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Justices likely to favor pro-life demonstrators again

WASHINGTON (BP)–The U.S. Supreme Court appeared poised Nov. 30 to settle once and for all in favor of pro-life demonstrators a case it thought it had disposed of two years ago.

The justices heard oral arguments in a case involving the use of a federal anti-racketeering law against protesters outside abortion clinics. When the high court ruled 8-1 in a 2003 opinion that the Racketeer Influenced and Corrupt Organizations Act (RICO) did not apply to abortion clinic protests and remanded the case to the Seventh Circuit Court of Appeals in Chicago, the justices clearly believed they had settled the matter.

The Seventh Circuit, however, heeded arguments by the National Organization for Women and decided the high court had not dealt with four of the 121 violations of federal and state law committed by demonstrators as determined by a federal judge. The judge had said those four acts involved threats of violence. The pro-life protesters -– Operation Rescue and Joseph Scheidler, national director of the Pro-life Action League –- appealed to the Supreme Court, and the justices again agreed to accept the case.

This is the third time the court has ruled on the case. It first issued a decision in 1994, when it answered a procedural question and returned it to the lower court

During the latest oral arguments, some of the justices did not conceal their disdain for the Seventh Circuit’s action. Even associate justices as divided as Antonin Scalia, who opposes the Roe v. Wade opinion legalizing abortion, and David Souter, who favors abortion rights, appeared to be in lockstep this time.

The Seventh Circuit “didn’t think we knew what we were doing,” Scalia said.

After saying the justices had made it clear in 2003 the decision should be reversed, Souter told NOW lawyer Erwin Chemerinsky a “pretty good” case could be made the Seventh Circuit did not follow the Supreme Court’s ruling.

At the close of arguments, lawyer Alan Untereiner asked the justices to “make very clear” when they remand the case that the judgment should be reversed in favor of Scheidler and Operation Rescue.

Afterward, Scheidler told Baptist Press he was “very encouraged,” because “I think [the justices] are taking this very personally. I think they were defending their decision, which was a very good decision. I hope this time it’s over.”

Bill Saunders, bioethics specialist for the Family Research Council, told BP afterward he thought the justices would reiterate their earlier opinion with a solid majority, saying he thinks “it will be probably about 7-2, but that’s just a guess.”

In its 8-1 opinion two years before, Associate Justice John Paul Stevens was the lone dissenter.

Supporters of the pro-life demonstrators have always contended the case, which began with a NOW lawsuit in 1986, was about free speech more than abortion. During the lengthy process, animal rights and disability rights activists, death penalty foes and anti-war protesters filed friend-of-the-court briefs in support of Scheidler and Operation Rescue. Even a leading labor organization, the AFL-CIO, supported the pro-lifers this time because of concern about an adverse ruling’s impact on strikes.

“It’s a case about [the] First Amendment,” Scheidler told BP. “Are you allowed to speak? Are you allowed to go out and talk to people or not? And if you go out and talk to people and try to tell a woman that an abortion is not good for her health and not good for her moral[ly]? If that’s violent, then any preacher, any minister, any priest, any pastor, anybody who thinks somebody’s doing something they shouldn’t do and tries to warn them, even putting their money in a bad account or something, could be a threat of violence. And that’s what they’re trying to do.”

In 2003, the Supreme Court ruled the pro-lifers did not violate the anti-racketeering law because their activities did not qualify as extortion. The protesters had not obtained property from abortion clinics or abortion rights advocates, the court ruled. The Hobbs Act, a federal, anti-extortion law, requires “not only the deprivation but also the acquisition of property” in order to reach the definition of extortion, late Chief Justice William Rehnquist wrote in the majority opinion.

The protesters may have been guilty of coercion, but that crime was not included in the Hobbs Act, the chief justice said.

At the time, NOW and its allies said they would use the Freedom of Access to Clinic Entrances Act and all other legal means to thwart pro-life activists. FACE is a 1994 federal law that outlaws the use of force or the threat of force to interfere with a person seeking or providing an abortion. FACE was not affected by the court’s decision on RICO.