High court seeks White House opinion in abortion-protest case
By The Associated Press
12.17.02
WASHINGTON — The Supreme Court put the Bush administration on the spot yesterday, asking for its views in a politically charged abortion case involving aggressive efforts to deter doctors from performing abortions.
The administration is being asked to consider whether a law that protects access to abortion clinics can be used to punish protesters who list doctors' personal information on the Internet and advertise doctors and clinic staff as "wanted" on posters.
Three doctors listed on posters were killed in the 1990s. Other physicians sued claiming they feared for their lives after being put on a new round of Old West-style wanted posters.
Justices have been asked to hear an appeal from the anti-abortion activists, who were ordered to pay nearly $110 million in punitive damages to the doctors for violating a racketeering law and the 1994 Freedom of Access to Clinic Entrances Act. The activists maintain that their activities are protected free speech.
The Bush administration's Supreme Court lawyer, Solicitor General Theodore Olson, could have filed the administration's opinion in the case without being asked, but didn't.
"I don't surmise the Supreme Court is intentionally passing the buck. But maybe the Court is prodding the solicitor general, saying 'This is the kind of case where we'd like to hear from you,'" said Keith Werhan, a First Amendment expert at Tulane University.
He said that the administration's lawyers may find themselves "a little torn, pulled in different directions because of the cross-tensions in the case."
The justices often, but not always, follow the recommendations of the government.
The Supreme Court has already gotten involved in one abortion-protest case that involves large penalties for demonstrators who interfere with abortion-clinic business. The Bush administration angered some conservative anti-abortion groups by siding with abortion-rights advocates in part of the case. That case was argued at the Court earlier this month.
A sharply split 9th U.S. Circuit Court of Appeals ruled that activists in the latest case tried to intimidate doctors and clinic staff. The lower court said, however, that the punitive damages award should be reduced.
Clinic employee information was passed out at rallies and put on a Web site called the "Nuremberg Files." It lists abortion providers' names and addresses and declares them guilty of crimes against humanity. The anti-abortion activists argue that the information is only lists of people they hoped to put on trial, just as Nazi war criminals were at Nuremberg.
Edward White III, the attorney for the anti-abortion activists, said they hoped the Bush administration urges the Court to overturn the appeals court decision. "The United States government is supposed to advocate and protect the First Amendment rights of its citizens," he said.
On the Nuremberg Files Web site, six of the Supreme Court justices are listed as abortion supporters. President Bush, who is generally anti-abortion, is criticized for not being protective enough of fetuses.
The case is American Coalition of Life Activists v. Planned Parenthood, 02-563.
In other action yesterday, the Supreme Court turned back an appeal from Libertarian presidential candidate Harry Browne, who sued Arizona because it wouldn't put him on the 2000 ballot. Browne made the ballot in every other state.
Browne challenged Arizona's qualifying deadlines for independent candidates for president. Because of a split in the state Libertarian Party, he decided to run in Arizona as an independent. The state requires independents to file qualifying papers about five months before an election and Browne missed the deadline. The case is Browne v. Bayless, 02-561.