Racketeering Conviction of Anti-Abortion Groups Voided

New York Times/February 27, 2003
By Linda Greenhouse

Washington -- The Supreme Court today overturned a federal racketeering judgment against a coalition of anti-abortion groups that conducted a widespread campaign of disrupting and blockading abortion clinics during the 1980's. The protesters' actions, although in some instances criminal, did not fit the federal definition of extortion that was the basis for the lawsuit against them, the court said. The 8-to-1 decision ended a 17-year-old case that dated to the peak years of violent demonstrations at abortion clinics, when abortion providers sought a legal theory that would allow them to attack what they saw as a nationwide conspiracy to shut down their operations.

In a lawsuit brought by the National Organization for Women and two abortion clinics, they turned to the federal racketeering law and specifically to the Hobbs Act, which outlaws obstructing commerce "by robbery or extortion." Violating the Hobbs Act on at least two occasions can demonstrate a "pattern of racketeering activity" that entitles the victims to triple damages under the federal Racketeer Influenced and Corrupt Organizations Act, known as RICO.

But what happened at the clinics was not extortion, Chief Justice William H. Rehnquist wrote for the majority today. Parsing the federal definition of the crime - "the obtaining of property from another" by force, threat of force, or violence - the chief justice said that the protesters had not "obtained" the clinics' property. To obtain property, he said, meant to acquire it and not simply to deprive the lawful owner of its use.

The protesters' actions might well fit the legal definition of coercion, Chief Justice Rehnquist said, but he noted that Congress had excluded coercion when it passed the Hobbs Act in 1946.

After a jury trial in Federal District Court in Chicago, the plaintiffs won damages of $85,000, which were to be tripled under the RICO law, from a group of defendants that included Operation Rescue, the Pro-Life Action League and its leaders. The district court also issued a nationwide injunction against further disruptive protests. The United States Court of Appeals for the Seventh Circuit, in Chicago, upheld the judgment in 2001.

In overturning the appeals court's ruling today, the Supreme Court did not leave abortion clinics defenseless against disruptive protests. A 1994 federal law, the Freedom of Access to Clinic Entrances Act, or FACE, authorizes criminal prosecution and civil penalties, including injunctions and punitive damages, against those who interfere with access to abortion clinics through force, threats of force, violence, physical obstruction or property damage.

In addition, the Supreme Court had no occasion in this case to reconsider its decisions dating to the mid-1990's that upheld, within limits, efforts to create safety zones around abortion clinics designed to keep protesters from directly interfering with access by doctors and patients.

The lone dissenter today was Justice John Paul Stevens, who said the court had adopted an unduly narrow interpretation of the property right that the Hobbs Act protects. He said the statute protected "the intangible right to exercise exclusive control over the lawful use of business assets," including "the right to serve customers or to solicit new business."

"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,' " Justice Stevens said.

The decision, Scheidler v. National Organization for Women, No. 01-1118, did not appear to reflect any particular attitude on the court toward abortion, but rather a concern over the implications of invoking the federal racketeering law as a weapon against political protests. In a concurring opinion, Justice Ruth Bader Ginsburg said the court was "rightly reluctant, as I see it, to extend RICO's domain further." She noted that in the argument in the case, Solicitor General Theodore B. Olson, who supported the clinics in their interpretation of extortion, acknowledged that the definition might have applied to the sit-ins of the civil rights movement.

The anti-abortion groups drew support for their legal position from People for the Ethical Treatment of Animals, which often uses civil disobedience, and the National Association of Criminal Defense Lawyers. William J. Mertens, a Washington lawyer who wrote the defense lawyers' brief, said today that the appeals court's definition of extortion had been broad enough to bring "a lot of mundane crimes" under the Hobbs Act and "potentially put a lot of people at the wrong end of a federal criminal prosecution."

Leaders of abortion rights groups expressed dismay at the ruling, noting that the federal clinic access law, while helpful, requires application on a case-by-case basis and does not offer the prospect of a single nationwide injunction. "But we're inventive and we'll defend the clinics with our bodies if we have to," said Eleanor Smeal, president of the Feminist Majority Foundation and a leading force behind the lawsuit. She said her organization has trained 50,000 volunteers in 26 states in nonviolent tactics to defend clinics, their patients and staff.

Jay Sekulow, chief counsel of the American Center for Law and Justice, who was Operation Rescue's lawyer in the case, called the decision a "tremendous victory" that "removes a cloud that has been hanging over the pro-life movement for 15 years."

In a separate development today, the court dismissed a case that had been scheduled for argument next week, an appeal by the Justice Department of a Freedom of Information Act ruling that required the Bureau of Alcohol, Tobacco and Firearms to provide the City of Chicago with data tracing the sale and subsequent use of guns in crimes.

This month, Congress added a provision to the budget bill that barred the agency from spending money in responding to requests for gun-tracing data. At the government's request, the court today sent the case, Department of Justice v. City of Chicago, No. 02-322, back to the Seventh Circuit "to consider what effect, if any," the bar had on the information act dispute.