Michael Fumento

One of the dirtiest secrets of the abortion struggle has now come out of the closet. The liberal media, in the form of articles by Washington Post ombudsman Richard Harwood, a U.S. News & World Report article by John Leo, and a series by Los Angeles Times critic David Shaw, has now finally confessed that in at least one respect the pro-life side has been right all along - the general media has clearly displayed a bias towards the pro-abortion viewpoint.

A secret that remains in the closet, however, is that for all the fuss over Supreme Court nominees, the judges on lower courts have often displayed a pro-abortion bias that not only displays disdain for the sanctity of life and traditional values, but shows contempt for the law as well. The case of Joan Andrews is well-known, but there are many other such.

In Denver, for example, a judge who traded in her Christian name for the haughty moniker "Jacqueline St. Joan," fined Operation Rescue members so severely that the court clerk said she could not in good conscience take the money. When some of those fined took the alternative jail sentence instead - also extreme - the judge practically threw a fit, convinced that the Operation Rescue people were seeking martyrdom.

Now, the Supreme Court of the state of Ohio come up with a decision regarding Cincinnati abortion protesters that, were it applied to protestors of anything else - nuclear power plants, Catholic Churches, weapons factories

• would have provoked national headlines and streams of outrage on part of civil libetarians. It has proved a sad climax to a struggle that began five years ago and that I began covering in 1987.

It was a cold, rainy Saturday morning in February as about 35 demonstrators, most holding signs, stood vigil across the street from the object of their picket. On the same side of the street as that object, an additional five demonstrators either stood or walked on the public sidewalk, for the most part in silence. Officers from a police car and three sheriffs cars watched, drank coffee, and chatted among themselves. A man who looked like a movie caricature of a nervous accountant gathered up his courage and strode quickly across the street to join the five. He knelt on the sidewalk, and began to pray silently.

Suddenly, the scene came to life as two deputies tried to serve notice on the kneeling man, who refused to take it. Finally they dropped the slip of paper onto his shoulder, whence it fluttered off in the breeze. Later they grabbed him and carried him off to the car, his knees still pulled up in the prayer position.

They then seized a woman who had been silently pacing back and forth in front of the clinic the previous two hours with a clay model of a five-month-old fetus in a wicker basket. They read her the Miranda warning and thrust her into the back of a Sheriffs Department cruiser. A man began reading aloud from the Bible; he too was whisked away. Finally, I was warned that, press or no press, I too would be arrested unless I moved off the public sidewalk over to the "safe zone" on the other side of the street.

No, this was not a scene from a civil rights demonstration in Alabama in 1965, nor from a recent South African embassy picket. If it were, you wouldn't be reading about it for the first time here. This was Cincinnati, Ohio, in the heartland of America. The protestors were from a group called the Jericho Project, and what I had just witnessed was but a tiny skirmish in what has become the site of one of the fiercest conflicts in a nationwide struggle to stop abortion by shutting it off at the source. It is a struggle that will help define not only the future of abortion picketing in this country but the future of picketing in general and one that threatens to drive a wedge between pro-life activists of differing philosophies.

Cincinnati is typical of what one speaks of when talking about the conservative, traditional values of the heartland. It's an industrial town surrounded by farms, with a high Catholic and fundamentalist Protestant population and two newspapers which both have a moderately conservative bent. Cincinnati probably also qualifies as the largest metropolitan area of the nation that has no pornographic book stores or movie houses. And, of course, it recently made national headlines by becoming the only city thus far to prosecute, for displaying obscene material, a museum exhibiting Robert Mapplethorpe photos. Perhaps reflective of these values, Cincinnati has been at the forefront of the pro-life movement since 1973.

The home of National Right to Life Committee [NRLC] Director Jack Willke, the city maintains eighteen Ohio Right to Life chapters (other cities of similar size often have but one), has 12 pro-life counseling centers, and of a population of slightly over 450,000, some 70,000 subscribe to the local Right to Life newsletter. Little wonder, then, that this city is what National Planned Parenthood Director Faye Wattleton calls, "the scene of the ugliest and most aggressive anti-abortion violence in this country."

The only real violence was the firebombing of two abortion clinics in December of 1985, both of which were owned by Planned Parenthood. One clinic was destroyed, while the other suffered only slight damage and was back in operation within a few days.

