Katie, could you give me some of your educational and personal background?
I graduated from Thomas Aquinas College in 1980, and from Boalt Hall in 1983. Two weeks after I took the bar exam, I married and moved to Indiana where my husband Bill was getting his law degree at Notre Dame. After he graduated, we moved to Washington, D.C., where Bill worked on the Senate Judiciary committee for a couple of years. We and our six children (ages 11 years to two months) now live in the Bay Area.
How did you become involved with pro-life legal work?
While we were in Indiana, I did legal research for Americans United for Life, which is based in Chicago. When we moved back to the Bay Area in 1987, I helped defend a pro-life pregnancy center that was being sued for false advertising, and just as that was winding down, Operation Rescue started gearing up. I handled several arraignments around the Bay Area, and also participated in a jury trial in Salinas.
Then we began seeing more and more lawsuits, at first just asking for injunctions (court orders) keeping pro-life counselors out of quasi-public areas such as parking lots and common walkways in office centers. That soon expanded to narrow “access zones” on public sidewalks, around the clinic doorways. When that first happened, the appellate court which upheld such a zone said it “declined to entertain quibbling over a few feet.” Now the zones stretch along entire blocks, and the courts are still quoting that language about not quibbling over a few feet.
Because I was a sidewalk counselor for several years, I really feel drawn to these cases. I can understand how the defendants must feel at being wrongfully accused of harassing women. I also understand the frustration they must feel at being prevented from being able to approach women, just to speak to them or hand them a leaflet.
Do these injunctions apply only to specifically named people?
The clinics come to court saying they need the zones as protection from the unlawful acts of certain people, and under the law, they can only get injunctions against those people. In practice, however, the injunctions are used to keep all pro-lifers away. What’s really being enjoined is contact with the women; the courts are making and enforcing a policy decision that it is better for the women not to talk with anyone on their way into the clinic, that being approached by any pro-life counselor violates the women’s right to privacy.
In Madsen v. Women’s Health Center, the Supreme Court ruled that these zones could be imposed to protect access to the clinic, when that access had actually and repeatedly been impeded. But lower courts have taken that opening and run with it, imposing zones nominally for access, but in fact to prevent contact between counselors and women.
What’s next down the slippery slope?
The next big question is whether the clinics can make the pro-lifers pay for exercising and defending their free speech rights. In the Blythe case, the picketers and counselors are facing over $200,000 in attorneys’ fees which have been awarded to the clinic. We are taking that case to the U.S. Supreme Court (for the second time), to ask the Court, now that it has ruled that even peaceful picketing and leafleting can be enjoined, can the people who lose their free speech rights also be held liable for monetary damages? Traditionally, injunctions are only issued to prevent wrongful acts, in which case making the loser also pay would be appropriate. But by making that leap to enjoining peaceful, lawful conduct, the system has become distorted. The old precedents just don’t apply to this context.
What role is LLDF taking in all this?
It is somewhat ironic that Life Legal, which prides itself on being in the trenches, giving legal first aid, as it were, is now doing a lot of appellate work. Aside from the work in the California courts, we’ve filed three petitions for certiorari (review) to the U.S. Supreme Court in the past year (with satisfactory results); we’ll be filing another three in the next few months.
At the same time, we still try to be there on the spot when the legal trouble first starts. As word of our existence gets around, and our list of lawyers grows, we are better able to respond quickly and effectively when people are threatened.
Which part are you involved in?
For the most part, I just write briefs, usually at the appellate level, but sometimes for trial courts. This works out well for me, because I can do this in the evening, on my own time, rather than trying to put my family on hold during the day, in order to make court appearances. Also, I enjoy writing briefs; you get the opportunity to think through a whole argument, to draw out all the conclusions. I’m much better suited to that than standing in front of a judge, trying to think on my feet and make a good impression while under pressure.
What trends do you see nationally for the pro-life movement?
Supreme Court Justice Scalia made an interesting comment recently, in voting not to hear a case about some pro-lifers who had been enjoined from picketing an abortionist’s house. Though Scalia obviously thought the decision should be reversed, he voted with the other justices not to hear the case, because he thought that proper consideration of the legal issues was “unlikely to occur in another case involving the the currently disfavored class of antiabortion protestors.” That’s a strong statement. He is publicly saying he believes that different rules are being applied to pro-lifers. Of course, we’ve been saying that for years; we call it the “abortion distortion.”
Up till now, otherwise lawful activity, such as picketing, has been enjoined only when it was accompanied by pervasive violence, when it was virtually impossible to separate the picketing from other activities which caused substantial damage to persons and property. And courts made an effort to distinguish lawful from unlawful conduct, and to distinguish the wrongdoers from those who just were backing the same cause. With these abortion cases, all that has gone by the wayside; the burden of proof has shifted and the underlying presumption is that all pro-life activism is tinged with violence, and all pro-lifers are jointly responsible.
It’s a real eye-opener to read some older cases, in which, for example, a picket was accompanied by broken windows, tacks strewn in driveway, face-to-face death threats, etc., and then the court concludes, “Well, that was only a few incidents, and nobody got seriously hurt, so we don’t think an injunction is necessary.” Compare that to the abortion cases, where if cars just have to slow down when they turn in to a driveway, that is considered sufficient to justify a “speech-free” zone.
As we say in the legal profession, yes and no. I think a lot of people are afraid of things which don’t pose that much of a threat, such as being arrested under FACE, the new federal clinic protection law. Though FACE has vague language about “intimidating” and “interfering,” the law explicitly requires the use of “force, threat of force, or physical obstruction.” What makes FACE objectionable is not what it prohibits; that stuff was already illegal. It’s also not that it permits frivolous lawsuits; that potential has always been there under existing laws. What is obnoxious about FACE is that it singles out conduct for special and severe penalties because of the pro-life motivation behind it.
What I see as more ominous is the trend toward defining certain pro-life activities, particularly picketing and counseling, as “harassing” and “threatening” activities which in and of themselves are unlawful. This is definitely what the pro-aborts are pushing, using the “right to privacy” and “access to health care” as trump cards. I think a lot of courts have bought into this, though they try to avoid coming right out and saying it. This is really the core issue in a lot of our cases right now which are going up on appeal.”
