MONDAY-MORNING COURTERBACKING

Naral Pro-Choice America has withdrawn its ad criticizing Supreme Court nominee John G. Roberts Jr. It’s hard to imagine what impact the ad had, as controversy somewhat overwhelmed the message, but at least new focus on the court decision referred to in the ad, Bray vs. Alexandria Women’s Health, makes for a good addition to the list of dubious Supreme Court accomplishments (Plessy vs. Ferguson, Newdow, Bush vs. Gore, et cetera).

The 6-3 ruling was that people seeking abortions (or other services at clinics providing abortions) could not seek protection from antiabortion protesters under the Ku Klux Klan Act of 1871. That act was to keep conspirators with “class-based, invidiously discriminatory animus” from depriving “any person or class of persons of the equal protection of the laws.”

Lower courts thought the act worked against the antiabortion protesters because the protesters discriminated against women. Roberts, in a friend of the court brief for the Reagan administration, wrote that, as The New York Times said yesterday,

The demonstrators were not singling out women for discriminatory treatment but rather were trying to “prohibit the practice of abortion altogether.” He told the court that even though only women could become pregnant or seek abortions, it was “wrong as a matter of law and logic” to regard opposition to abortion as the equivalent of discrimination against women.

This view is partially correct, but not in the way Roberts (or the majority of justices at the time) thought. Blocking access to abortions is not discriminatory to all women, many of whom would never seek an abortion. Blocking access to abortions is discriminatory, however, to anyone who is seeking one, which could be a man as well as a woman. The protesters would be just as much of a conspiratorial threat against a man seeking an abortion (or, in a biologically accurate way, accompanying a woman seeking an abortion) as they would be to a woman, just as the protesters would be no threat at all to a women — or a man — who would never seek an abortion.

Consider the Ku Klux Klan Act itself. The Klan was no threat to a black person who behaved as the Klan wanted it to, only to those who crossed the line in some way (or were perceived to have crossed a line). And that applies to white people as well as black, as was shown famously during the Civil Rights movement when white people were killed because they were helping black people gain more rights.

The real standard is action, not gender. Blacks were intimidated from participating in their legal right to vote, for instance, by white people who didn’t approve of them having political power — a deeply held, somewhat irrational and totally extralegal point of view. During the time of Bray, people seeking abortions were intimidated from pursuing a legal medical option by opponents with another deeply held, somewhat irrational (being usually based on a religion not shared by all) and totally extralegal point of view. Bray may even have had a chance (a far slimmer one) if pursued on religious grounds, as the protesters were largely discriminating against people who didn’t share their dogmatic beliefs about the sanctity of a fetus’ life and soul.

Either way, that the assailed persons or class of persons were women is somewhat beside the point, and if the case had acknowledged that, Roberts would have had little to write about.

Too late now, of course.