Judges to Review Abortion Ruling

A federal appeals court agreed Wednesday to review a controversial decision that protected as free speech an Internet site and posters identifying abortion providers as “baby butchers” who should be punished.

The March decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals, which eliminated a $107-million Portland, Ore., jury verdict that found the posters and Web site were a threat to the doctors and the clinics where they worked, had been immediately denounced by a wide range of groups.

Among them was the Feminist Majority Foundation, whose president, Eleanor Smeal, criticized the decision as court protection of domestic terrorism.

In addition, in a highly unusual move, 43 members of Congress--including both of California’s senators--filed a brief asking the 9th Circuit to rehear the case, warning that the decision could spawn further violence at abortion clinics.

On Wednesday, the 9th Circuit issued a brief order saying that a majority of 22 judges on the court who had considered the issue voted to grant an “en banc” hearing--meaning that a panel of 11 judges will rehear the case.

The court’s action means that the March ruling in the Planned Parenthood vs. American Coalition of Life Activists damage verdict, which was a major victory for militant abortion foes, is now void and cannot be cited as precedent by the 9th Circuit or any federal district court in the circuit, which spans nine Western states including California.

The original 9th Circuit decision also voided an injunction issued by a federal trial judge in Portland who said the posters and the Web site were “a blatant and illegal communication of true threats to kill, assault or do bodily harm.” Because the 3-0 ruling was immediately appealed, the injunction remained in effect.

The court’s decision Wednesday was hailed by New York lawyer Maria T. Vullo, the lead attorney for the plaintiffs--four doctors, Planned Parenthood and a feminist clinic in Oregon.

“We are very grateful that the case” will be reheard by a larger panel of judges, Vullo said. The decision by the three-judge panel “conflicts with the law about threats” that have been rendered by other courts, she said.

The ruling by the three-judge panel effectively limited the reach of a 1994 federal law designed to protect access to abortion clinics. It was hailed by antiabortion activists, who said it protected their right to speak out vigorously.

That law bars the use of force or threats of force to prevent access to reproductive health services. The statute was passed after more than 4,000 incidents of violence at abortion clinics in 1993, as well as the slayings that year of two doctors who performed abortions.

A brief submitted to the court by the members of Congress said the ruling granted protected speech status to a “Deadly Dozen” poster, which accused abortion doctors of “crimes against humanity,” and to the Web site titled “The Nuremberg Files,” undermining the legislative intent of the 1994 act. The legislators said the statute had “played a major role in dramatically reducing the number of crimes against women and doctors.”

The defendants in the case are 13 individuals and two antiabortion groups--the American Coalition of Life Activists and Advocates for Life Ministries. Six of the defendants unsuccessfully filed for bankruptcy in an effort to avoid paying damages. But most of the damage award remains uncollected, Vullo said.

Christopher A. Ferrara, president of the New Jersey-based American Catholic Lawyers Assn. and the lead attorney for the defendants, declined to comment on Wednesday’s court order.

Cathy Catterson, the 9th Circuit’s chief clerk, said she expected the case to be heard in December in Pasadena.