Justices overturn abortion clinic case

Blockaders held not liable under racketeering act

February 27, 2003|By Jan C. Greenburg | Jan C. Greenburg,SPECIAL TO THE SUN

WASHINGTON - The Supreme Court declared yesterday that federal extortion and racketeering laws could not be used against abortion protesters blocking clinic entrances, handing a victory to civil liberties groups that said a contrary decision would have stifled all types of political protest.

Ruling 8-1 in a Chicago case, the court said abortion protesters had not committed extortion under federal law when they blocked clinic entrances. The court also rejected claims that the protesters, led by Operation Rescue's Joseph Scheidler, had violated federal anti-racketeering laws originally aimed at combating organized crime.

The decision, written by Chief Justice William H. Rehnquist, brings to a close a 17-year legal battle by the National Organization for Women and two abortion clinics. In a case aimed at countering often violent abortion protests, they had sued Scheidler and other leaders of Operation Rescue and the Pro-Life Action League under the civil provisions of the federal Racketeer Influenced and Corrupt Organizations Act, or RICO.

That powerful law originally was conceived to target members of the mob, but it can be used in civil cases by private parties who contend they have been harmed by criminal conduct. NOW had argued that it should apply to violent abortion protesters, arguing that they engaged in a conspiracy to shut down abortion clinics through a pattern of racketeering activity that included acts of extortion.

A Chicago jury agreed in 1998, awarding the clinics $86,000 for extra security costs, an amount automatically tripled under the RICO law. The court also issued a nationwide injunction regulating the protesters' activities.

The activists appealed, and NOW prevailed before a Chicago-based federal appeals court but found itself with atypical opponents in the Supreme Court. Criminal defense lawyers and civil liberties groups weighed in against NOW, arguing that a ruling in its favor would mean the tough federal laws could apply to other protests, such as those waged by People for Ethical Treatment of Animals.

"Even nonviolent kinds of protest could turn into RICO concerns, sweeping up potentially thousands of people," said William Mertens, a Washington attorney who wrote a friend-of-the-court brief for the National Association of Criminal Defense Lawyers.

Jay Sekulow, chief counsel of the American Center for Law and Justice, which represented Operation Rescue in the case, said yesterday's decision was a "tremendous victory for those who engage in social protests" and that it "removes a cloud that has been hanging over the pro-life movement for 15 years."

NOW President Kim Gandy called the decision "shocking," saying it would pave the way for anti-abortion protesters to resume violent protests.

"A woman's right to seek medical services from a clinic, and the clinic's right to provide those services - long held to be `property' and therefore protected - is now under greater threat," Gandy said.

But in the years since they filed their groundbreaking lawsuit, NOW and abortion clinics have gained another weapon to combat violence. Congress passed the Freedom of Access of Clinics Entrances Act in 1994, providing for tough sanctions against those who conduct unlawful and threatening protests.

Because of that, yesterday's decision will have little practical effect, said John W. Nugent, executive director of Planned Parenthood of Maryland.

The ruling was celebrated by Baltimore peace activists such as Max Obuszewski, media representative of the American Field Service Committee, who said it will protect anti-war protesters. "In these times, I could just see an Ashcroft wanting to go after a peace group," he said.

In a separate concurrence, Justice Ruth Bader Ginsburg said Congress had addressed the problem of clinic violence in the 1994 statute and that the court was "rightly reluctant" to expand the scope of RICO.

Gandy said the 1994 law is not enough because it does not give clinics a way to pursue organizers of violent protests. She said the Chicago case yielded the first nationwide injunction against clinic violence.

"In fact, the violence did stop," Gandy said. "Protesters still demonstrated and shouted outside the clinics, but the physical harm, property damage and trespassing ended."

At issue in the case was whether the actions of the anti-abortion leaders constituted the kind of activity that would justify a complaint under the RICO law. Abortion opponents argued that RICO was not designed to apply to political protest and that they had not engaged in the type of racketeering targeted by RICO.

Civil libertarians have often been critical of RICO, contending that prosecutors and plaintiffs have used it to increase penalties in a way Congress never intended.

In 1994, the justices reversed a lower-court ruling dismissing NOW's claims and said the lawsuit could proceed even if the defendants had no economic motives for their crimes.

The case then went back to a lower court for trial, and a jury in 1998 found that the anti-abortion leaders and their organizations had engaged in racketeering in trying to shut down the clinics. An appeals court upheld that verdict.

Reversing the appeals court, Rehnquist wrote that the protesters had not obtained the clinics' property when they picketed outside. The law defines extortion as obtaining property through the "wrongful use of actual or threatened force, violence, or fear."

"Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property," the court said.

Justice John Paul Stevens was alone in dissent.

Jan C. Greenburg writes for the Chicago Tribune, a Tribune Publishing newspaper. Sun staff writer Liz Bowie contributed to this article.

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