By Stuart R. Wahlin
Feb. 7, a day before the Rockford City Council’s Codes and Regulations Committee voted to table a proposed “bubble zone” ordinance for two months, Thomas Brejcha, president and chief counsel of the Thomas More Society Pro-Life Law Center, issued a letter to council members, urging them not to adopt the controversial measure.
Although the ordinance would apply to all medical facilities, the measure was specifically drafted in response to ongoing friction at the Northern Illinois Women’s Clinic, 1400 Broadway, where abortions are performed.
The proposed ordinance would make it illegal for anti-abortion activists to come within 8 feet of patients or employees within a 100-foot radius of the clinic entrance.
In a Feb. 9 press release, Brejcha stated, “This two-month delay is a legal victory, albeit a modest one, as prospects for passage of the bubble zone proposal have been dimmed, if not wholly curtailed.”
Brejcha’s letter to aldermen two days earlier urged rejection of the proposed ordinance “as fundamentally at odds with our nation’s profound commitment to the principle that discussion of pressing issues on which citizens may disagree should nonetheless be robust, uninhibited and wide-open, even if sometimes unpleasantly sharp or even vehement.”
In the letter, which describes the proposed ordinance as “anti-choice,” Brejcha argued streets, sidewalks and public rights of way “have been regarded in our land as a traditional public forum—open for full and robust exercise of fundamental freedoms: free speech, free assembly, and free exercise of religion.”
During a Feb. 1 gathering at City Hall, he explained: “‘Choice’ presupposes an alternative. The pro-life people are there to give these ladies an alternative, to help them if they’re being coerced, to give them the strength to choose life.”
He stated in his letter that the anti-abortion activists present at the clinic “are there not to preclude legally-mandated ‘choice’ but rather to help women exercise their right to make a ‘choice’ in a free and fully informed manner.”
Brejcha, who also represents anti-abortion plaintiffs involved in a federal civil lawsuit in which the city is a defendant, added, “But apart from these pressing policy reasons against enactment of this ordinance, we submit…that it is so fundamentally flawed that we will amend our federal lawsuit immediately upon its enactment to have the federal court strike it down as unconstitutional.
“We have set forth the proposed measure’s fatal flaw in our recent proposal for settlement of our other federal claims against Rockford,” he noted. “Specifically, the proponents of the ‘bubble zone’ ordinance apparently overlooked the provisions of the Illinois Labor Dispute Act…which protects the right of citizens to mount protests on the streets of Rockford and all other Illinois municipalities (including Chicago) in connection with labor disputes. The Labor Dispute Act provides, moreover, that no Illinois city, town or hamlet may even attempt to regulate such labor picketing. Indeed, any municipal measure attempting to regulate labor picketing is deemed void and of no legal force or effect ab initio.”
During the Feb. 8 committee meeting, apparently in response to Brejcha’s letter, Ald. Nancy Johnson (D-8) expressed reservations about the impact such an ordinance might have on labor picketing.
“It’s not just the Broadway address that’s at issue here,” she noted. “As a Democrat, I’m sensitive to the fact that we have our union brothers and sisters who, from time to time, perhaps, have pickets and this type of a thing, where they need to hand out some type of literature. …I don’t want to find that we’ve tied their hands in that way, because they have a legal right to do that.”
Although similar bubble zone legislation in Colorado has been upheld as constitutional by the U.S. Supreme Court, Brejcha explained such an ordinance in Rockford would defy state law.
“The main distinguishing factor here is the Illinois Labor Dispute Act, which completely distinguishes this case from Colorado,” he told The Rock River Times. “The dispute act automatically voids any municipal regulation of labor picketing. Therefore, any regulation of pro-life picketing by a municipality is necessarily viewpoint biased, because the municipality does not regulate the labor pickets who can go right up and handbill, and even put up a tent, and even have cars parked, so long as they don’t impair views and so forth. So, there’s a built-in viewpoint discrimination in this kind of a limitation on picketing by non-labor groups that offends the First Amendment under established precedent.”
Legal Director Patrick Hayes disagreed, however.
“The labor law is a state enactment,” Hayes acknowledged. “I do not believe the existence of that enactment impacts the proposed ordinance. The proposed ordinance applies to all medical facilities, with appropriate limited restrictions.”
Anti-abortion activists, however, feel the ordinance would unfairly and unlawfully single them out.
“Government cannot distinguish here,” Brejcha told this publication. “The fact is the city, as a governmental agency, would be regulating one form of expression, while exempting another.”
Brejcha’s letter continued: “The upshot is that the city’s imposition of such draconian restrictions on pro-life picketing, sidewalk counseling and/or prayer vigils—no matter how peaceable or prayerful—conducted on the public sidewalks near Mr. [Wayne] Webster’s [owner of 1400 Broadway] establishment would be ‘viewpoint discriminatory,’ for Rockford would not be imposing any similar restriction on labor picketing outside health care providers involved in a labor dispute. Exempting labor disputes from picketing restrictions has been struck down—already and repeatedly—by the United States Supreme Court on this very ground.
“We have been prepared to settle our current 1st amendment claims against Rockford on an amicable and low-cost basis up to the present,” the letter added. “But if this ordinance should be enacted into law in the teeth of our constitutional objections, we shall renew our prosecution of the federal lawsuit with full vigor and pursue it to conclusion, seeking full relief for all of our clients and every last dollar of attorney’s fees to which we would be entitled.”
