May It Displease the Court: Corporations Use “Operation Rescue”-Style Tactics To Oppose Abortion

Physical "rescues" were meant to harass clinics out of existence. The new "civil disobedience" call of anti-choice corporations refusing to cover contraception and sterilization procedures even in the face of federal court order to the contrary is just the corporate version of this same sit-in tactic.

Anti-choice protestors in Wichita, KS in 1991. (Kim D. Johnson / The Wichita Eagle)

The year 2013 is the 40th anniversary of Roe v. Wade and legalized abortion in all 50 states. It is also the year that forty-three complaints and counting against the Health and Human Services contraception mandate are working their way through the federal court system. How are the two related?  It’s simple.

Religious corporations are the new arm of the “rescue” movement.

In the early days of anti-choice activism in the late seventies and early eighties, when clinic “sit-ins” were introduced and made popular by leaders like John Cavanaugh O’Keefe and Samuel Lee, the protests at reproductive health providers were more reminiscent of the 60’s style civil rights movement that inspired the key players. Before they were deemed “rescues,” clinic protests were focused more on the act of civil disobedience and involved large groups that would block entries or enter clinics and refuse to leave until police presence would remove them from the property.

In the late seventies and early eighties, St. Louis, Missouri became the epicenter of the movement, and for a clear reason. According to James Risen and Judy Thomas in their book “Wrath of Angels: The American Abortion War,” a perfect storm of passionate anti-choice activists, law enforcement officials reluctant to participate, and a court system unwilling to prosecute turned small protests into a growing and incessant local movement. Police would refuse to respond to protest calls from local clinics, arriving only after an actual sit-in was underway and doors were blocked or protesters were already inside.

The courts were no better. Risen and Thomas write:

While the police were dragging their feet, judges and juries continued to acquit  [Sam] Lee and the others on the basis of the necessity defense [the idea that breaking a law is allowable if it is performed in the act of stopping a more serious crime]; in some cases the charges were simply dropped or dismissed. St. Louis was full of conservative Catholic lawyers who were eager to represent the activists for free; ten to twenty attorneys from a local group called Lawyers for Life often were crowded around a defense table during cases related to sit–ins. Their success in the courts kept the activists coming back for more. Sam Lee was arrested fifty times before he was ever convicted. He never spent a night in jail until 1983, five years after his first sit-in.

Non-violent but massive sit-ins began to disappear in the city after the local Catholic Bishop spoke out against them, taking away the cloak of sanction and support from the Church that the original group possessed and deterring a number of the original activists, many of whom were leaders in the local right-to-life movement which was originally established as a wing of the National Council of Catholic Bishops. It was only after John Ryan continued on, eventually drawing together a more radical-leaning and bolder group of followers—among whom former Congressman Todd Akin was a member—that the more modern version of the “rescue” movement began.

Even once they became more aggressive, intimidating and militant, the groups had a two-pronged attack in their arsenal. The actions themselves were meant to stop abortions from happening at that moment, but the scale of the protests and attacks were developed as a means of clogging up a court system that was mostly unwilling to deal with them. One major leader of the rescue movement, Joan Andrews Bell—referred to often by her cohorts as “St. Joan of Newark” because of her frequent arrests—explained her new idea of non-cooperation both in being arrested and being held in jail as a way to slow down courts systems and become such a burden that no one would even bother with an arrest. Risen and Thomas write that at a 1985 Pro-Life Action Network (PLAN) conference hosted by Joe Scheidler and featuring John Ryan, Andrews said:

[M]aybe the way you can keep out of jail is by totally not cooperating. I would recommend that, while you are at the death chamber, to hold on, to try to prevent, non-violently, your removal. Once you are in the paddy wagon, or once you are in the jail, don’t cooperate. Be silent, go limp, don’t give your name…We should put the burden on the opposition,  those that are trying to prevent us from rescuing children… [W]hat jail would want you? …If they won’t keep you in jail you could come back week after week.

The potential burden, both in the court system and the prisons, was one at which the rescue movement became even more adept when Randall Terry began protesting clinics with his Operation Rescue followers staring in the late eighties. During the “Summer of Mercy” campaign in Wichita, Kansas in 1991, Peggy Bowman, former spokeswoman for Dr. George Tiller and his clinic during the protests, wrote in her 2005 memoir “Fetus Fanatics” that the sheer number of people involved, as well as the anti-abortion bent of the city’s leaders, were responsible for much of the chaos that surrounding the six-week long siege on the clinic. Bowman writes that prior to the event, the city officials tried to convince the clinics to close for a week to deter protesters and cut the costs that could be incurred by arrests, trials and jailing of anti-choice activists.  “The answer to the question ‘Why Wichita?’ had now taken on an additional explanation,” wrote Bowman. “In Wichita, Operation Rescue found police who could be intimidated.”

