Ruling Aids Pro-Choice Group

PRO-CHOICE groups won an important legal skirmish in their battle against anti-abortion activists this week, but they still have to prove in court that those activists should be punished as ``racketeers.''

The Supreme Court ruled Jan. 24 that protesters who attempt to shut down abortion clinics through violent or other illegal means can be liable under the federal Racketeer-Influenced and Corrupt Organizations Act. Justices unanimously rejected the argument that RICO applies only to conspiracies with a profitmaking motive.

Although RICO was passed in 1970 mainly as a weapon against organized crime, the high court has authorized criminal and civil proceedings against many ``enterprises'' that engage in a ``pattern'' of unlawful acts. Now the justices have further broadened the statute's application to social-protest activities that break certain federal and state laws.

The civil suit will return to the federal trial court in Chicago, where the National Organization for Women (NOW) and a group of abortion clinics will try to prove that organizations, including the Pro-Life Action League and Operation Rescue, engaged in criminal acts to halt abortions.

Since defendants in successful RICO suits can be required to pay triple damages, a verdict for clinics could strike a damaging financial blow against protest groups.

According to Helen Neuborne, NOW Legal Defense and Education Fund executive director, plaintiffs ``have plenty of evidence against the kingpins'' of what pro-choice groups call a ``terrorist'' campaign.

``It shouldn't take long to establish the basic case'' against protesters, says Chicago lawyer Fay Clayton, who argued the case for the pro-choice groups at the high court. ``Eliminating the economic-motive requirement made the case much easier to try.''

Ms. Clayton hopes defendants will enter settlement talks. ``They keep saying the case is about freedom of speech, so we keep telling them: `OK, we'll let you protest peacefully if you'll agree to stop intimidating patients and doctors.' ''

But settlement doesn't seem to be on the minds of anti-abortion groups. They plan to contest the case in the trial, says Jim Henderson, a lawyer at American Center for Law and Justice, which represents Operation Rescue.

He scoffs at NOW's main allegation - that in abortion-clinic blockades and activities like ceremonial funerals and burials of aborted fetuses, anti-abortion groups engaged in ``extortion'' as defined in the federal Hobbs Act.

Such conduct ``is expressive activity'' protected by the First Amendment, he says. ``All the protesters do is tell [patients and doctors] that they're doing a bad thing. This case, pure and simple, is an attempt to stifle traditional American public protest.''

Mr. Henderson says the Jan. 24 decision would have made the racketeering statute applicable against lunch-counter sit-ins during the 1960s.

YET other conservatives support the justices' decision in NOW v. Scheidler as proper statutory interpretation.

Bruce Fein, a legal writer in Washington, says: ``The court is going along with what Justice [Antonin] Scalia has been saying for a long time. Judges should rely on the words of a statute, and they shouldn't smuggle in words based on what they think Congress intended to say. We have a democratic system, and if you want Congress to amend a statute, you do it through the political process, not by having judges write words into statutes.''

The economic-motive test asserted by the defendants and accepted by the trial court and the United States appeals court in Chicago doesn't appear in RICO. Attempts in Congress to narrow the statute's scope have been unsuccessful.