WASHINGTON — MAY advocates of abortion rights use federal racketeering law to go after anti-abortion groups that engage in illegal activity?
The Supreme Court on Wednesday will hear arguments in a case, National Organization for Women v. Scheidler, which alleges that anti-choice groups form ``a nationwide criminal conspiracy of extremists'' who use ``unlawful and violent methods'' to force clinics to close.
Two lower courts have dismissed the case, saying the 1970 Racketeer Influenced and Corrupt Organizations Act requires that those charged in a civil suit be shown to have an economic motive. Because the main aim of pro-lifers is to protect the unborn, RICO does not apply to them, pro-life groups say.
But abortion-rights advocates argue that RICO does not require proof of economic motive, and even if it did, they can show how anti-abortion leaders have profited financially. Also, there is precedent for use of RICO in this way. The United States Court of Appeals for the Third Circuit has levied fines under RICO when clinics have suffered property damage or business loss.
NOW v. Scheidler is important in many ways. It is the first abortion-related case of the high court session, which includes new justice Ruth Bader Ginsburg, an abortion-rights supporter who replaced Justice Byron White, who opposed abortion.
But the case does not call for a consideration of abortion. It tests how RICO - a law intended to go after organized crime but written broadly - may be applied. ``If RICO is read too broadly, then it could be used to limit social protest movements,'' says Catherine Albisa, a lawyer at the Center for Reproductive Law & Policy.
Indeed, defendant Joe Scheidler, a Chicago pro-life activist, has attracted unusual support from groups not normally associated with the issue. People for the Ethical Treatment of Animals and the Gay and Lesbian Task Force, for example, have filed amicus briefs.
``Imagine what would have happened if RICO had been applied to social protest movements of the past,'' writes Jay Alan Sekulow, chief counsel of Pat Robertson's American Center for Law and Justice.
Conviction under a civil RICO suit calls for payment of triple damages, enough to put an organization out of business.
``Peace-loving people have nothing in the world to fear,'' counters Fay Clayton, the lawyer who will argue NOW's case. ``This case is about bombings, arson, stalking the children of clinic workers.''
The abortion-rights movement lost another clinic-access case before the high court in January. Bray v. Alexandria Women's Health Clinic sought to use an 1871 civil rights statute (originally designed to get at the Ku Klux Klan) to prevent Operation Rescue from blockading clinics. In its main finding, the court ruled 6-3 against the abortion-rights side, arguing in part that opposition to abortion does not constitute ``animus'' against women as a class.
NOW v. Scheidler is not a substitute for Bray but aims to strike at another segment of pro-life groups that block clinics. ``RICO enables us to go after not the foot soldiers but the ringleaders who are planning the criminal activities,'' NOW president Patricia Ireland says.
If NOW wins, the case will be sent back to a lower court for trial. At that time, NOW will consider adding charges of clinic violence that have occurred since the suit was first filed, including the March murder of Dr. David Gunn and another shooting in August.
Both houses of Congress, meanwhile, have approved legislation designed to heighten protection for abortion clinics. On Nov. 16, the Senate approved the Freedom of Access to Clinic Entrances Act 69-30; two days later, the House approved an almost identical bill by voice vote.
Under the bills, blocking an abortion-clinic entrance or using force or threats against clinic workers or women seeking abortions would become federal crimes. The Justice Department would be allowed to send federal marshals to assist police during massive clinic blockades. Some legislators are concerned that the bill would limit freedom of speech, though the American Civil Liberties Union has said the bill provides adequate safeguards for speech.