By George Will, Washington Post

February 1994 – The Indiana judge, with the brio of an abstract artist, and similar results, improvised.

“I didn’t want to send them to jail,” he said of the criminals whose crimes were two misdemeanors, obstructing pedestrian traffic and trespassing during protests at two abortion clinics. “But I did want them to do something that would make them uncomfortable, make them think about what they’re doing.”

To fine-tune their thoughts, this judge sentenced them to sit quietly in an abortion clinic for eight hours. But advanced artists often encounter unappreciative audiences. Staff at the clinics said the mere presence of the punished protesters might intimidate clients. The protesters said their presence would violate their consciences and might get them excommunicated from their churches.

So the judge sentenced the protesters to sit through a Planned Parenthood seminar, but with a right of rebuttal. Planned Parenthood complained about the rebuttal, saying the aim was supposed to be punishment, not balance. So the judge dropped the rebuttal provision. The protesters then appealed to the state Supreme Court which will sort this out.

Extremism in pursuit of right-to-life protesters, including those who are not extremists, is no vice, according to extremists on the other side. Florida’s Supreme Court recently upheld an injunction that, in effect, bans sidewalk counseling by right-to-lifers of persons approaching an abortion clinic unless those persons have “invited contact.” Imagine similar restrictions in the 1960s on civil rights protesters outside segregated facilities.

This week the U.S. Supreme Court considered whether the Racketeering Influenced and Corrupt Organizations Act can be used against right-to-life protesters. The court has hitherto held that the aim of the act is “to remove the profit from organized crime by separating the racketeer from his dishonest gains.” Turning RICO against social protests that do not have economic motive would be a travesty.

Some anti-abortion protesters break local laws. All conscientious practitioners of civil disobedience accept the penalties as part of the cost of trying to change society’s mind. Some anti-abortion extremists have resorted to violence. Such acts are, of course, crimes under state laws.

But last month Congress, never letting pass an opportunity for grandstanding, came up with “clinic access bills.” The federal government has become what it is—an overreaching underachiever—partly because so many legislators seem to believe that every good idea should become a federal program and every bad idea should become a federal crime. Fortunately,  Congress’ attempt to federalize the subject of abortion protests resulted only in comic relief.

The House and Senate drafted similar bills to impose severe penalties on anti-abortion protesters, and only on them, no merely for acts of criminal violence, but even for passively obstructing access to a clinic, or for “interfering with” or “intimidating” anyone—however those terms might be construed. If right-to-lifers were to continue using some tactics made familiar by civil rights and anti-war protesters, they would be subject to a year in jail and $100,000 fines for a first offense. For a second, three years, $250,000. No other protest group—labor, environmental, feminist, animal rights—would face similar penalties for similar acts.

But a funny thing happened to the clinic access legislation on the way to an end-of-session White House signing ceremony. A few weeks ago, on a Tuesday, Sen. Orrin Hatch (R-UT) inserted a small amendment extending to places of worship the same protections the bill extended to places of abortion.

House supporters of the access bill had hoped to accept the Senate bill, thereby avoiding a time-consuming conference to iron out differences. But the gay rights lobby weighed in. It opposed Hatch’s amendment, which would extend severe punishment to protests of the sort militant homosexuals direct against churches.

So on Thursday the House passed a clinic access bill without a Hatch-type amendment, with the leadership using the House’s restrictive rules to prevent a vote on such a provision. However, the leaders knew that if they tried to appoint conferees, a House majority would vote to instruct them to accept the Hatch amendment.

Late Friday evening Ted Kennedy tried to bring up the House bill in the Senate. But he needed the unanimous consent of the Senate to do so, and he could not get it. Hence both bills died.

That is all that prevented Congress from making, for the first time in 143 years, peaceful civil disobedience on behalf of a single cause a federal felony. It has not done that since 1850: the Fugitive Slave Law.