Two days before the firebombings, Melody Green and a national group called Americans Against Abortion led a mass rally of about 2000 persons outside Music Hall in Cincinnati. The next day 150 people protested outside Planned Parenthood's Margaret Sanger center and the day after that the clinics burned. Prior picketing at the clinics, although continual since 1973, rarely numbered more than 12 picketers at a time. Whether from excitement over the bombings, as the pro-abortion side states, or from interest in the Green demonstration, as the pro-lifers claim, the era of quiet resistance in Cincinnati had come to a close.

Kathy Helmbock, then-head of the local chapter of the National Organization for Women (NOW), waxed nostalgic when discussing the pre-December 1985 pickets. "There would be just a few of them, and they would show up with rosaries and say some prayers. It was all very orderly," she says. The bombings, she asserts, changed all that. Planned Parenthood was forced to perform its abortions at the center which, being so close to the street, allowed much more effective picketing. Then, "fueled by excitement and glee over the firebombings, they showed up in huge numbers, blocking access to sidewalks and driveways and making entrance to the clinic difficult."

Replacing solemn women with rosaries were "two leather-lunged women and several men shouting at the tops of their lungs." About 150 protesters showed up on the first Saturday after the rally, by approximately 30 counter pickets from NOW and a local homosexual group. For the next several weeks the protests continued, until in late January two of the clinics closed down their Saturday operations, leaving the Sanger Center to face the picketers alone.

While Cincinnati has both noise and assault ordinances, the activities of the picketers fell into neither of these categories. So Planned Parenthood went to court and obtained an order and an injunction (enforceable by the sheriffs department) to prevent four named defendants from chanting or singing, blocking the sidewalk, or having unsecured signs. When the next day's protest was the largest since the two clinics closed down their Saturday operations, Planned Parenthood hurried back into court to enjoin not just the named defendants but everyone who appeared near the demonstration site.

Ten weeks later, Planned Parenthood secured the injunction, with the help of an amicus curiae ("friend of the court" brief) filed by the local American Civil Liberties Union, which one might have expected to maintain their position of supporting picketers regardless of circumstances but instead came down on the side of Planned Parenthood.

Granting the injunction was a judge with the Dickensian name of Thomas Crush. If you asked the picketers how they felt about the injunction, they would tell you they are crushed by it. Indeed they were. In short, the order allowed only five picketers (where there had been up to 150) on the public sidewalk in front of the clinic or anywhere near the clinic side of the street. Two of the five could remain stationary, but the three in front of the clinic must move constantly in order to keep them from talking with patients entering the building. Shouting, chanting, singing, or talking is forbidden if it may be heard Inside the clinic even if the windows are open.

Further, virtually anyone within the defined picket area is to be defined as a picketer. Prolife demonstrators, reporters, even employees of the Sanger Center who stand in or walk through the zone can be considered "a picketer." Theoretically, Planned Parenthood personnel can assume the five picket positions and keep prolifers out entirely. Finally and even more amazingly, Planned Parenthood has been appointed its own magistrate and is allowed to determine at will who is to be arrested.

In real life this is how it works, and this is what I saw that Saturday morning. Five picketers lawfully maintained positions in front of the clinic for perhaps two hours. A sixth person - the nervous man - crossed the road, knelt on the sidewalk in silent prayer, and awaited arrest. Planned Parenthood officials notified the sheriffs deputies who sat in their cars in the adjoining parking lot. The deputies approached the man, dropped a piece of paper on his shoulder, and told him he had violated the injunction. This paper was not a warning; it meant that he could now be arrested anytime, anywhere even if he immediately desisted. A bit later they came back and took him away.

But since there had now been six people in the picket zone (actually more, counting the officers), all the picketers were now subject to arrest. So Planned Parenthood, exercising selective dominion, ordered the arrest of Kathleen Dewey, one of the moving picketers, a grandmother of five who had provoked the wrath of Planned Parenthood by picketing on earlier occasions. As she was taken away, another picketer crossed the street and began to read aloud from the Bible. Too loud. Says who? Says Planned Parenthood. This man, too, was whisked away. Then, whether on the prompting of Planned Parenthood or more probably on his own, an officer warned me that I too was subject to arrest since I was standing still (taking notes) in a moving zone.

Ironically, the press provided the only compelling restraint on Planned Parenthood's power. It was the fear of adverse publicity that kept all six picketers from being arrested that day, and the same fear that prevents Planned Parenthood from simply assuming the five picket positions each Saturday morning before the pro-lifers arrive.

