do the same to their churches since they infringe on
rights of women (and often on homosexuals, unwed mothers, etc.), they
should stop these acts.  The bombing and stink bombs/vandalism is even
a worse infraction. They remind us of slavery, but John Brown's
attempt to lead a slave uprising was a wrong means for a good ends,
something anti-abortion rights groups should remember.  Free speech
doesn't justify the present actions, just as it doesn't allow us to
block the way for KKK members to their meeting place.

     -Joe

P.S. For free speech absolutists out there (any?).  The SC denied oral
argument for Solidier of Fortune maganazine in a case where a former
mercenary advertised his services and was hired and did kill someone.
The magazine was sued for damages and lost.  Is this a free speech
violation?
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