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the Body Politic
Vol. 01, No. 09 - September 1991, Page 20
Copyright © 1991, 1998 by the Body Politic Inc.

Braying at The Supreme Court

Bray v. Alexandria Women's Health Clinic

By Anne Bower

On November 9, 1989, the United States District Court in Washington DC granted an injunction against Operation Rescue activities associated with The DC Project. Planned Parenthood of Metro Washington, N.O.W., NAF and others had sought relief claiming that defendants "conspired to deny the constitutional rights to travel and the privacy of women seeking abortion services in violation of federal civil rights statue 42 U.S.C.A. § 1985(3)." Judge Oberdorfer agreed.

The Court also found that blockading medical clinics where abortion related services were performed was speech not protected by the First Amendment. Judge Oberdorfer's injunction was the beginning of what has become Bray v. Alexandria Women's Health Clinic, a case which has the potential to remove one of the underpinnings of many injunctions across America that prohibit Operation Rescue blockades.

The following, is a discussion of the series of events leading to Bray, excerpts from the amicus brief filed by NARAL and 28 other pro-choice organization, and an explanation of what is at stake in this case.

Court of Appeals

A Permanent Injunction was eventually granted and Operation Rescue appealed to the Fourth Circuit Court, which handed down a ruling in September 1990.

The central issue in this ruling was that women qualify as a "protected class" under the civil rights conspiracy statute §1985(3). The court found that women seeking abortions and abortion related services had the right to travel interstate in search of medical care.

"...the activities of appellants in furtherance of their beliefs had crossed the line from persuasion into coercion and operated to deny the exercise of rights protected by law."

However, the court refused to expand the injunction to "prohibit any intimidation, harassment or disturbance of patients" who were seeking services. The judgment of the district court was affirmed.

The Supreme Court

Both sides appealed the ruling and eventually Bray was scheduled to be argued October 16, 1991. An Amici Curiae Brief of "29 organizations committed to women's health and equality", was authored by the NARAL legal staff and filed May 13, 1991.

The brief makes two major points in its argument, and uses as supporting evidence letters from women who were seeking an abortion during an OR blockade, plus volunteers escorts and clinic personnel who attempted to care for patients during a blockade.

Argument I

Women are members of a valid class protected under 42 U.S.C. §1985(3).

A. A Sex-Based Class Satisfies the Statue's Class Requirement.

The broad language of the civil rights statute and the statute's legislative history support a finding that women form a cognizable class. The statute offers protection to "any person or class of persons" who are the subject of private conspiracies to deprive them of the equal protection of the law.

The OR literature on the DC Project offers clear proof that the "petitioners" were conspiring to deprive women of the ability to obtain an abortion.

All seven of the United States Courts of Appeals that have considered the issue over the last 12 years, have held that women are a class protected by this statute.

B. Petitioners' Conspiracy Interferes With Rights Possessed By Potentially All Women.

It is a startling fact brought out in the brief, that 83% of the counties in America do not have an abortion providers. Obviously, many women have to travel to obtain abortion services. OR has conspired all over the country to block women from entering medical facilities where reproductive health care is provided and abortions are performed.

Petitioners' argue that women seeking abortion are a sub-class of women and can not be protected by §1985(3). The brief argues that at some time in their lives, the vast majority of women will need the medical services provided at these facilities, and therefore, the constitutional rights of all women are being infringed in regard to travel when OR stages a blockade.

Excerpts from letters written by women who experienced blockades shows the diverse reasons why women were seeking help. One woman had diabetes and was told she risked losing her life if she didn't terminate her pregnancy. She chose to have an abortion because of concern for her husband and three other children. Another woman seeking abortion was carrying a fetus that had no kidneys. A third woman wrote that while she was seven months pregnant she visited her doctor for tests because of problems with hypoglycemia. The clinic was blockaded, disrupting her medical care, and she and her husband were unable to leave, which caused her to become ill.

As the brief says,

"Far from affecting only a small 'sub-class' of women, conspiracies to interfere with abortion services including counseling and information thus directly affect the rights of all women, including those who may never choose to have an abortion, as well as the many women who do seek abortions and related services."

Argument II

Petitioners' actions are motivated by a sex-based animus directed at women.

A. Sex-Based Animus Requires An Aim to Deprive Women of the Equal Enjoyment of Their Legal Rights.

Petitioners' (OR's) brief and the amicus curiae brief from the U.S. government submitted by the Solicitor General, argue that OR is not motivated by "hostility or animosity toward women."

An affidavit from Randy Terry given while he was in an Atlanta jail, bristles with indignation at the suggestion that he has any ill will toward women. He says he has never treated his wife or daughter in an "invidiously discriminatory fashion." He turned his Crisis Pregnancy Center over to a woman to manage. He has hired women to work for OR in Binghamton. There are women deacons in his church. And,

"I have spent hours upon hours counseling pregnant women, even at home during times I should have spent with my family."

Randy has also spent a lot of time away from his family making it tortuous for women seeking medical care to see their doctor.

Respondents argue that it is not necessary to prove "animosity", just that OR aims to deprive women of the "rights secured by the law to all."

B. The Activities In Which Operation Rescue Engages Demonstrate That the Conspiracy Is Aimed at Depriving Women of Their Rights.

Petitioners argue that the crux of this case is whether "Opposition to abortion standing alone translates into sex discrimination."

Respondents reply that petitioners are not just opposing abortion.

"... they purposefully engage in concerted, mob action to prevent women from exercising their legal rights."

To support this claim, the NARAL brief reprints letters from patients, medical staff and escorts who were involved with OR blockades.

"The mob pushed me all the way to the front door of the clinic and proceeded to pin me and the guards against the brick wall and the door. Once the locked door was open, 39 men and 13 women charged out of a moving van and stormed into the Women's Health Center, knocking me to the waiting room floor."
"One of the most invidious tactics has been the use of photography and video cameras to invade the privacy of women entering the clinics."

These are not the actions of people who "oppose" abortion. As the brief states, this is

"...politically motivated mob violence designed to prevent persons from exercising their rights to which §1985(3) was designed to apply."

It is truly frightening to realize that the Reagan/Bush agenda to criminalize abortion extends to dismissing violence against women seeking health care. The U.S. government did not have to file an amicus brief in this case, any more than it had to file a brief asking the Court to overturn Roe in Thornburgh v. American College of Obstetricians and Gynecologists.

If the Supreme Court reverses previous court rulings and decides that women are not a protected class under this statute, previously obtained injunctions which depend on this rationale alone, would be vacated, opening up more medical facilities to possible new violence.

For OR and Randy Terry to compare themselves to freedom fighters is a perversion of civil rights history. Rather, in the words of the NARAL brief,

"The 'terrorist' behavior of petitioners is remarkably similar to the conspiracy of violence and intimidation carried out by the Ku Klux Klan against which Congress intended this statute to protect."

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This archive is hosted by
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