The chief problem with the injunction's constitutionality, according to attorneys for the defendants, is that, in the words of renowned jurist Learned Hand, "[a court] cannot lawfully enjoin the world at large, no matter how broadly it words its decree. . . ." Crush's order effectively enjoins the world. As an attorney for the defendants pointed out, "someone in London, England can come here and be arrested for violating Crush's order." Or a reporter in Washington. Crush claims he's not enjoining the world, merely a small zone around an abortion clinic in Cincinnati - a claim either maliciously flippant or incompetent and brash. All case precedent indicates that "enjoining the world" refers not to geographic location but to individuals, because due process protects people, not areas.

One case cited by the defendants was NAACP v. Claiborne Hardware, a Mississippi case in which blacks boycotted a store and picketed outside and some of the picketers engaged in violence. The store sought to enjoin all of the picketers, citing the violence caused by a few. The U.S. Supreme Court ruled that there was no guilt by association, even though all of the picketers engaged in a conspiracy to hurt store operations. In the Cincinnati case, there was no such clear connection between the enjoined persons. Thus, the Cincinnati case would appear to easily fall within the circumstances of the Mississippi ones.

Stated a lawyer for the defendants, "The class action is basically a red herring. It just muddies the waterr. What they're really hoping to do is just delay us until their new building is built, a building that will be much further back from the sidewalk. Crush been an all-too-ready and willing accomplice." He noted also that on those occasions where the picketers have appeared before judges other than Crush, "The rulings have been in our favor practically every time, but with Crush we simply never win."

Both of Cincinnati's papers have come out with editorials strongly opposing the Crush injunction, but the ACLU, defender of pornographers and Nazis, was more guarded. The state ACLU recognized all along the implications of Crush's order for, say, demonstrators outside a nuclear power plant. In the defendants' argument relied heavily on a nuclear power plant ruling, State v. Gross. Howard Tolley, President of the local ACLU, was obviously disturbed by the initial amicus in which the local chapter asked the court to weigh the right to an abortion against the right to picket.

The Supreme Court has never recognized any such balancing test under the First Amendment; to do so would be to sit in judgment of the beliefs of the opposing parties and destroy the whole purpose of the Amendment. Tolley admitted he would not want such a balancing test applied at the next nuclear power plant demonstration. "That's indeed what we'll address in the new amicus," he told me. Tolley's language was guarded, but he was clearly agonizing. "You can sense my sentiments," he said.

As for Crush's injunction against the world, Tolley said, "It's a novel theory. Planned Parenthood offered the more traditional approach of naming defendants and including those in concert. Crush chose a broader-reaching approach . . . . Obviously we're concerned with the precedent this would set, that's why we've defended Nazis and others." As one of the defendants' lawyers pointed out, "The Crush order is so wrong that the ACLU can't even do back flips to defend its position." The ACLU, incidentally. never did file another amicus in the case.

Crush himself became simply exasperated. When the picketers I saw arrested appeared before him, he reportedly practically moaned "All I want is peace." But it is a peace on terms which the picketers found wholly unacceptable. Likewise, Crush seemed sorely to lack understanding of conscience.

On one occasion when a picketer appeared before him, Crush said, "Can't you agree not to do it and let others do it? Are you so important to the movement that it'll fall without you? Is the anti-abortion movement so important that it will collapse without you? If it is, It isn't much of a movement is it?" To another picketer, Joanne Engel, a pregnant mother of six who refused to promise not to picket in front of the center, Crush admonished, "I don't know what to do. I've had murderers up here not that contemptuous.... Your position is insane."

While Crush's decision was being appealed to the County Court of Appeals, a judge in Dayton, Ohio borrowed the Crush order and made it even more stringent so as to allow a maximum of ten picketers within sight of the clinic and to forbid picketing outside an abortionist's home. The Jericho attorneys were confident Crush's order would be overturned on appeal, but cautioned against the ramifications for any demonstrators across the nation if it were allowed to stand.

At a NOW rally at the University of Cincinnati, Eleanor Smeal opined that the Crush order set a precedent that will make every abortion clinic from coast to coast off-limits to protesters. Pro-life picketers in other cities such as St. Louis, Pittsburgh, Seattle, Portland, where the demonstrations are sometimes larger than those in Cincinnati, would find themselves similarly "crushed."