Supreme Court strikes down use of RICO statute against anti-abortion protestors

The decision is unlikely to revive the types of abortion clinic violence and disruptions that occurred in the 1980s and 1990s.

By Tanya Albert, amednews staff. March 24/31, 2003.

At first glance, a recent U.S. Supreme Court decision that says abortion protesters can't be held accountable under federal anti-racketeering and anti-extortion laws may look bad for physicians and their patients, but a closer look shows there's no reason to worry.

Nearly two decades after a legal fight started over bombings, blockades and other disruptive tactics used by anti-abortion protesters in the 1980s and 1990s, the high court in February ruled 8-1 that protesters cannot be held accountable under the federal Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO, or under the Hobbs Act, a federal anti-extortion statute.

Case at a glance
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The National Organization for Women and other groups had argued that Joseph Scheidler and his Pro-Life Action League, and other anti-abortion groups, crossed the line protecting free speech and should be subject to the federal laws usually aimed at organized crime activities. (The AMA and other medical groups filed a friend-of-the-court brief saying physicians and others in clinics should have legal protection from disruptions and injuries from protests that turn into criminal conduct.)

NOW and others argued that the Pro-Life Action League and Operation Rescue used the same tactics in communities nationwide to block clinic entrances, destroy equipment, and harass physicians, patients and staff in an effort to stop a legal medical procedure. That, the women's organizations argued, amounted to extortion.

A jury agreed and, in 1998, the court issued a nationwide injunction that protected reproductive health clinics from disruptive and sometimes violent tactics. The 7th U.S. Circuit Court of Appeals upheld the decision.

The February ruling, however, overturned it. Still, the high court decision in Scheidler v. National Organization for Women isn't expected to revive the violent protest seen against abortion clinics in the past. Since NOW first filed its lawsuit in 1986, federal laws have changed.

"This isn't going to make any difference, except for a procedural one," said Fay Clayton, a Chicago attorney representing NOW.

That's because instead of being governed by the 1998 injunction, protesters will be governed by a law that Congress passed in 1994, the Freedom of Access to Clinic Entrances Act. This measure prohibits people from interfering with, intimidating or threatening patients or medical service professionals, and it gives patients and clinic employees the right to sue people who do. The law carries stiff penalties, including prison time and fines that could be higher than penalties under RICO.

"We don't expect to see a resurgence in sit-ins because FACE makes it a federal crime," said Walter Weber, senior litigation counsel for the Washington, D.C.-based American Center for Law and Justice, a nonprofit, public interest law firm that argued the case for anti-abortion protesters. "The first offense is a misdemeanor. The second offense is a felony."

Nonetheless, protesters were relieved to see that the court won't prosecute them under RICO statutes.

Although the FACE Act still governs what is acceptable outside abortion clinics and places of worship, protesters from all causes feared the Scheidler case could have an impact on their demonstrations. People for the Ethical Treatment of Animals, the Southern Leadership Conference, actor Martin Sheen and various political groups filed friend-of-the-court briefs in Scheidler, arguing that charging protesters under RICO statutes would hamper political speech.

"The level of risk at stake was so high, that people stayed at home," Weber said. "People were worried about being charged under RICO laws. There is a stigma attached to being labeled a racketeer."

The court's rationale

The court acknowledged that many of the acts carried out by the anti-abortion protesters weren't legal.

"There is no dispute in these cases that petitioners interfered with, disrupted and, in some instances, completely deprived respondents of their ability to exercise their property rights," Justice William H. Rehnquist wrote for the majority of the court. "Likewise, petitioners' counsel readily acknowledged at oral arguments that aspects of his clients' conduct were criminal."

But the U.S. Supreme Court said it could not uphold the verdict that found the defendants guilty of violating the Hobbs Act because respondents never "obtained" property.

"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' respondents' property," the court said.

In other words, the protesters never took possession of property they could transfer or sell, the court said. Consequently, they didn't violate the Hobbs Act and, therefore, there were no grounds for the RICO violation.

The court's 8-1 decision shows that the court was "concerned that RICO was being used in an inappropriate way," Weber said. "This restores some sense to the law."

Justice John Paul Stevens dissented, saying the majority's opinion was "murky," and no other federal court has defined property so narrowly.

"For decades, federal judges have uniformly given the term 'property' an expansive construction that encompasses the intangible right to exercise control over the lawful use of business assets," Stevens wrote. "The use of violence or threats of violence to persuade the owner of a business to surrender control of such an intangible right is an appropriation of control embraced by the term 'obtaining.' "

With that definition of property, Stevens said, the evidence shows the protesters did violate federal laws.

ADDITIONAL INFORMATION:

Case at a glance

Scheidler et al. v. National Organization for Women Inc. et al.
Venue: U.S. Supreme Court
At issue: Whether a jury was right in its decision finding abortion protesters guilty under the Racketeer Influenced and Corrupt Organizations Act. The court said no.
Potential impact: Not a big one for physicians and patients because a 1994 federal law passed after this case began shields them from anti-abortion protests. Protesters for many causes say the decision takes away a fear that they could be harshly charged under anti-racketeering laws even if they were involved in legal protests.