Keep Your Distance

By DAVID VAN BIEMA

Eleanor Smeal and her opponent Judy Madsen were sitting (separately) in the Supreme Court audience last Thursday, waiting for the court's opinion in Madsen v. Women's Health Center, when to their mutual surprise William Rehnquist rose to deliver it. Recalls Smeal, president of the pro-choice Feminist Majority: "I figured, 'That's it, we lost.' I saw Rehnquist, who opposes us, and my heart sank." For her part, Madsen, the pro-life activist after whom the case was named, remembers, "I tried to make eye contact with Rehnquist. I wanted him to see me, and I think he did." Then the Chief Justice began reading, she reports, "and I felt numb." Says Smeal: "It took me a few seconds of listening to realize we had won."

The two women, usually in passionate disagreement, were unanimous in their assessment of the Madsen verdict, as were their respective comrades. All believed that the 6-to-3 decision, which sustained an injunction barring pro- life protesters within 36 ft. of a Florida abortion clinic, was a major defeat for antiabortion crusaders. Jay Sekulow, chief counsel to the conservative American Center for Law and Justice, calls Madsen "a devastating blow for the pro-life movement." Says Sally Goldfarb, an attorney with the NOW Legal Defense and Education Fund: "The pro-choice movement now has the weapons it needs to pose a formidable legal challenge to future antiabortion harassment."

In fact, Madsen consolidated the theoretical right to abortion established in Roe v. Wade with the facts on the ground -- the pregnant woman's ability to reach the clinic and exercise that right. It capped similar developments over the past year as lawmakers responded to a wave of blockades, harassment campaigns and occasional violence by stepping in to protect the clinics. May was especially busy. On the ninth, a jury in Houston ordered disrupters of a Planned Parenthood clinic in 1992 to pay a whopping $1.01 million in punitive damages. Seven days later, under Clinton Administration pressure, the French maker of the abortion pill RU 486 ceded its American patent to a New York contraceptive-research organization, hastening the drug's production here and presumably a resulting spread of abortion services beyond surgical clinics. Then on the 26th, Clinton signed the Freedom of Access to Clinic Entrances Act, imposing daunting prison terms for nonviolent as well as violent clinic disruptions. Said Planned Parenthood president Pamela Maraldo: "Finally we have our forces together, and we're winning."

Madsen originated at the embattled Aware Woman Center for Choice clinic in Melbourne, Florida. Protesters regularly blocked the clinic's doorway and climbed the fences to yell things like "Mommy! Don't kill me! They're ripping my arm off!" at clients. Aware Woman was attacked with butyric acid and its locks were jammed with glue; its staff members were stalked and threatened and their neighbors and children accosted. Finally, last year, a month after the murder of Dr. David Gunn by an antiabortion zealot 275 miles away in Pensacola, a circuit judge acted: he replaced a limited injunction against clinic violence at Aware Woman with one of the most severe arrangements in the country. In addition to the 36-ft. taboo zone, he forbade protesters within a 300-ft. radius to approach patients and employees unless invited, and he drew an equally large circle around the houses of clinic staff. Madsen and others sued, claiming that the injunction infringed on free speech, was skewed against pro-life sentiment and was too overreaching. Mathew Staver, their lawyer, noting that 300 ft. is almost the length of a football field, maintained, "This injunction, instead of using a surgeon's scalpel, cuts with a butcher's knife." No one knew how the Justices would see it.

They objected to the 300-ft. prohibitions and other clauses. But they allowed much of the smaller zone, which Rehnquist wrote "burdens no more speech than necessary to accomplish the governmental interest at stake." This drew a blistering dissent from Justice Antonin Scalia, who accused his colleagues of creating a standard of tolerance for injunctions against all kinds of speech -- to serve a fondness for abortion rights, which, he thundered, now "claims its latest, greatest and most surprising victim: the First Amendment."

Later, even pro-choice Harvard scholar Laurence Tribe admitted that "some risk of chilling protected speech exists." And litigator Staver warned darkly that activists denied a peaceful outlet "will end up expressing themselves in other ways." Operation Rescue director Flip Benham's first reaction seemed to justify that fear: "We won't stop until they kill us," he said. "((The Justices)) have shaken their fists at almighty God, and they are now dust." Later, however, Benham was more subdued. "It will cost so much," he says. "We will spend months and years in jail. We're all trying to weigh this."

With reporting by Ann Blackman/Washington, Andrea Sachs/New York and Sarah Tippit/Melbourne