The U.S. Supreme Court, in a unanimous 8-0 decision last week (Justice Samuel Alito did not vote since he was not on the court when oral arguments in the case were heard), ruled that abortion clinics cannot use federal laws against racketeering and extortion to prevent demonstrations in front of clinics by anti-abortion demonstrators. This sound decision should end a 20-year campaign to stifle such protests.
The decision in Scheidler v. National Organization for Women was unanimous largely because it was about the right to protest rather than about abortion per se. Some 20 years ago NOW sued Operation Rescue and its leader, Joseph Scheidler, arguing that the group’s anti-abortion protests violated two federal laws.
The 55-year-old Hobbs Act prohibits obstructing commerce through robbery, extortion and acts of violence. The 1970 Racketeer Influenced and Corrupt Organizations (RICO) Act permits triple damages if a “pattern of racketeering activity” can be shown through two violations of the Hobbs Act.
Some acts of violence did occur during anti-abortion protests in the 1980s, but they were already illegal under state and local laws. To argue that the protests amounted to a “pattern of racketeering” was a stretch, but some lower courts had permitted that interpretation and issued injunctions against demonstrations.
In 1994 the Supreme Court allowed abortion clinics to use Hobbs and RICO but said they would have to prove there was actual extortion. In 2003 it held that lower courts had erred in deciding that 117 acts that took place in conjunction with protests amounted to extortion or racketeering. The 7th Circuit appeals court kept the issue alive by ruling that four additional actions not reviewed in that decision might constitute racketeering. On Tuesday the Supreme Court, in essence, told lower federal courts to stop stretching.
Protests against activities of which one disapproves are an essential element of freedom of speech and part of a long and healthy American tradition. Violence in conjunction with protests can be handled by long-established state and local laws. NOW’s attempt to shut down protests through a far-fetched interpretation of laws designed to control criminal racketeering was unworthy. The Supreme Court’s decision to end that effort was correct.