Pro-Life RICO Prosecutions Raise Free Speech Worries
By Robert B. Bluey
CNSNews.com Staff Writer
November 27, 2002

(CNSNews.com) - Abortion supporters and opponents will be keeping a close eye on the U.S. Supreme Court next week when it hears a case that some law scholars say could severely restrict the free-speech rights of protesters.

At issue in the case is a nationwide injunction that prevents the Pro-Life Action League from protesting outside abortion clinics. The National Organization for Women (NOW) sued the group's president, Joseph Scheidler, and other pro-life protesters under a federal racketeering law, commonly known as RICO.

Last spring the Supreme Court agreed to review a decision by the U.S. Court of Appeals for the Seventh Circuit upholding a jury verdict that found Scheidler and other pro-life defendants guilty. They were ordered to pay $258,000 and told to stay away from abortion clinics.

Abortion supporters, including NOW and the National Abortion and Reproductive Rights Action League (NARAL), claim the lawsuit was necessary to prevent a growing number of violent incidents at clinics across the county. They targeted Scheidler's group and Randall Terry's Operation Rescue. Terry settled with NOW in 1998.

"We were trying to grapple with a nationwide campaign," said Terry O'Neill, a vice president of NOW. "Joseph Scheidler said he was the pro-life mafia. If he was going to claim to be the mafia, we were going to apply an anti-mafia law to him."

But American University law professor Jamin B. Raskin, a self-proclaimed abortion supporter, said he is troubled by NOW's use of RICO statutes to silence abortion protesters. Raskin accused pro-abortion groups of hyping charges of violence to target pro-life groups.

If the Supreme Court adopts NOW's view, he said the case could undermine the free-speech rights of not only pro-life groups, but also animal "rights" activists and anti-globalization protesters.

"This is a ridiculous expansion of federal law," Raskin said. "The expansion of RICO would be utterly divisive. It's a radical assault on civil disobedience."

Despite the small number of cases the Supreme Court hears each year, next Wednesday's hearing in Scheidler v. NOW will mark the second time this dispute has come before the nation's highest court.

The justices ruled in 1994 that NOW could proceed with charges under RICO, which is typically used to crack down on organized crime.

The question before the court this time is whether RICO allows courts to impose an injunction in a private civil action.

NARAL's deputy legal director, Sara Love, who argued the case before a federal trial court, said there is no doubt Scheidler's organization was practicing extortion tactics against abortion clinics.

"When you clear away all the rhetoric, this case is about extortion," Love said. "Instead of trying to extort money, the defendants tried to extort the right to control these clinics."

Raskin speculated if the Supreme Court adopts the same broad definition about extortion as the Seventh Circuit did, lawsuits against protesters would likely continue in greater numbers.

For instance, in the case of anti-globalization protests in Washington, D.C. and elsewhere, Raskin said local businesses along with the World Bank and International Monetary Fund could attempt their own RICO lawsuit.

But O'Neill said liberal First Amendment advocates like Raskin have fallen into a trap by pro-life groups that are trying to turn the case into a free-speech dispute.

She cited 121 acts over a 12-year period as evidence that something needed to be done. That figure, however, has frequently been disputed. The pro-life groups that carried out the protests say they mostly consisted of non-violent civil disobedience involving sit-ins or blockades.

In addition, the Pro-Life Action League has recently accused the NOW of calling witnesses who lied in court.

Regardless of the disputed number of incidents, nothing has prevented local prosecutors from bringing charges for each crime that was committed, said Michael E. Rosman, general counsel for the Center for Individual Rights.

Assault laws would apply in some cases, he said, and if not, the 1994 federal Freedom of Access to Clinic Entrances Act probably would.

Love said individual prosecutions were a possibility, but that approach could not have halted the "nationwide campaign," by pro-life activists.

"RICO was enacted to get kingpins," Love said. "We're going after the kingpins, not the ones who are committing the violent acts. We're concerned about the leaders who are orchestrating the nationwide agenda."

The Supreme Court most likely will not rule in the case until next spring, but the justices' questions might serve as an indication of their views on the matter.

Raskin said the past few abortion-related cases to reach the court have been decided primarily on political grounds surrounding abortion regardless of the prevailing issues involved.



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