Justices hint anti-mob law may be applied to violent abortion foes

December 09, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A law professor got nothing but trouble from several Supreme Court justices as he argued yesterday that anti-abortion blockaders should be free to shut down clinics without facing heavy damage verdicts under a federal anti-racketeering law.

G. Robert Blakey, a Notre Dame professor, appeared to make little headway as members of the court repeatedly demanded specific proof from him that Congress meant to leave out clinic attacks in 1970 when it adopted a law against mob violence: the Racketeer Influenced and Corrupt Organizations Act, or RICO.

Mr. Blakey's difficulties high lighted a one-hour hearing the court held on a 7-year-old lawsuit by the National Organization for Women seeking to put an end to nationwide attacks on abortion clinics. NOW's position before the court is being supported by the Clinton administration.

Although Mr. Blakey chose to focus most of his plea on what Congress meant to say in 1970 about violent racketeering, he also sought to build the case for protecting those who blockade abortion clinics by likening them to historic protest figures like Mahatma Gandhi, Cesar Chavez, Carrie Nation and Medgar Evers.

He said the RICO statute -- a law designed to get at Mafia figures like John Gotti -- was never intended to be used against "a social protest movement."

Justice John Paul Stevens and others put the professor on the defensive. At one point Mr. Stevens forced Mr. Blakey to concede that no court had ever relied on the social protest theory he was using to justify an exemption for abortion clinic blockaders from the 1970 law.

Justice Antonin Scalia was the sole member of the court to come to the professor's aid with sympathetic comments or questions, but even Mr. Scalia showed an occasional flash of skepticism.

The NOW case against the militant anti-abortion groups, Operation Rescue and the Pro-Life Action League, and their leaders has gained in importance since the Supreme Court earlier this year took away from clinics the protection of a key civil rights law.

Clinics have been looking for protection under the anti-racketeering law, while asking Congress for a new law specifically designed to protect abortion clinics.

Federal appeals courts have issued split rulings on the 1970 law.

A federal appeals court in Chicago ruled last year in the NOW case that the RICO law only applies to patterns of criminal racketeering done for economic reasons -- and not to any acts done for political or moral reasons, such as opposition to abortion.

NOW has taken its case on to the Supreme Court amid considerable speculation that it would have real difficulty winning there, with conservatives strongly in control.

The atmosphere at yesterday's hearing, however, did not support that speculation.

Fay Clayton, NOW's attorney, reminded the justices repeatedly of the "forcible, violent conduct" aimed for years at clinics by abortion foes. "They will use any means, including terrorism," to try to stop women from having abortions, she argued.

Her appearance prompted Justice Scalia to launch a lengthy series of sharp questions, interspersed with warnings that applying the 1970 law to anti-abortion protesters would endanger many forms of political protest -- such as the United Farm Workers' lengthy boycott of California grapes.

Ms. Clayton, however, said that those kinds of protests are protected by the free speech guarantees of the Constitution and could never be outlawed as criminal.

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