Clinton administration's legal opinion on abortion case sought by high court

January 20, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court gave the new Clinton administration yesterday the first test of its views on a hot controversy -- blockades of abortion clinics.

The court asked for the government's advice on the clinics' legal right under a federal anti-racketeering law to collect heavy damages from groups like Operation Rescue that attempt to shut the clinics down.

Besides issuing that request, the justices turned down a separate plea for a speedy response by the court to the plight of seven fertilized human eggs, now frozen in storage in Tennessee while their donors fight over their fate. The woman wants the eggs transferred to her body so that she might carry them to term, but the man wants them discarded so there would be no risk of his becoming a parent.

In addition, the justices sent an uncertain signal about the constitutional rights of students to be free from sexual molestation at public schools.

The court rejected two separate appeals, with conflicting outcomes, thus leaving the students' rights issue in the hands of lower courts.

One lower court has ruled that students have a constitutional right not to be sexually assaulted by their teachers, but the other lower court has ruled that they have no right not to be sexually assaulted by other students.

The justices' action continues the uncertainty.

The court's request for the government's views on abortion clinics' challenges to blockades will be handled by the new administration taking office today. Those views are expected to be filed in a matter of weeks.

The 1970 anti-racketeering law, originally adopted to get at organized crime's infiltration of ordinary business firms, has been read broadly by federal courts to cover a wide variety of criminal acts. Violations of that law can lead to tripled damages -- the heaviest dollar penalty known in federal law.

If the court ultimately denies clinics the chance to use that law against blockaders, it likely would mean that clinics have no protection under federal law when confronted by mass protests against abortion -- unless Congress enacts a new law, this year or in the future.

For several years, clinics have been seeking to use three existing federal laws against the blockaders: an 1871 civil rights law, the 1970 anti-racketeering law and an 1890 antitrust law.

Last week, the court itself came close to nullifying the clinics' opportunity to use the 1871 civil rights law, saying that that law was not designed to protect women seeking abortions from conspiracies against their rights.

A federal appeals court in Chicago ruled in June that neither of the other two laws is available to the clinics.

That case has now reached the Supreme Court, leading to yesterday's order asking for the government's reaction.

Although the court asked the Justice Department to discuss the anti-racketeering law as an option for the clinics, it did not ask for advice on the antitrust law -- a strong hint that the court is not interested in that question, and thus is willing to have that particular remedy withheld from the clinics.

The anti-rackets law, the appeals court had ruled, may be used only in situations in which law-breakers have an economic motive. There was no proof of any economic goal behind the clinic blockades, the appeals court said. The blockaders were only trying to shut down the clinics to stop abortions, not to gain any economic advantage or to raise any money from anti-abortion contributors, that court declared.

That decision came in a case filed by the National Organization for Women and two health clinics that perform abortions.

Their lawsuit has been pursued as a nationwide challenge to anti-abortion violence and blockades mounted by the most militant organizations and leaders in the anti-abortion movement.

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