Webster, a co-defendant in the two-year-old federal lawsuit, doesn’t like the tone of the letter.
“To me, it sounds like extortion,” he said. “And if the City of Rockford caves in to ’em, they’re caving in to terrorists.”
Clarifying his “terrorist” allegation, Webster referred to a Sept. 30, 2000, incident during which the Rev. John Earl, a priest from St. Patrick’s Catholic Church in Rochelle, crashed his car into the building at 1400 Broadway and proceeded to destroy property with an ax once inside. Webster detained Earl at gunpoint until police arrived.
Asked to respond to Webster’s use of the word “extortion,” Brejcha chuckled.
“Well, I know a lot about extortion law since we won the racketeering case [National Organization for Women v. Scheidler] up in the U.S. Supreme Court by 8-1 in 2003 and by 8-to-nothing—it would have been nine, but for [Justice Sandra Day] O’Connor’s retirement—in 2006,” he reported. “The thrust was that [Operation] Rescue’s peaceful, non-violent, direct action…was extortion, and therefore, a series of these demonstrations would be racketeering. The U.S. Supreme Court threw that out very decisively and, I might say, on a bipartisan basis.
“There is no extortion at all,” Brejcha asserted. “All we’re advocating are legal positions and enforcement of our clients’ rights. We’re not out for getting a lot of money from anybody.”
Settlement offer on the table as long as bubble zone is not
During a Feb. 1 gathering of anti-abortion activists at Rockford City Hall, Brejcha indicated: “The city has suggested they may be interested in settling this case. We just submitted a proposal to them. That was before this bubble zone ordinance was proposed.”
Brejcha told The Rock River Times, “The essence of it is an agreement to meet and work out grievances, with a recognition by both sides that there’s a right to choose under the law, and a right to offer women the choice for life—and that that has as much constitutional standing as the right of Webster and his abortionist to offer their services to women.”
An early basis of the lawsuit, the alleged defacement of an anti-abortion ad on a bus bench by a Rockford Mass Transit District bus driver, is another issue Brejcha said he wants remedied as part of the settlement. At the city’s urging, Wright Advertising later canceled its contract for the anti-abortion ads.
“We’re not asking for a lot of attorney’s fees, but if we have to go to court on this bubble zone, we will,” Brejcha resolved.
The offer to settle the federal lawsuit is on the condition that the bubble ordinance is not adopted.
In addition, Brejcha said he wants guidelines in place “for the police to protect the right of the pro-life people to offer help to women.”
He said he wants issues resolved in a conference room, rather than through police and legal action.
“We already met with your mayor, who, by the way, I think would be supportive of our position,” Brejcha told supporters.
Webster responded, “You don’t settle criminal matters in a conference room.
“There is no compromise. The law is the law. Anytime you screw with the law, you end up creating chaos,” he added. “Truth is, if you do it right, you enforce the law against the lawbreakers. You don’t say to a guy that owns a piece of property and pays taxes on it, who’s been a citizen in this city for 66 years, ‘You can’t file charges against people who trespass on your property, because you make money off abortion.’
“Wal-Mart sells products that are made in China by slave child labor, and you protect those people,” Webster argued. “If I tried to block the driveway at Wal-Mart, they’d have me cuffed and stuffed in a heartbeat.”
In an effort to balance the rights of those on both sides of the sensitive debate, city officials have been hesitant to make arrests based on complaints by Webster or the anti-abortion protesters.
During the Feb. 8 Codes and Regulations Committee meeting, aldermen uneasy with the proposed ordinance suggested stiffer enforcement of existing laws, and that both sides be brought to the table to try to resolve the ongoing problems without the need for a new law.
Asked whether the mayor’s office would facilitate such a discussion, Hayes responded, “The city has encouraged dialogue to resolve tensions at the clinic in the past, and will continue to do so.”
Asked whether he’d been approached by the city for such a roundtable, Webster asserted, “They’re not gonna set up any roundtable.
“The law is the law,” he said, adding he refuses to “negotiate with terrorists.”
Regardless of whether the city is dropped from the lawsuit, Brejcha indicated he plans to pursue litigation against Webster.
“While we’re willing to settle the lawsuit with the city, we mean to continue it to the fullest against Mr. Webster, who has inflicted serious injury on our clients with his hate crimes, slanders and libels for which we mean to hold him fully to account under the law,” Brejcha stated. “The lawsuit will proceed in federal court, but if the city settles, it will likely be returned to state court.”
Responding to the allegations in the lawsuit against him, Webster said: “This is all gonna come out in court that their entire case against me is a flat-out, patent lie. There’s not one word of truth in any of it.”
Webster reported he plans to meet with his attorneys regarding the latest settlement offer to the city.
“If there is a settlement proposed, we’re going to go into federal court and get an injunction against it being enacted, because I’m a defendant in the same action,” he explained. “And if what they’re gonna do is sell me out, and sell my rights out…then their settlement will be a violation of my civil rights if they say, ‘We will guarantee you that the bubble law will never pass.’”
Asked to respond to Brejcha’s letter, Hayes stated in an e-mail: “I do not view Mr. Brejcha’s discourse as anything beyond a litigant trying to resolve a case on terms acceptable to his clients. We have no comment at this time beyond the above on Mr. Brejcha’s letter.”
From the Feb. 17-23, 2010 issue