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Eek! Abortion!
[February 27, 2003]

By S. M. Oliva

When it comes to anything abortion-related, all sense of media objectivity go out the window. Consider the various viewpoints offered on yesterday’s Supreme Court ruling in Scheidler v. NOW, Inc. and Operation Rescue v. NOW, Inc., the climax of a 17-year legal battle between abortion clinics, the organized feminist movement, and their anti-abortion opponents. The Court itself was asked to rule on a fairly narrow legal question, which it did with efficiency in Chief Justice William Rehnquist’s 16-page opinion. The parties and their respective media allies, however, are seeking a larger message on what the decision means for abortion and constitutional rights in general.

In 1986, the National Organization for Women (NOW) and friends sued a coalition of anti-abortion groups known as PLAN. The suit was brought in federal court under the Hobbs Act and the Rackateer Influenced and Corrupt Organizations (RICO) Act. NOW claimed that PLAN was an organized criminal conspiracy designed to prevent the operation of abortion. In 1991, a federal judge dismissed NOW’s complaint, saying that PLAN’s alleged actions were not “economically motivated.” One year later, the Supreme Court reinstated the case, saying economic motivation was not required to sustain a RICO case, only evidence of a racketeering conspiracy. After returning to the trial court, a jury found the anti-abortion defendants guilty of dozens of violations of the Hobbs and RICO acts. The court awarded financial damages and issued a nationwide injunction against PLAN’s blocking access to abortion clinics.

On appeal, the U.S. Court of Appeals for the Seventh Circuit in Chicago affirmed the conviction. A three-judge panel rejected the anti-abortion defendants’ argument that they did not violate the Hobbs Act, In full, the Hobbs Act states:

[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.”

Extortion requires that one “obtain” the property of another. In this case, the defendants argued that they did not “obtain” the abortion clinic’s property, only obstructed its use. While this violates other laws—notably the federal Freedom of Access to Clinic Entrances Act of 1994—it falls outside the scope of an extortion statute. The Seventh Circuit disagreed, saying that the property “obtained” was not the physical property of the clinics, but the right of women to seek medical services from the clinic and the right of the clinic employees to perform their jobs free of harassment.

Yesterday, the Supreme Court reversed the Seventh Circuit, holding 8-1 that the lower court gave too broad a definition to “property” under the Hobbs Act. The core issue is whether “property” rights, for purposes of extortion, extend to the right to control one’s business. Put simply, the Court said that to “obtain” property—a necessary element of extortion—one must deprive the rightful owner of the property, then take possession of it for himself. Simply depriving the owner of the effective use of their property is not the same thing.

At first glance, this may seem incorrect. After all, what good are property rights if an owner’s interest in actually using the property isn’t protected? But that’s not what the Court was asked to decide. Instead, the justices were presented with a highly narrow question of statutory interpretation—how to apply “extortion” in the limited context of the Hobbs Act. Based on the legislative history of the act and the common law understanding of “extortion,” the Court ruled correctly. Using coercion to impair a property owner’s business interests is a crime, just not extortion. That offense requires one take actual possession of the property for his own use through coercive means.

Since the Hobbs Act conviction of the anti-abortion forces could not be sustained, the RICO charges—which was predicated on the Hobbs charges—were also invalidated.

This case did not involve a constitutional issue. The Court’s opinion did not extend First Amendment protections to the illegal acts of the anti-abortion defendants. In fact, the Chief Justice’s opinion took care to note that various aspects of the defendants’ activities were patently illegal—a concession that even their counsel made at oral argument. The only issue here was statutory interpretation.

Yet this hasn’t stopped various parties from claiming a broader mandate from yesterday’s ruling. The conservative Washington Times headlined their story on the Court’s ruling: “High Court rules pro-life protests a lawful right.” The Court did no such thing. They simply held the acts of the PLAN groups were not extortion. Their actions still constituted trespass and illegal coercion. The Times story quotes the anti-abortion groups’ attorney, Jay Sekulow, as saying the ruling “is almost a legitimization of protests.” Again, this is a fairly tortured reading of a narrow statutory interpretation.

For their part, pro-abortion forces also overstate the impact of this case. NOW President Kim Gandy said: "It's a green light for those kingpins to start again orchestrating violence across the country.” This is unlikely, given the existence of separate federal protections for abortion clinics. This case never had much to do with preventing violence. Instead, NOW was motivated to use the RICO statute because it held the promise of potentially crippling financial damage awards. The existing clinic protection laws do not allow the courts to be used to bankrupt opponents the way RICO does.

This demonstrates the underlying problem with RICO itself. The law was initially designed to permit government officials to take down organized crime syndicates without having to necessarily prove every element of criminal conspiracy. Congress intentionally gave RICO vague construction in the hope that judges would lean in the government’s favor in legally murky situations. What Congress probably didn’t consider is how such vagueness could be used by groups like NOW to smite their opponents.

It’s also worth noting that NOW is an odd candidate to be advancing the type of proactive argument in support of property rights that they did in this case. NOW’s belief that property rights extend to the control of one’s business is hardly consistent with their stance on, well, just about every other political issue of importance. NOW routinely advocates the violation and repeal of property rights—such as opposition to tax cuts, increased government intervention in health care, and greater antitrust enforcement. As observed before on this page, NOW’s support of individual rights seems limited solely to the abortion question. Indeed, in the aftermath of yesterday’s decision, NOW officials said they would consider trying to apply the USA Patriot Act—a constitutionally dubious piece of anti-terrorism legislation—to continue their efforts to stop anti-abortion forces. This kind of moral hypocrisy will win NOW few friends in the long term.

Having said that, NOW’s opponents in this case are far from honorable. Joseph Scheidler and Operation Rescue, the named defendants, are the kind of people who give religious fanatics a bad name. According to the trial proceedings in this case, Scheidler and Operation Rescue routinely staged violent break-ins at abortion clinics, destroying property, attacking clinic personnel, and even assaulting women trying to enter the clinic for non-abortion medical services. One doctor described helping a 14-year-old pregnant rape victim cross “violent” blockades in front of a clinic. The stories just go on and on.

Make no mistake: While NOW is a group of misguided, irrational, and possibly evil collectivists, Scheidler and Operation Rescue are human filth of the worst order. The fact they claim to represent unborn babies does not make their cause honorable or even remotely justifiable. They are not “pro-life,” but anti-life. They seek the force of government to deny women the right to own and control their bodies. Without this ability, the right to life itself is moot and without moral value. While it is regrettable that many pregnancies end in abortion, we must not forget that the destruction that occurs is of potential life, not actual life. As human beings, we must draw the legal line at actual persons; to do otherwise invites the kind of irrational mysticism prevalent in the anti-abortion movement, and generally speaking in conservatism.

Returning to the Supreme Court’s decision: It must be repeated that yesterday’s ruling does not fundamentally change the nature of abortion rights, protest rights, or much of anything really. RICO and the Hobbs Act were never intended by Congress to be used in the manner NOW proposed; the Court simply recognized that reality. Had the Court agreed with the Seventh Circuit, the result would likely have been a rush to find even more brazen uses of RICO. If anything, the eight-justice majority—including five justices who’ve voted to uphold Roe v. Wade—should convince people that the Court saw little in this case beyond a technical reading of statute.

If there is a need to enhance protections for women’s health clinics, then by all means NOW should pursue the issue with Congress and law enforcement authorities. But leave RICO and Hobbs out of the equation. As Justice Ginsburg noted in her concurrence, the broad application of these laws proposed by NOW could easily be turned against other groups that engage in legitimate protest.


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