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Abortion foes hail high court ruling on clinic demonstrations

Analysis

By Tony Mauro
Special to freedomforum.org

02.27.03

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WASHINGTON — The Supreme Court yesterday made it harder to hit aggressive anti-abortion clinic demonstrators in the pocketbook, in a ruling hailed as a victory for freedom of speech.

Ruling in the case Scheidler v. National Organization for Women, the Court sharply curtailed the use of the 1946 Hobbs Act and the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO) as legal tools against abortion-clinic protesters.

By an 8-1 vote the justices agreed that whatever tactics anti-abortion leader Joseph Scheidler, Operation Rescue and the Pro-Life Action League used against clinics, they did not fit the definition of extortion in the Hobbs Act, which requires "the obtaining of property" of someone else under threat of force.

"Even when their acts of interference and disruption achieved their ultimate goal of shutting down a clinic that performed abortions, such acts did not constitute extortion, because petitioners did not 'obtain' respondent's property," wrote Chief Justice William Rehnquist.

Because the Hobbs Act was no longer available to define acts such as extortion that could qualify as crimes under RICO, Rehnquist said other state violations were not enough to justify a RICO case, which he said was "fatally flawed."

The ruling represented a major victory for abortion-protest groups that have been the target of an array of legal actions aimed at making their strident, sometimes violent actions at clinics too costly to pursue. RICO, with its threat of threefold damages, was viewed by abortion-rights groups as a particularly strong weapon.

Strictly speaking, the decision did not involve the First Amendment. But the case was closely watched by other activists who saw a potential chilling effect if the use of the Hobbs Act and RICO were ratified by the Court. Actor Martin Sheen, the animal-rights group PETA and others had filed briefs in the case on the side of Scheidler.

"This decision is a tremendous victory for those who engage in social protests," said Jay Sekulow, chief counsel of the American Center for Law and Justice and the lawyer for Operation Rescue in the case. "The decision removes a cloud that has been hanging over the pro-life movement for 15 years. The ruling clearly shuts the door on using RICO against the pro-life movement."

Ken Connor, president of the conservative Family Research Council, said, "Watch for pro-abortion groups to protest this decision. The irony is that they will be exercising the very rights they seek to deny to others."

The ruling was a defeat for women's groups and the Bush administration, which had argued that the control of clinic businesses that protesters can achieve did fit under the Hobbs Act definition. Unlike the National Organization for Women, however, Solicitor General Theodore Olson argued that only the government, not private parties, could sue and obtain injunctive relief under RICO. The Court said yesterday it did not need to rule on that question.

Justice Ruth Bader Ginsburg wrote a separate concurrence suggesting that other legal avenues — including the federal Freedom of Access to Clinic Entrances Act of 1994 — were available to those seeking to punish disruptive clinic protesters.

In dissent, Justice John Paul Stevens said "no other federal court has ever construed this statute so narrowly." He criticized the majority's "dramatic retreat" from earlier positions, arguing that the narrow interpretation would benefit only "professional criminals."

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

Related

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

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

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