Inappropriate law
Posted by aogSunday, 31 August 2003 at 10:40 TrackBack Ping URL

Orrin Judd posts about a recent decision by the Department of Justice concerning a law that forbids blocking access to abortion clinics. The law was overturned by a federal judge in Houston on the grounds that is is un-Constitutional, exceeding the bounds of the Commerce Clause. I will pass over the issue of Attorney General Ashcroft’s political and personal views, as those are well covered elsewhere.

The judge is probably correct. While the law can be viewed as a defense of property rights, that’s not the function of the federal government, but of the State and local goverments. One might argue that its valid under the Fifth Admendment (“nor shall private property be taken for public use, without just compensation” where public protests are considered public use) but that’s somewhat weak. [That’s an interesting can of worms - what private property rights can Congress legislate? Interstate ones, clearly, but intrastate? Hmmm] I think the basic thrust of the law is correct, that private third parties should not be permitted to interfere with the legal use of other people’s property. But that doesn’t make it a legimate exersise of federal power.

But what I find really bizarre is the particular aspect that Mr. Judd objects to:
The decision freed a man who had rammed a van through the front door of a Planned Parenthood clinic in Houston in a protest over abortion.
Since when is the only law against deliberately driving a van through someone else’s door the “Freedom of Access to Clinic Entrances Act”? If someone gets upset at my weblog and drives a van through my door, am I without recourse because that law doesn’t apply to my house?

This one of the defects of having these kind of highly specialized, “political” laws. There have been other cases that puzzled me in a similar way involving workplace “sexual harrasment”, where the offenses were things like trapping a female co-worker in bathroom and feeling her up. That’s not “workplace harassment”, that’s sexual assault. The fact that the guy was a co-worker seems completely irrelevant to me. Or hate crime laws, such as in the case of Matthew Shepard. This is used as an example of the need for hate crime laws, but given that the death penalty was handed down without them, what’s the point? What was done was handled just fine by existing, standard law. In the same vein, charging the van driver under the clinic access law rather than vandalism, trespassing and reckless endangerment seems pointless. The former kind of law seems to pre-empt the latter, more “boring” kind of law. It’s a kind of attractive legal nuisance.

Comments — Formatting by Textile
oj Sunday, 31 August 2003 at 20:02

One problem is that the Justices have turned things like flag-burning into “speech” too.

End of Discussion