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Abortion-protest issue before Court boils down to protected assembly vs. illegal acts

By The Associated Press

12.05.02

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WASHINGTON — Supreme Court justices took on the contentious issues of abortion, freedom of assembly and violent protest yesterday, hearing arguments on whether federal laws intended to combat organized crime and corruption can be used to punish anti-abortion demonstrators.

Activists such as actor Martin Sheen, animal-rights groups and even some organizations that support abortion rights are siding with anti-abortion forces because of concerns they too could face harsher penalties for demonstrating.

The Court must decide if abortion-clinic protesters who use such tactics as blockades can be given large penalties under federal racketeering and extortion laws for interfering with businesses.

Such laws are intended to combat corruption, not punish demonstrators, the Court was told by Roy Englert Jr., the lawyer for Operation Rescue and anti-abortion leaders. If the high court doesn't intervene, he said, there could be severe punishment for leaders of any movements "whose followers get out of hand."

An attorney representing abortion clinics in Delaware and Wisconsin and the National Organization for Women said the laws protect businesses from violent protests that drive away clients.

The Supreme Court has dealt with few abortion cases in the decade since it reaffirmed the core holding of its landmark Roe v. Wade ruling that women have a constitutional right to abortion. The last case was two years ago, when justices struck down state "partial-birth" abortion laws because they imposed an undue burden on women seeking to end their pregnancies.

"As hard as people try to say this case isn't about abortion, it is about abortion," said Joseph Scheidler, one of the protesters challenging the punishments, after the case was argued yesterday. He said abortion foes were afraid to protest at clinics because they fear being found guilty of racketeering, instead of something less serious like trespassing.

Scheidler and the others were sued in 1986 by the clinics and accused of blocking clinic entrances, menacing doctors, patients and clinic staff, and destroying equipment during a 15-year campaign to limit abortions. They were ordered to pay about $258,000 in damages and barred from interfering nationwide with the clinics' business for 10 years.

The punishments were under the 32-year-old Racketeer Influenced and Corrupt Organizations Act, known as RICO, and the Hobbs Act, a 1946 law aimed at crushing organized crime. The Hobbs Act makes it a crime to take property from another with force.

The issue dates to the 1980s when large groups of anti-abortion demonstrators used aggressive tactics to disrupt clinics. The demonstrators contend they did not use violence. In 1998, a jury in Illinois found demonstrators guilty of dozens of violations, including four acts involving physical violence or threats of violence.

In its ruling, the high court must differentiate between protected political activity and that which is illegal.

Emotion from abortion rights supporters and foes spilled into court filings. Outside the court, both sides picketed yesterday.

The Bush administration upset some conservatives by supporting both the clinics and protesters in different parts of the case. Solicitor General Theodore Olson told the Court that demonstrators could be sued for blocking business at clinics. He also tried to ease fears that the case would affect other types of protests.

"The First Amendment is not an issue in this case," Olson said.

Responded Justice Anthony M. Kennedy: "There's always a First Amendment implication in a protest case."

Justices questioned whether black civil rights leaders could have been punished for boycotting white businesses.

"Martin Luther King didn't tell the people to go into Woolworth and bash people," Fay Clayton of Chicago, the lawyer for NOW and the clinics, told the Court.

Clayton said her clients could also be punished if they tore up the course at Augusta National Golf Club to protest the Georgia institution's refusal to let women join.

Justice Antonin Scalia, who has opposed abortion rights, said the punishment seemed unusual for the anti-abortion protests. "It wasn't smacking people around. It was just not letting people in (to the clinics)," Scalia said.

Justice Sandra Day O'Connor, an abortion-rights supporter, seemed to disagree. "We're not talking about conduct that's lawful here," O'Connor said. "To paint the picture we're talking about just pure speech is not the case."

The cases being considered in a combined appeal are Scheidler v. National Organization for Women, 01-1118, and Operation Rescue v. National Organization for Women, 01-1119.

Update

Supreme Court rules for abortion protesters in racketeering case
Justices rule 8-1 that federal racketeering, extortion laws were improperly used to punish aggressive demonstrators.  02.26.03

Previous

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

Related

2002-2003 Supreme Court term coverage
Analysis and other coverage of 2002-2003 U.S. Supreme Court term.  10.07.02

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