Bowman recounted the fliers that preceded the protests that were sent about the city which read: “OBEYING GOD’S WORD – Civil disobedience is not the issue – Biblical obedience to the command to rescue innocent unborn children from death is the issue. We must obey God rather than men.”

Obeying God meant tearing up injunctions telling them to allow women access to the clinic, and hundreds of arrests a day. Bowman writes that most of these arrests were released after an agreement to pay $25.00 in court costs, despite massive amounts the overall protest ended up costing the city in law enforcement and other issues. Just halfway into the siege Bowman reported that:

The costs to the city were now over a quarter of a million dollars. Arrests totaled nearly 1400 and it was not even the end of July. Police arrested some fetus fanatics as many as eight times. Only the first 288 had seen a judge, most were booked and released with a promise to pay $25 in court costs. The law allowed fines up to $500 on loitering charges or up to $1000 and six months in jail for trespassing. The courts acted as those laws didn’t exist. Acting on the [temporary restraining order] was non-existent.

The plot to jam the courts until they can no longer function is a tactic in the anti-arsenal as old as the movement itself. When theologian Francis Schaeffer, credited as one of the key influencers of drawing the Evangelical movement into the political scene by alerting them to the need to fight for their Biblical standard of social values, wrote his 1981 work “A Christian Manifesto,” one of the issues he commented on was the potential need to use civil disobedience in paying taxes as a way to protest abortion, a move that would no doubt bring the participant inevitably into the court system.

In our day, an illustration for the need of protest is tax money being used for abortion. After all the normal constitutional means of protest has been exhausted, then what could be done? At some point protest could lead some Christians to refuse to pay some portion of their tax money. Of course, this would mean a trial. Such a move would have to be the individual’s choice under God. No one should decide for another. But somewhere along the way, such a decision might easily have to be faced.  Happily, at the present time in the United States the Hyde Amendment has removed the use of national tax money for abortions, but that does not change the possibility that in some cases such a protest would be the only way to be heard. One can think, for example, of the tax money going to Planned Parenthood which is openly a propaganda agency for abortion.

Much like the early days of the anti-choice “rescue” movement, the initial court challenges against the contraception mandate have been pursued by Catholic corporations, schools and non-profits. They have since been joined by evangelical-owned for-profit businesses such as Hobby Lobby in a marriage of Christian-based activism and strategic corporate opportunity. 

It’s a resistance effort that requires wide-scale coordination, and that’s where organizations like The Becket Fund and the Thomas More Law Center come in. Organized as non-profit, public interest legal and educational businesses, these businesses are the legal force behind the carpet-bombing of lawsuits challenging the contraception mandate in federal court.

The strategy, though, is not just to blanket the legal system with lawsuits until the administration is too overwhelmed with defense costs to continue with the mandate, or until there’s enough conflicting rulings to guarantee review by a presumed-friendly Roberts Court, or both. Not satisfied to simply use the legal system to defend their clients’ perceived legal injuries in providing insurance coverage for contraception and related services, anti-choice litigators are counseling clients like Hobby Lobby to also actively defy both the administration and the federal court rulings ordering contraception coverage. Supporters compare the defiance to the Birmingham bus boycott where “good citizens finally got fed up with having their rights trampled on, and decided to challenge those who favor conformity over freedom” applauding the bravery of a corporation to take on financial penalties as the civil rights cause of our day.

That, in the end, is the goal of the anti-choice movement. Physical “rescues” were meant to harass clinics out of existence. The “civil disobedience” call of the anti-choice organizations refusing to cover contraception and sterilization procedures even in the face of federal court order to the contrary is just the corporate version of this same sit-in tactic.

However, because rescues have now become a corporate-driven enterprise they are necessarily more sanitized, and to sanitize the “rescue” anti-choice activists moved away from physical occupations to legal ones. This allows them the opportunity to control their message, something much more difficult when managing a physical sea of people. We see this in the copy-cat legal filings where the Becket Fund and the Thomas More Center file essentially the same brief in every challenge as a way to control the legal framing of the dispute in every federal circuit. And we see this when the messaging wing of the movement invokes Birmingham in a defense of Hobby Lobby and corporate opportunism.

First, corporations became people. Now, they are “rescue” protesters in their own right.