Justices to Hear Abortion Protest Case

By Charles Lane
Washington Post Staff Writer
Tuesday, April 23, 2002; Page A06

The Supreme Court announced yesterday that it will decide whether the lower federal courts properly used a law aimed at combating organized crime to stop antiabortion protesters from trying to block access to abortion clinics. Implications of the case could extend to civil disobedience tactics used by protesters across the political spectrum.

Attorneys for the antiabortion groups hailed the court's move as a sign their effort to remove what they call an impediment to political expression may succeed.

"It is clear that a federal statute designed for drug dealers and organized crime has been misapplied and used as a powerful weapon to silence the pro-life message," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative public interest law firm.

Other groups and individuals who use sit-ins, human chains and similar protest tactics -- most of them on the left -- have backed the antiabortion groups in friend-of-the-court briefs. Among these are actor-activist Martin Sheen and Roy Bourgeois, the founder of School of the Americas Watch, which has been involved in protests of U.S. foreign policy in Washington over the past few days.

People for the Ethical Treatment of Animals' friend-of-the-court brief, noting the animal-rights group's past campaign against McDonald's, Burger King and Wendy's, said that it, like the antiabortion protesters, has been sued under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The roots of the case lie in the heated abortion politics of the late 1980s and early '90s. Antiabortion demonstrators formed human chains and parked junked cars across abortion clinic entrances in order to stop patients from using the clinics.

But the clinics and their supporters said the protests were hardly nonviolent political expression. People seeking access to clinics were frequently roughed up or seriously injured, and clinic property was damaged.

In 1998, after 14 years of litigation, the National Organization for Women (NOW) convinced a federal jury in Illinois that Joseph Scheidler and other leaders of the Pro-Life Action League, along with Randall Terry's Operation Rescue, had run a mob-like, coordinated effort to put the clinics out of business through strong-arm tactics, in violation of RICO.

The district court assessed more than $250,000 in damages against the defendants and issued an injunction barring clinic blockades anywhere in the country. Combined with the enactment of a 1994 federal law designed specifically to protect access to clinics, the injunction all but ended clinic blockades.

The Chicago-based U.S. Court of Appeals for the 7th Circuit upheld the verdict last year. But the antiabortion protesters appealed to the Supreme Court.

The court's order yesterday said the justices would consider two of the groups' claims: that RICO did not give a private group such as NOW the right to seek a nationwide injunction, and that there could have been no extortion by the protesters, since federal law defines extortion as taking property through threats or violence and the protesters merely denied access to the clinics without actually taking them.

An attorney for NOW, Fay Clayton, said the passage of the 1994 Freedom of Access to Clinic Entrances Act made it unlikely that there would be a repeat of the most aggressive clinic blockades, no matter how the RICO case comes out, assuming the federal government enforces the law adequately.

It would, however, be harder for clinics to fend off such blockades because instead of relying on the existing nationwide injunction, clinics and their supporters would have to pursue injunctions in each jurisdiction where a protest occurs, she added.

This is the second time the court has intervened in the dispute. The first time, in 1994, the court handed a defeat to the antiabortion protesters, ruling RICO could be applied to a group even if it acted out of noneconomic motivation.

The case is Scheidler v. National Organization for Women, No. 01-1118, and Operation Rescue v. National Organization for Women, et al., No. 01-1119, consolidated. The court is likely to hear arguments in the fall.