WASHINGTON -- Three Supreme Court justices who hold "swing" votes on abortion asked seemingly troubled questions yesterday about the impact on civil rights if abortion clinics lose the protection of federal law against Operation Rescue blockades.
Those three -- Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter -- took an active part in a one-hour hearing on a case that could have a major effect on the nationwide campaign to stop abortion by shutting down clinics.
Remarks or questions by those three justices made it appear that they were concerned that a ruling against the clinics could have widening repercussions, perhaps limiting federal protection in general when individuals exercising a federal right face a massive demonstration by opposing forces.
At one point, for example, Justice O'Connor dismissed as "a very strange argument" one of the main legal points made by Jay Alan Sekulow, the Washington lawyer for the militant anti-abortion group, Operation Rescue. He was urging a narrow reading of an 1871 civil rights law so that clinic blockades would not be subject to that law.
The questions or comments justices ask are not necessarily reliable hints of how they would vote but may indicate how a justice is thinking about an issue.
Yesterday's hearing on the new clinics case was a judicial echo of last summer's hot controversy in Wichita, Kan., where a federal judge jailed leaders of Operation Rescue for defying his orders protecting clinics there from a blockade.
Although the new case involves blockades three years ago, at clinics in the Washington, D.C., area, the Wichita dispute appeared to be clearly in the background. The clinics' lawyer, in fact, mentioned the incidents in that Kansas community in finishing his argument.
That attorney, John H. Schafer of Washington, said that state governments wanted the court to preserve federal civil rights protection, so that state and local efforts to control the blockades were buttressed by the great weight of federal law.
Mr. Schafer also made an emotional plea for keeping federal protection, saying women barred from clinics get little protection under state or local law.
He asked rhetorically: "Would a young lady trapped in a car [by a blockade], bleeding, in a parking lot [outside a clinic]" have a right to sue for trespass, since the clinic was not her property?
And, the lawyer asked, "Whom does she sue? She does not know who is surrounding the car."
The Bush administration has argued, during the Wichita incident as well as in the case the court considered yesterday, that control of unrest outside abortion clinics should be left to state and local officials enforcing their own laws.
Since two moderate-to-liberal justices, Harry A. Blackmun and John Paul Stevens, are considered likely to favor continued federal protection for clinics faced with blockades, the votes of Justices O'Connor, Kennedy and Souter appear to be critical to making a majority for that position.
The case heard yesterday is not an abortion case as such. Rather, it involves the scope of the 1871 civil rights law that outlaws plots by private individuals or groups to interfere with someone else's rights.
But Justice Blackmun, who wrote the original abortion ruling in 1973, in Roe vs. Wade, pointedly asked a Bush administration lawyer whether the administration was asking that the court use the clinics case as an occasion for overruling Roe vs. Wade.
When Deputy Solicitor General John G. Roberts Jr. replied that that was "not an issue" this time, Justice Blackmun shot back: XTC "That hasn't prevented the solicitor general from doing that in past cases" -- a reference to two prior efforts by the Bush and Reagan administrations to get the court to overturn the Roe ruling in cases where the fate of that decision was not directly in question.
The new case tests whether women are protected, as a group, by the 1871 law when they are exercising their constitutional rights and, in particular, whether women's rights are violated if pregnant women are denied access to clinics by a private "conspiracy," as in a blockade. Lower courts generally have said that the 1871 law does provide protection in that situation.
Mr. Sekulow, representing blockade leaders, argued that the anti-abortion protesters had no ill feelings toward women as a class but that they were staging their clinic shutdown operations only to target abortion.