President Bush looked distinctly uncomfortable as he paused between golf shots at his Kennebunkport vacation retreat last week to explain why he didn't believe the federal courts had the authority to protect the constitutional rights of women and doctors in Wichita, Kan.
Putting on his best golly-gee manner, the president said he sure hoped the anti-abortion extremists in Wichita would comport themselves "within the law of the land," which they certainly had not done when they effectively shut down three medical clinics in that heartland city for two weeks.
But alas, the president went on with a puzzled shrug, it was just a matter of jurisdiction: The 120-year-old federal statute invoked by federal Judge Patrick F. Kelly was meant to protect the rights of blacks, not women.
The women, he said, should go to the local authorities for protection -- never mind that local authorities, from the governor of Kansas to the mayor of Wichita, had made it clear that their sympathies lay with the unruly mobs. Is it any wonder that the Wichita police dealt with this organized lawlessness in such a gingerly fashion as to send the signal that it was all right to use force to prevent patients from entering the clinics?
The issue no doubt will one day reach the U.S. Supreme Court, and when it does, it will be interesting to see what Justice Byron R. White thinks about the novel legal theory of the Bush Justice Department that the law protects one class of people but not another. Justice White has a little experience with this kind of street lawlessness carried on with winks and nods from local authorities -- first-hand experience gained 30 years ago when he was deputy attorney general.
In 1961, when civil rights activists called the "freedom riders" lTC sought to enter segregated bus stations in Alabama, they were not only blocked by mobs but beaten as well. Police stood by, and if anyone was arrested at all, it was the freedom riders, not their attackers.
When it became clear that local authorities were, in effect, in league with the mob, President Kennedy sent 600 federal marshals to Alabama, under the command of Deputy Attorney General White, to enforce a federal court injunction to protect the rights of the freedom riders. Until the federal marshals arrived to enforce the law, blood literally flowed in the streets of several cities of Alabama.
Granted, there has been no serious bodily injury in Wichita -- at least not so far. But it is preposterous to contend that an organized plan of action to blockade the entrances of medical clinics is not a form of violence. Just think for a moment: If a huge throng of strapping men, carrying signs which easily could be used as clubs, surrounded your home or your doctor's office and refused to allow you to enter, would you regard it as an act of violence? Would you call the police? And if the police did not act, would you call the FBI?
Based on indisputable evidence that such violence was being systematically carried out against law-abiding citizens in Wichita, Judge Kelly was wholly justified in concluding that the local authorities were condoning lawlessness.
Attorney General Richard Thornburgh, who is departing Washington to run for the U.S. Senate from Pennsylvania, takes the view that the federal injunction was not needed. But the proof was in the pudding. It was only after Judge Kelly made it clear that he would tolerate no more lawlessness, and backed up his threat with a large presence of federal marshals, that the demonstrators largely discontinued their blockades of the clinics. Then, three of the leaders of the movement got out of town, leaving a group of local fundamentalist ministers to face the jail terms Judge Kelly has promised to hand out if his injunction is disobeyed.
Thanks to Judge Kelly, order was restored in Wichita, and constitutional rights protected. The judge, who is on the scene while the president golfs from the safe distance of 2,000miles, believes that if the government prevails in getting the injunction overturned, violence will surely ensue. But this prospect apparently does not concern the president.
Can anyone imagine President Kennedy saying the protection of the freedom riders should have been left to the Alabama governor? It defies belief that President Bush, whose oath of office requires him "to preserve, protect and defend the Constitution of the United States," can find a difference between the right to ride a bus and the right to enter a medical clinic.
It's not likely that Byron White, given his experience, will buy such absurd distinctions. The question is, can he persuade his colleagues on the Rehnquist court, who have shown a marked proclivity for allowing the president to do anything he pleases?
Ray Jenkins is editor of the editorial pages of The Evening Sun.