By McCarthy, Colman
National Catholic Reporter , Vol. 29, No. 14
Constitutional differences between race and class discrimination have been clarified by Justice Antonin Scalia and muddied by Justice John Paul Stevens. The two jurists were on opposite sides in Bray v. Alexandria Women's Health Clinic, a case involving the rights of antiabortion protesters to demonstrate outside an abortion facility.
In a 5-4 vote Jan. 13, with Scalia writing for the majority, the Supreme Court ruled that there are "common and respectable reasons" for opposing abortion and that protests at the Alexandria, Va., clinic were not equal to discrimination against women. A federal law, the Ku Klux Klan Act of 1871, prohibits conspiracies to deprive "any person or class of persons of the equal protection of the laws."
Because only women can have abortions, argued the National Organization for Women's Legal Defense and Education Fund and citing the 1871 law, obstructing access to a clinic is a class-based action against women.
That would be persuasive, except that women -- assuming broadly, as NOW did, that they are a class in the first place -- are anything but united on opposition to abortion. Many of those arrested at clinics are women. "Men and women," wrote Scalia, "are on both sides of the issue."
The 1871 law focused on race discrimination. It was stretching it to equate some civilly disobedient right-to-lifers with hooded white supremacists with lynching and murder on their bigoted minds. Yet stretching is what Stevens did when writing his dissent: "The case involves no ordinary trespass, nor anything remotely resembling the peaceful picketing of a local retailer. It presents a striking contemporary example of the kind of zealous, politically motivated, lawless conduct that led to the enactment of the Ku Klux Klan Act of 1871 and gave it its name."
Scalia's argument -- balanced and well-reasoned -- doesn't leave abortion-seeking women unprotected. Demonstrators who trespass, harass or disrupt can be arrested and removed by local or state police, not federal marshals. "Trespassing upon private property," wrote Scalia, "is unlawful in all states. …