Supreme Court Hears RICO 
Lawsuit Against Pro-Life Group

December 6, 2002—Washington, DC:  The U.S. Supreme Court heard arguments Wednesday in a case that bars pro-life activists from protesting outside abortion facilities, and although free speech was not a question for the court to consider, several justices expressed concern about the impact the case could have on all forms of political demonstration.

When the court accepted the case in April, it declined to address the First Amendment question and focus instead on whether the protests constituted extortion as well as whether the federal racketeering law allowed a judge to impose a nationwide injunction against the groups. A jury found the pro-life groups guilty of extortion in 1998.

The court is again considering the case to determine if the actions of Joseph Scheidler's Pro-Life Action League and Randall Terry's Operation Rescue amount to extortion, a charge typically used in cases of organized crime. A second issue involves the nationwide injunction imposed by a trial court judge, which prevents the groups from protesting outside abortion businesses.

Throughout the case, Scheidler has maintained that pro-life activists have done nothing to warrant the extortion charge because they carried out peaceful, non-violent protests much like Martin Luther King Jr. and other civil-rights demonstrators did in the 1960s. NOW contends that violence was involved in 121 instances, although that number has been disputed. Pro-life organizations oppose the use of violence as a means to end the violence of abortion.

Justices Antonin Scalia and Stephen Breyer were two of several justices who raised the question of free speech. They said if pro-life activists could be targeted under a federal racketeering law for disrupting the business of an abortion facility, civil-rights demonstrations could have faced similar charges for protesting whites-only businesses.

The justices raised free speech concerns when NOW's attorney, Fay Clayton, made her arguments.

Justice Breyer wondered if a union worker striking outside a company or blacks protesting at a soda fountain would fall into the category of extortion. He said business owners would certainly view these protests in the same light NOW viewed the pro-life demonstrations.

"I'm rather concerned about this problem," Breyer said. To which Clayton replied: "Martin Luther King didn't tell his followers to go into Woolworth's and bash the property" implying that repreentatives of the groups told pro-life advocates to engage in illegal acts by destroying abortion facility property.

At several junctures, the court asked the attorneys to address the meaning of "property," which is the basis for determining extortion, as defined by the federal Hobbs Act.

Clayton said "property" means anything tangible or intangible that someone obtains from someone else. In this case, she said, the pro-life activists used violence to scare away clients seeking abortions and temporarily shut down clinics.

Although U.S. Soliciter General Ted Olson supported that definition, several justices questioned if "property" can be loosely defined in cases where actual property was not seized.

Roy T. Englert, Jr., an attorney for the pro-life groups, told Justice David Souter that controlling something does not translate into obtaining it.

"My clients don't have the property today," Englert said. "They might have interfered with it at one point in time."

Fewer questions dealt with the nationwide injunction imposed against the pro-life groups by a federal trial judge. Although Olson sided with NOW on the extortion claim, he said the government opposed the use of injunctive relief in private civil cases.

Outside the court, demonstrators gathered prior to the arguments despite the frigid Washington weather. Both sides were represented, chanting their feelings and carrying signs for bystanders to see.

Afterward, Scheidler and Terry expressed optimism, as did NOW's president, Kim Gandy.

Scheidler denied NOW's allegations that his supporters committed violence and scoffed at the suggestion he was running a "pro-life mafia." He said a decision favoring NOW would have a chilling effect on all types of protesters.

That logic has brought together an unusual outpouring of support for the pro-life groups. Actor Martin Sheen, Martin Luther King Jr.'s son, People for the Ethical Treatment of Animals and the Southern Christian Leadership Conference all joined a friend-of-the-court brief opposing the extortion provision.

Gandy, however, said even abortion supporters must be held accountable for committing violent acts as a form of protest. She said such behavior goes beyond First Amendment protections.

Family Research Council President Ken Connor said this case is about abortion advocates attempting to silence their opposition.  "Acts of violence directed at abortion clinics, abortionists or women seeking abortions are wrong and already against the law and should be prosecuted without recourse to RICO.  What NOW and other pro-abortion groups intend is to threaten pro-lifers with financial ruin in order to silence debate."

"Ironically, NOW staged a protest rally on the steps of the U.S. Supreme Court earlier this morning," said Denise M. Burke, staff counsel with Americans United for Life. "Groups like NOW clearly value their own free speech rights, but have no problem distorting federal law to run roughshod over the rights of groups that disagree with them. This litigation is clearly an attempt by NOW to eliminate pro-life voices from the public square."

A decision is expected before next summer.