NEW YORK -- In a novel ruling that has startled both sides in the abortion debate, a federal judge has decided that two anti-abortion protesters committed no crime when they blocked access to a Westchester County clinic because they were motivated by "conscience-driven religious belief."
The protesters, a retired Roman Catholic auxiliary bishop and a Franciscan friar, could have been found in criminal contempt of an order by the judge, John Sprizzo of U.S. District Court in Manhattan.
He had told them to abide by a 1994 federal law that protects the entries and exits of clinics.
But the judge, invoking a 1970 Supreme Court decision in favor of a Vietnam War conscientious objector, said that the men had been acting on "sincere, genuine, objectively based" religious convictions.
And since he was sitting as jury as well as judge in the October bench trial, he acquitted Bishop George E. Lynch and Brother Christopher Moscinski under a rarely exercised privilege that permits jurors to vote in defiance of a law if they believe it is wrong.
The judge's decision, said abortion opponents, has given fresh impetus to their movement.
"He surprised us all," said A. Lawrence Washburn Jr., a surprised but delighted lawyer for the defendants, who said the judge had relied on original research for his ruling, issued last Monday, just days before the 24th anniversary of the Supreme Court's Roe vs. Wade decision. "Judge Sprizzo has pointed the way."
Yesterday, at the weekly demonstration in front of the clinic, Women's Medical Pavilion in Dobbs Ferry, about 25 protesters gathered, according to the police. Arthur Gallagher, one of them, said, "The decision was a victory for all of us, and a victory for free speech."
As word of the acquittal spread, abortion-rights supporters reacted with alarm.
"It's an off-the-wall, scary decision," said Donna Lieberman, director of the Reproductive Rights Project of the New York Civil Liberties Union.
"It's so close to the Atlanta bombings and practically on the anniversary of the Brookline attacks," she said, referring first to the bombing of a clinic last week, then to shootings on Dec. 30, 1994, at a Massachusetts clinic.
The case was the first effort by Mary Jo White, the U.S. attorney for the Southern District, to enforce the Freedom of Access to Clinic Entrances Act, which has been credited with the significant drop in violence at clinics.
Although there have been several constitutional challenges to the law, federal appeals courts have upheld it. The Supreme Court has so far declined to examine it.
The defendants, Lynch, 79, and Moscinski, 27, who is known as Brother Fidelis, have each been arrested more than 20 times for protesting at clinics, often with other members of Operation Rescue, the anti-abortion group. The Dobbs Ferry clinic is a regular target.
White's office pursued them after an arrest on May 13, 1995, when they sat in the clinic's driveway.
Under the law, the government may proceed against protesters either with a civil lawsuit, in which a judge can impose fines and order the behavior to stop, or criminal prosecution. Federal prosecutors began with the civil route.
The case came before Sprizzo, an appointee of President Ronald Reagan who is a former federal prosecutor and law school professor. He has a reputation among federal practitioners as a brilliant conservative with a supremely confident manner.
In February 1996, Sprizzo issued a permanent injunction against the two, saying they could not block the driveway. He declined to order fines or create a buffer zone.
In April, Lynch sat against the clinic doors. In July, the judge held the bishop in civil contempt but refused to order further sanctions.
On Aug. 24, the bishop and the friar were again arrested for sitting in the clinic driveway. The government asked Sprizzo to find them in criminal contempt of his February injunction, for which they could have served up to six months in jail.
Monday's acquittal was a response to that request.
Sprizzo said the defendants had not prevailed under their own theory of "necessity" -- that they had acted in order to save lives.
Yet he did not find that they had been in criminal contempt of his order, because they had not defied him "willfully," conduct he defined as having "bad purpose."
Instead he turned to a 1970 Supreme Court case, United States vs. Sisson. In that case, a judge overturned a jury's conviction, finding that a man who had refused induction because of his objection to the Vietnam War could do so because of his "sincere moral beliefs."
Vicki Saporta of the National Abortion Federation, a Washington-based association of abortion providers, said such reasoning would allow the police as well as protesters to ignore the law.
In the absence of enforcement, she said, "People will take it to the next level and then the next, and they end up getting violent."
White, the U.S. attorney, said, "I have personally reviewed the opinion, and we will appeal it if the law permits."
But Akhil Reed Amar, of Yale Law School, said that the decision could not be appealed because of the prohibition against double jeopardy: the case ended in an acquittal, not a conviction. "Some folks think an erroneous judicial decision can be appealed, but in this case he's sitting in lieu of a jury," said Amar.
And the crime is not a violation of the law but a defiance of a judicial order. "It's a crime against the judge," said Amar. "If he wants to forgive and forget, he has the power to do so."
Pub Date: 1/19/97
