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High court weighs whether pro-lifers guilty of extortion

WASHINGTON (BP)–Pro-life activists were not guilty of extortion in their protests at abortion clinics and should not be treated as mobsters, the U.S. Supreme Court was told in oral arguments Dec. 4.

The justices heard arguments in an appeal of a federal appeals court decision that an anti-racketeering law applies to protest activities at abortion clinics. The Seventh Circuit Court of Appeals upheld in 2001 a federal court’s ruling that pro-lifers were guilty under federal and state extortion laws. It also supported a nationwide injunction issued by the lower court barring the pro-lifers and their allies from interfering with clinic business and with the rights of women seeking abortions.

While the pro-lifers had participated in protected activities, some also had taken part in illegal activities, such as trespassing, blocking access to abortion clinics and destroying clinic property, the federal court ruled. It also found there were four acts of physical violence threatened or carried out.

The court also found the pro-life activists in the case were part of a loose national group to which the Racketeer Influenced and Corrupt Organizations Act, a 1970 law designed to thwart organized crime, applied because of the activists’ cooperative work against abortion clinics. The organizations involved were the Pro-life Action League (PLAN), led by Joseph Scheidler, and Operation Rescue.

Though the case involves pro-life actions, its ramifications for other forms of social protest and civil disobedience engendered support for the pro-lifers from a wide array of activists. Organizations supporting the pro-life side in part or in whole through friend-of-the-court briefs included not only anti-abortion groups but animal-rights and disability rights activists, death-penalty foes and anti-war protesters.

Some justices, especially Associate Justice David Souter, seemed to be concerned about the lower-court decision’s effect on First Amendment, free-speech rights. Associate Justice Anthony Kennedy denied one lawyer’s contention the First Amendment was not an issue in the case.

The arguments focused on whether the pro-lifers’ activities fit the definition of extortion. Roy Englert, representing the pro-lifers, told the court the protesters did not obtain property and therefore could not be guilty of extortion. Fay Clayton, lawyer for the National Organization for Women, argued, however, property is both tangible and intangible. She contended “any attempt to control lawful business decisions is extortion.”

It would be “like NOW telling members to tear up the greens [at the Augusta National Golf Club] because the club will not include women,” Clayton said. The Georgia club, site of the annual Masters golf tournament, has been targeted recently by opponents of its male-only membership policy.

His clients never disputed there was unlawful activity, such as trespassing, Englert told the justices. When questioned by Associate Justice Ruth Bader Ginsburg, Englert acknowledged there was coercion, but he said coercion “is a different crime than extortion.” Coercion was deleted from the language of the original federal anti-racketeering law, he said.

This was a “classic example of coercion, not extortion,” Englert said.

The arguments also dealt with whether a federal court can issue an injunction under RICO at the request of a private party.

A private party “has the same power as government to seek injunctive relief or divestiture,” Clayton told the court. Associate Justices Antonin Scalia and Souter said RICO gave the government that authority but seemed skeptical of a private party’s ability to do so.

Englert, meanwhile, said, “RICO simply does not authorize private injunctive relief.”

“There ought to be no question some form of reversal is required,” Englert said. He said he thinks almost everyone — except possibly Clayton — “agrees there has to be a remand” to the federal court for reconsideration of the case.

Pro-life lawyers speculated afterward at least a retrial should be in the offing. “The court was not receptive to the invitation to rewrite RICO or the Hobbs Act [the federal extortion law],” said Tom Jipping of Concerned Women for America.

If NOW’s definition “is what extortion means, then that makes Dr. Martin Luther King Jr. an extortionist,” said Carol Crossed of the Seamless Garment Network in a written release. “Woolworth’s surely lost money in the 1960s because of sit-in demonstrations at their segregated lunch counters. But no one would say that the civil-rights protesters obtained the property of the dime stores. There ought to be a huge difference between Tony Soprano and Dr. King.”

Ken Connor of the Family Research Council said in a written statement, “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.”

The Planned Parenthood Federation of America, which supported NOW, equated pro-life protesters with the terrorists who attacked the United States.

“All terrorists, including anti-abortion terrorists, should face the full force of the law when they violate our laws,” said PPFA President Gloria Feldt in a written statement. “Anti-abortion terrorism, part of a coordinated campaign to make abortion services inaccessible, threatens women’s most basic human and civil rights. The courts must not be limited in the tools available to protect women’s rights.”

Among those who signed onto briefs supporting the pro-life protesters arguments were not only anti-abortion groups, such as Americans United for Life and Concerned Women for America, but animal-right groups, such as People for the Ethical Treatment of Animals and The Fund for Animals; death-penalty opponents such as the Seamless Garment Network and Citizens United for Alternatives to the Death Penalty; disability rights activists, such as Not Dead Yet and Americans Disabled for Accessible Public Transit, and anti-war groups, such as Pax Christi USA.

Individuals who signed onto a brief opposing the lower court’s application of extortion included anti-war priests Daniel and Philip Berrigan, libertarian columnist Nat Hentoff, anti-death penalty activist Helen Prejean, and actor and liberal activist Martin Sheen.

Ted Olson, solicitor general for the Bush administration’s Justice Department, argued for the lower courts’ definition of extortion but did not take sides in the case.

A ruling in the combined cases, Scheidler v. NOW and Operation Rescue v. NOW, is expected to be announced by next summer.