- The Washington Times - Thursday, February 27, 2003

The Supreme Court in an 8-1 decision yesterday declared that protesters outside abortion clinics may not be branded "extortionists and racketeers," freeing such pro-life groups as Operation Rescue from demonstration bans.
"We hold that petitioners did not commit extortion because they did not 'obtain' property from respondents as required by the Hobbs Act," said the decision authored by Chief Justice William H. Rehnquist. The ruling neutralized a tool that abortion clinics used to shut down blockades by pro-life demonstrators.
Only Justice John Paul Stevens dissented from the decision. He termed concerns by two of his customary allies on the bench as "misguided," a reference to fears by Justices Ruth Bader Ginsburg and Stephen G. Breyer that the legal theory used against pro-life demonstrators could stifle civil rights protests.
The ruling nullified $257,780 in damage awards to two clinics and lifted the permanent nationwide injunction that barred groups and individuals in the case from protesting at abortion clinics.
Pro-life organizations viewed the decision not to equate protesters with organized crime as their most important victory since abortion became a leading national issue with the 1973 Roe v. Wade ruling that barred states from outlawing abortion.
"I would not hesitate for a moment to say that removing that extortion and racketeer view is almost a legitimization of protests," said lawyer Jay Sekulow, who argued on behalf of the demonstrators before the high court and worked on the case for 16 years.
"If we had lost today, I think it would have stamped the pro-life protest movement with the view that they're racketeers and extortionists. Who would want to be associated with that context?" said Mr. Sekulow, chief counsel for the American Center for Law and Justice, a conservative civil liberties group.
Pro-choice groups predicted that women seeking abortions would face renewed hostility outside clinics.
"It's a green light for those kingpins to start again orchestrating violence across the country," countered Kim Gandy, president of the National Organization for Women, which said its role in the case consisted of fund raising. She said the decision makes it "much, much more difficult for us to protect women and doctors at reproductive clinics across the country."
In asking for money, NOW boasts of victory in a preliminary Supreme Court round in 1994, with a decision its Web site calls pivotal to the feminist group's battle "against anti-abortion terrorists who organize others to bomb and block clinics and to intimidate patients and health care providers."
Planned Parenthood Federation President Gloria Feldt called the protesters "anti-choice terrorists." She said Planned Parenthood clinics will use every legal tool "to protect our patients, staff and volunteers from harassment and terrorism."
A diverse range of groups and individuals such as the American Civil Liberties Union, actor Martin Sheen, the Southern Christian Leadership Conference, animal rights organizations and First Amendment activist Nat Hentoff supported at various points in the case lifting the threat of harsh penalties for pro-life demonstrators because the tactic threatened other causes.
"This Supreme Court decision … is a stunning defeat for the National Organization for Women, who have spent two decades and millions of dollars prosecuting peaceful, nonviolent, pro-life protest," said Troy Newman, director of Operation Rescue West, a Christian organization seeking to end abortion.
"The nationwide injunction that has been dissolved is a vindication for Joe Scheidler and the entire pro-life movement," said Mr. Newman, referring to the Pro-Life Action Network (PLAN) leader who received financial support in the case from the Alliance Defense Fund, a Christian legal organization based in Scottsdale, Ariz., devoted to family issues.
Mr. Scheidler predicted that the ruling would attract supporters to the pro-life cause but not renew violent activism outside clinics.
"That's in the past," Mr. Scheidler said. "Now we can go on protesting and counseling at the clinics, doing the things that we do. We'll have much more freedom."
Chief Justice Rehnquist's opinion focused on the narrow point that extortion laws applied only to "criminal acquisition of property" and did not implicate First Amendment speech rights.
Justices and attorneys for the pro-life groups agreed that the protesters' conduct violated other criminal laws, including the Freedom of Access to Clinic Entrances Act of 1994.
"[Protesters] may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property," said the opinion, which described property as something of value to be used or sold. "Even when their acts of interference and disruption achieved their ultimate goal of shutting down a clinic that performed abortions, such acts did not constitute extortion."
The decision ends the legal battle begun in 1986 by NOW and other pro-choice groups against the PLAN coalition. NOW argued that protesters in Atlanta, Milwaukee, Los Angeles and other cities assaulted clinic personnel and patients, invaded clinics, and destroyed medical equipment. Protesters said the clinics held them liable for lawfully praying, picketing and distributing literature.
After a seven-week trial in 1998, a federal jury in Chicago declared the protests part of "a pattern of racketeering activity." The jury found 92 violations of state and federal extortion laws, and awarded damages totaling $85,926 to two National Women's Health Organization clinics. Those damages then were tripled under the Racketeer Influenced and Corrupt Organizations Act.
In the lone dissent to what he called the high court's "murky opinion," Justice Stevens said Justices Ginsburg and Breyer expressed "misguided" concern that the case would expand use of RICO and the Hobbs Anti-Racketeering Act, which made extortion a federal crime.
"The principal beneficiaries … will certainly be the class of professional criminals whose conduct persuaded Congress that the public needed federal protection from extortion," Justice Stevens wrote.


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