States Can Deal with Murder

August 18, 1994|By JAMES J. KILPATRICK

WASHINGTON — Washington.--On July 29 in Pensacola, Fla., a fanatic, one Paul Hill, murdered Dr. John Bayard Britton and his bodyguard Jim Barrett. Mr. Hill thus violated the recently adopted Freedom of Access to Clinic Entrances Act of 1994.

Dr. Britton headed an abortion clinic. Paul Hill regards abortionists as murderers. Killing an abortionist, in his view, is justifiable homicide.

The case presents no problems of identity or evidence. A dozen witnesses saw Mr. Hill lift a 12-gauge shotgun and press the trigger. But identifying a killer is one thing; convicting him is another.

On Aug. 12 a federal grand jury indicted Mr. Hill under terms of the new federal law. He has pleaded not guilty and will go to trial in U.S. District Court on Oct. 3.

Meanwhile, he has been arraigned on two charges of murder under state law. The federal act authorizes life imprisonment for killing any person who ''provides reproductive health services.'' Florida law authorizes a death sentence.

If it is not already too late to cancel the federal trial, Attorney General Janet Reno should call off her prosecutors.

Stripped of its ideological aspects, this case is a routine homicide, not distinguishable at law from any of the 25,000 other murders that will occur across the nation this year.

The city of Pensacola is perfectly capable of trying the accused. Why should federal prosecutors and judges intervene?

In recent years, Congress has fallen into a bad habit of pre-empting state and local jurisdiction in criminal cases. The process began, I suppose, following the Lindbergh kidnapping of 1932. The trend has continued apace ever since.

Dozens of criminal offenses, most of them involving drugs or firearms, now may be tried in federal courts. Mr. Hill also is charged under federal law with using a shotgun in a crime of violence.

Another recent federal law prohibits possession of a firearm in or near a schoolhouse. Granted that schoolhouse violence is a serious problem, why is it a federal problem? At bottom, it's a state problem.

This most recent intrusion upon state obligations, the Freedom of Access to Clinic Entrances Act, is a bad piece of business.

It takes from the states another chunk of their criminal jurisdiction; it rests upon a tortured reading of the Constitution; and it may be wrongly invoked to suppress legitimate free speech.

The Constitution puts limits upon the powers of Congress. In a lame effort to rationalize this access-to-clinics law, its sponsors cite the powers granted to Congress under the Commerce Clause and the 14th Amendment.

The reasoning goes this way: Clinics purchase medical supplies from other states. Patients may drive to Pensacola, Fla., from Mobile, Ala. Clinic employees may live just across the Alabama line.

The anti-abortion Operation Rescue is a kind of nationwide conspiracy beyond the resources of local law enforcement.

''Clearly,'' said the Senate committee, abortion services affect interstate commerce. On this sadly familiar stretching, everything under moon or sun affects interstate commerce.

Under the 14th Amendment, no state may deprive a person of ''liberty'' without due process of law. When abortion demonstrators block access to a clinic, they are hampering the liberty of a woman seeking to obtain an abortion.

True, the 14th Amendment applies only to state action, not to private actions, but no matter: Local police are overwhelmed by the protesters. Willy-nilly, the feds must take command.

The act makes it a criminal offense, punishable by a fine of $10,000 and six months in prison, for any person to ''interfere'' with any person obtaining or providing reproductive health services. The term ''interfere with'' means ''to restrict a person's freedom of movement.''

Very well. Under this sweeping statute, if an anti-abortion protester kneels quietly in prayer on a public sidewalk leading to a clinic, the protester is a criminal. Yes, the act contains a disclaimer. It is not to apply to ''peaceful demonstrations,'' but one woman's quiet prayer is another's disorderly conduct.

A further objection is that the act manifestly applies only to those opposed to abortion. Pro-choice pickets are immune.

In the homely phrase, this is dirty pool. I don't much care what happens to Paul Hill, but I care deeply about what happens to federalism and free speech. This law is a bummer.

James J. Kilpatrick is a syndicated columnist.

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