RICO, Abortion and Free Speech

January 25, 1994

A unanimous Supreme Court has cleared the way for the pro-choice movement and abortion clinics to fight back against the most aggressive of organized protesters by invoking a section of the 1970 anti-organized crime law -- so-called RICO, for "racketeer influenced corrupt organizations." This is a tough law and could be as effective against extremist anti-abortion groups as it has been against the Mafia and other entities that commit ordinary criminal code violations while conspiring to achieve their goals.

The court did not say the pro-choice movement would necessarily prevail by using this law, but it did overturn lower court rulings to the effect that the organized crime law can never apply to anti-abortion protesters. Judges had been saying that since anti-abortion movements don't seem to have an economic incentive to conspire to shut down clinics and intimidate women, their conspiracies are not RICO-related, even when they involve the theft and destruction of private property and threats to and physical injury of individuals.

The test for both sides and trial judges now will be to make sure that the constitutional right of women to seek abortions not be abridged by mobs and that the constitutional right of anti-abortionists to protest peacefully not be denied. Many organizations not supportive of the Operation Rescues of the nation asked the court not to allow RICO to become an anti-free speech instrument. Chief Justice William Rehnquist said for the court that this was not an issue in this case.

We agree, but nonetheless, we are glad that Justice David Souter, for himself and Justice Anthony Kennedy, reminded judges, lawyers and prosecutors in a concurring opinion that it is "prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake."

The best legal tool to use against abortion protesters who step over the line of criminality would be a federal law aimed specifically at those who use force and the threat of force to halt abortions. Too often local law enforcement agencies have been overwhelmed by the size and recklessness of the organized groups that descend on them from all over the country. The House and Senate passed similar versions last year. These should be quickly reconciled and enacted.

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