Second-Class Citizens

A member of the Supreme Court recently made a genuinely remarkable public admission, one that should cause grave concern not only to prolifers but to all Americans. In his dissenting opinion to a decision that let stand a 100-foot buffer zone around abortion clinics, Justice Scalia described abortion protesters as a "currently disfavored" class. In other words, one that is unlikely to prevail before the Court. I can't remember a time since the days of Jim Crow and segregation in the South, when the Supreme Court would acknowledge that a class of people was looked upon with disfavor. Think what this means. This is an absolutely remarkable phenomenon. Two years ago in Casey, the Court thought that it had resolved the abortion issue for good. It affirmed Roe vs. Wade, but it based abortion rights on the Fourteenth Amendment right to liberty, not on an implied right of privacy. Thus it rendered Roe almost impossible to be reversed by a later court. The justices hoped that would be the end of it. But the issue resurfaced in cases involving abortion protesters. Last year in the Madsen decision, the justices barred peaceful protests within 36 feet of a Florida clinic. Once again Justice Scalia dissented, arguing that the Court was setting a dangerous precedent. He described Madsen as ". . . a policy narrowly tailored to nothing but the suppression of lawful speech." Now, in the Court's most recent decision, the boundary for abortion protesters has been moved back to 100 feet. As Ohio State law professor Louis Jacobs put it, "The law is in hopeless conflict across the country." In attempting to wash its hands of the abortion controversy, the Court has succeeded only in compromising the right of free speech and creating confusion. The effect of all this is that abortion opponents are being treated like second-class citizens. Justice, the right of peaceful dissent, is being measured by a tape measure—and a different tape measure at that, depending upon which state you live in. And the unfortunate reality is that most people just don't care. But what they forget is that when the democratic process breaks down, eventually everyone is affected. One is reminded of the words of the German pastor Martin Niemoller in warning against the creeping tyranny of another day: "In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak." When your secular neighbors look at you askance for your prolife views, remind them that while we might be the currently disfavored class today, they may well find themselves in due course saying, "And then they came for me, and . . . no one was left to speak." The abortion debate in the courts is really about fundamental liberties for all Americans. For if any of us are deprived of our rights, any of us in a "disfavored class," the rights of every American are in jeopardy.

06/9/95