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Supreme Court to bypass First Amendment concerns in abortion-protest case

Analysis

By Tony Mauro
Special to freedomforum.org

04.23.02

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At first glance, the case the Supreme Court agreed yesterday to review seems like a replay of a series of First Amendment disputes it has ruled on before: the free-speech rights of abortion-clinic protesters vs. the rights of clinic patients and staff to come and go in peace.

But in granting the case of Scheidler v. National Organization for Women, the court took it out of the line of First Amendment cases and turned into a more technical review of whether federal laws on racketeering and extortion can be used as tools to cripple or deter abortion protest groups.

The Court, without explanation, announced it would review questions involving the Racketeering-Influenced and Corrupt Organizations Act and the Hobbs Act, the federal anti-extortion law. But it specifically did not grant review to a question that would have gotten the court to look at whether using the RICO law against abortion protesters would violate their First Amendment rights.

“I think they feel they’ve been over that ground three times, and there was nothing more to say about it,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, longtime lawyer for abortion protest groups. Hill v. Colorado, Schenck v. Pro-Choice Network of Western New York and Madsen v. Women’s Health Center all dealt with the free-speech issues raised by restrictions on abortion-clinic protests.

But Sekulow said the issues the court did grant review on will still have substantial impact on the ability of anti-abortion groups to get their message out, even though the First Amendment is not specifically at issue in the case.

In the wake of aggressive abortion protests that used blockades and one-on-one communications with patients and staff to discourage use of the clinics, abortion rights groups sought new legal tactics to fight back. One was the RICO law, which allowed them to gain money damages against the organizations that they said conspired to run the clinics out of business — thereby fitting the definition of racketeering enterprises, as if they were organized crime organizations.

The Supreme Court upheld that use of the law in 1994, and NOW and other women’s groups won substantial damages against the protest groups. They also succeeded in getting a judge to issue an injunction against clinic blockades nationwide. Now the Supreme Court will decide whether the RICO law allows private plaintiffs to obtain injunctions.

A second issue involves the Hobbs Act, which has also been used against clinic protesters. The law defines extortion as taking property through threats or actual violence, and the court will decide whether blockading an abortion clinic amounts to the taking of property.

Sekulow has long argued against the use of these laws, which normally target organized crime operations, in the abortion protest context. Joining the anti-abortion groups in seeking Supreme Court review were other protest organizations including People for the Ethical Treatment of Animals, which has also been sued under RICO.

The abortion protest case will be argued in the fall.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

Previous

High court to hear appeal from anti-abortion protesters
Justices will review whether lower courts went too far in applying the federal Racketeer Influenced Corrupt Organizations Act to anti-abortion activities.  04.22.02

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

Supreme Court reviews punishing of abortion foes
Justices consider whether federal racketeering law can be used to punish anti-abortion protesters.  12.04.02

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