Abortion protesters grab a victory in court

The Supreme Court says a racketeering law can't be used to punish protesters. It may spur more rallies.

Anti-abortion protests are not a form of racketeering, even though in many cases they make it difficult or even impossible for women to gain access to abortion clinics.

In an 8-to-1 ruling announced Wednesday, the US Supreme Court overturned a civil jury's verdict that anti-abortion leader Joseph Scheidler and the Pro-Life Action Network had violated the civil racketeering law (RICO) through their aggressive protests and other tactics employed outside abortion clinics in the 1980s and '90s.

The ruling also lifted a nationwide injunction that had barred the group from engaging in similar tactics elsewhere.

Analysts say the decision could spark an upsurge in anti-abortion protests, but it will not lead to a repeat of the kinds of aggressive tactics employed prior to the RICO suit. That's because Congress in 1994 passed the Freedom of Access to Clinic Entrance Act (FACE), which specifically outlaws many of the tactics used by abortion protesters in the 1980s.

"There will be no practical impact in terms of on-the-sidewalk consequences," says David Garrow, a legal historian at Emory Law School.

But Kate Michelman, head of NARAL Pro-Choice America, isn't so sure. "This is a huge blow to women trying to exercise their constitutional right to choose," she says. "I'm also deeply concerned that the court's decision will encourage the anti-choice movement to continue the assault on these clinics to shut them down."

Mr. Scheidler said the ruling is a major victory that will spark anti-abortion protesters to once again take up their cause. "More people will feel freed up to come out without RICO hanging over them and without a federal injunction hanging over them," he says.

In broader terms, the case is significant because it is an effort by eight of the nine justices to limit the use of the civil racketeering statute. RICO was written broadly to provide leeway for prosecutors seeking to battle various forms of organized crime. In recent years, its civil version has been used by creative lawyers to apply far beyond Mafia dons and drug kingpins.

In effect, the justices Wednesday drew a line, saying RICO, as written by Congress, was never intended to apply to anti-abortion or other types of protests.

More specifically, the justices ruled that even though the protesters' conduct was disruptive and prevented women and abortion-clinic staff members from exercising their right to provide and receive health services, the protests did not amount to a form of racketeering through extortion because the protesters never actually obtained any property.

"There is no dispute that [the protesters] interfered with, disrupted, and in some instances completely deprived [women and clinic workers] of their property rights," writes Chief Justice William Rehnquist for the majority. "[The protesters'] counsel readily acknowledged at oral argument that aspects of his clients' conduct were criminal."

He continues, "But 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."

The majority ruled that the protesters' conduct might violate laws against coercion, but coercion is not a crime encompassed within the federal racketeering law.

To violate laws against extortion, an individual must use threats or force to "obtain" the property of another. "To conclude that [anti-abortion protests] constituted extortion would effectively discard the statutory requirement that property must be obtained from another, replacing it instead with the notion that merely interfering with or depriving someone of property is sufficient to constitute extortion," Chief Justice Rehnquist writes.

In a lone dissent, Justice John Paul Stevens said that the aggressive tactics of anti-abortion protesters amounted to a form of extortion even though no tangible property ever changed hands.

"For decades, federal judges have uniformly given the term 'property' an expansive construction that encompasses the intangible right to exercise exclusive control over the lawful use of business assets," he writes. "The right to serve customers or to solicit new business is thus a protected property right."

The high court's decision stems from a civil lawsuit brought 16 years ago by the National Organization of Women charging that Scheidler and the Pro-Life Action Network used threats of force, violence, and fear to discourage women from visiting abortion clinics. That activity amounted to a form of extortion, NOW charged, by forcing women to give up their right to obtain the services of the clinic to avoid ugly confrontations with protesters on the clinic steps. At the same time, clinics were being bombed or vandalized, and some abortion doctors were targeted for assassination.

Abortion-rights advocates say it amounted to a "reign of terror."

Scheidler and other pro-life activists denied any link to bombers and assassins. They insisted that while their tactics might be aggressive, their actions did not amount to extortion or racketeering.

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