Mar. 7, 2006 – Last Tuesday, the Supreme Court ruled that anti-abortion violence cannot be prosecuted under federal racketeering statutes. In a ruling that stirred controversy even among progressives, the justices sealed a two-decade legal battle, striking down an effort by the nationâ€™s largest feminist group to secure harsh legal recourse against harassment and violence at womenâ€™s health clinics.
Meanwhile, some activist organizations â€“ including some typically allied with pro-choice groups â€“ applauded the ruling as an affirmation of free speech and political expression.
The ruling addressed claims brought by National Organization for Women (NOW) and two womenâ€™s healthcare organizations against Joseph Scheidler, leader of the anti-abortion group Pro-Life Action Network (PLAN), and against Operation Rescue, an organization that has staged high-profile blockades of abortion clinics. The court found that the tactics of the anti-choice activists did not fall under the jurisdiction of laws aimed specifically at robbery and extortion perpetrated by criminal enterprises for financial gain.
In its legal filings, NOW cited more than 120 acts of intimidation and violence perpetrated by clinic-protestors against women seeking reproductive-health services. The incidents included anti-choice activists forcibly restraining women from entering facilities, physical assaults against patients and healthcare providers, and the destruction of medical equipment.
NOW cited more than 120 acts of intimidation and violence perpetrated by protestors against women seeking reproductive-health services.
Initially spurred by a spate of attacks on clinics in the 1980s, NOW has long sought legal protection for medical personnel and patients under the 1970 Racketeer Influenced and Corrupt Organizations (RICO) Act and the 1946 Hobbs Act. Primarily intended to combat organized crime, RICO established criminal sanctions against groups engaged in racketeering, and the Hobbs Act criminalized robbery, extortion and related threats that impact interstate commerce.
According to the February 28 decision, the anti-abortion protestors did not have an economic motive, which is at the crux of the racketeering statutes. Rejecting NOWâ€™s contention, the court wrote in its opinion that "physical violence unrelated to robbery or extortion falls outside the Hobbs Act's scope."
NOW denounced the courtâ€™s ruling as an affront to reproductive choice. "If women are too terrified to walk into clinics and healthcare providers are too terrified to keep their doors open," the organization said in a statement on Tuesday, "then we will have lost the fight for reproductive freedom even with Roe v. Wade still on the books."
Operation Rescue President Troy Newman issued a statement commending the court for defended the liberties of anti-abortion activists who, Newman said, "can now exercise their First Amendment rights to speak out about abortion without fear of a RICO suit."
Some progressive groups have sided with the anti-choice activistsâ€™ stance on the issue, contending that NOWâ€™s reading of the law is dangerously broad and has turned RICO and the Hobbs Act into tools for silencing political speech.
In recent years, racketeering laws have enabled corporations targeted by the environmental movement to pursue legal action against activists who organize to subvert their operations.
Consistent Life, a self-described "pro-peace, pro-life" coalition of mostly religious groups involved with anti-abortion as well as anti-death penalty and anti-violence activity, led more than two-dozen activist groups in filing a friend-of-the-court brief opposing NOWâ€™s suit. The parties included secular groups, some of which do not take a public position on abortion issues. In the brief, the animal-rights organization People for the Ethical Treatment of Animals and the anti-war group Plowshares joined lesser-known organizations such as Vieques Support Committee, which has engaged in civil disobedience against United States military action on the Puerto Rican island.
The AFL-CIO and other unions have also opposed NOWâ€™s arguments, warning that if broadly interpreted, the laws could be used to suppress labor organizing.
In recent years, RICO has served corporations targeted by the radical environmental movement, enabling them to pursue legal action against activists who organize to subvert their operations. Mirroring the argument of the anti-choice groups, animal-rights activists have denounced what they see as a politically motivated overstretching of the law.
Responding to a previous Supreme Court review of the NOW case in 2002, Abraham J. Bonowitz, director of Citizens United for Alternatives to the Death Penalty issued a strong statement against NOW's position. Describing himself as "firmly and unapologetically pro-choice", he argued nonetheless that "the precedent of using RICO against protesters is far too dangerous to go unchallenged."
NOW sees a clear line between non-violent political expression and politically motivated terror.
Carol Crossed, a board member of Consistent Life, commented that under the legal framework envisioned by NOW, activists on both the Left and the Right would be "vulnerable to whatever the politics is of the particular ruling group at the time, whether they agree with us or disagree with us. In other words, there [would be] no objective protection for free speech."
Suggesting the possibility of a slippery slope, she added that had the court agreed with NOWâ€™s interpretation of the laws, "the opponents of the rights of minorities, animal rights, environmentalism, anti-war activists [could] use this against organizations like NOW." Crossed also said that since RICO was originally intended to help law enforcement target entire criminal organizations, a case involving a political protest could encompass an organizationâ€™s general membership, including those not directly connected to the action in question.
But NOW sees a clear line between non-violent political expression and politically motivated terror. The groupâ€™s president, Kim Gandy, told The NewStandard: "The case is about a nationwide enterprise that coordinated the use of violence and threats of violence to force the closing of lawful businesses, in this case reproductive health clinics that perform abortions. There is no part of that scenario that is protected by â€˜free speechâ€™ â€“however loosely one might define that term."
But NOWâ€™s critics on this case contend that while some protest actions may be illegal, interpreting them as extortion or racketeering distorts the law and could lead to unwarranted civil or criminal penalties against political dissent.
The courtâ€™s latest ruling contrasts with a 1994 decision holding that a racketeering claim need not provide proof of economic motives. That opinion set the stage for a 1998 trial in Chicago, in which a jury found that the systematic aggression orchestrated by Scheidler and PLAN constituted "racketeering." The case led both to monetary damages and to a nationwide injunction against anti-choice violence and harassment.
But in 2003, the Supreme Court reversed course and struck down the lower-court ruling, and Tuesdayâ€™s decision addressed remaining legal questions on the scope of the Hobbs Act and private civil action under RICO with respect to anti-choice activism.
Newly appointed Justice Samuel Alito did not participate in the decision on the case, which the court heard last term.
Other forms of legal recourse are still available to victims of abortion-clinic violence. The 1994 Freedom of Access to Clinic Entrances (FACE) Act, which NOW helped craft, bars the use of intimidation or physical force to block entrance to reproductive healthcare facilities.
But Gandy noted that the FACE Act targets the perpetrators of the violence, not the organizations or leaders behind it. Referring to the arson and bombing incidents that have illustrated the extremes of the anti-choice movement in the past, she said that RICO "lets you get to the â€˜kingpinâ€™ of an operation... who never themselves lit a match or pulled a trigger, but directed the actions of others."