High court to hear abortion-clinic protest case – for 3rd time

Wednesday, June 29, 2005

WASHINGTON — A marathon 19-year lawsuit that could threaten the free-speech rights of protesters is back before the Supreme Court for a third time.

In one of the final actions of its term, the Supreme Court yesterday agreed to review Scheidler v. National Organization for Women yet again. It will be argued later this year or in early 2006.

The action came two years after many thought the Supreme Court had put an end to the litigation by undercutting all the premises behind an effort by NOW to hold abortion protesters liable for damages under a federal anti-racketeering law.

But the 7th U.S. Circuit Court of Appeals revived the case, and now the anti-abortion groups are asking the Supreme Court to block it again.

“This truly is a case of deja vu all over again,” wrote Alan Untereiner, lawyer for Joseph Scheidler and the Pro-Life Action League in seeking high court review.

“Enough is enough,” added a brief filed by a group of organizations and individuals concerned about the speech-stifling effects of using the federal Racketeer Influenced and Corrupt Organizations Act — or RICO — against organized protests. “This lawsuit has gone on for nearly two decades and makes the lawyers in chancery described in Charles Dickens’ Bleak House look like models of efficiency.”

The brief, filed on behalf of a range of groups including Catholic Workers, the International Brotherhood of Teamsters, and Citizens United for Alternatives to the Death Penalty, tells the high court they would face “staggering penalties” if RICO is used against them. RICO, enacted with organized crime in mind, penalizes conspiracies between two or more people that threaten persons or businesses engaged in interstate commerce.

RICO was one of the legal tools the abortion-rights movement sought to use to combat aggressive abortion protests that employed blockades and one-on-one communications with patients and staff to discourage use of abortion clinics. RICO allows for triple money damages against the conspirators who, NOW said, tried to run the clinics out of business — thereby fitting the definition of racketeering enterprises. The Supreme Court upheld that use of the law in 1994, but sent the case back to lower courts. There, the key issue was to prove the “predicate acts” of extortion and threats needed to build a case of RICO violation. After a trial, NOW won those points and substantial money damages against the anti-abortion groups, as well as a broad national injunction against similar protests in the future.

The case returned to the Supreme Court, which then ruled that the 117 predicate acts had not been proven. The definition of extortion, the Court ruled, requires not only interfering with someone else’s property, but actually acquiring it — which the anti-abortion activists had not done. The Court sent the case back down again, ordering that “all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed,” and also that the injunction be cancelled.

The 7th Circuit determined however, that the Supreme Court’s order did not pertain to four predicate acts under the Hobbs Act that were outside the scope of the high court’s review. These acts were threats of violence, not extortion itself, the 7th Circuit said, also offering a view of the law that could make threats of violence — not connected with robbery or extortion — felonies punishable by 20 years in jail.

So Scheidler has returned to the Supreme Court, asking it to reverse the 7th Circuit’s “flagrant disregard” for its previous ruling. Untereiner asserts the four Hobbs Act threats were part of the case and had been dismissed by the Supreme Court.

Untereiner also asked the Court to address the Hobbs Act issue directly, asserting that if the 7th Circuit’s interpretation is upheld, the law could cover “social protesters of all stripes, including those demonstrating for civil rights, environmental causes, or animal rights. It could also be applied to labor protests if acts or threats of violence occur.”

In reply, NOW lawyer Fay Clayton said the 7th Circuit ruling had acted properly and did not decide the Hobbs Act issue. She urged the Supreme Court not to review the case.

NOW President Kim Gandy, in reacting to yesterday's action, focused on the fact that the injunction against clinic blockades remains in effect. “We're grateful the injunction has been keeping women safe for seven years, and the Court's decision to give the case a full hearing will ensure that it stays in place at least until the Court renders a final decision.”

Jay Sekulow, chief counsel of American Center for Law and Justice, who has represented Scheidler’s group, said, “We're pleased that the Supreme Court has agreed to take this case and has a critically important opportunity to remove a dark cloud that has been hanging over the pro-life movement for nearly 20 years.”

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