WASHINGTON- Supreme Court justices convened Wednesday to consider whether federal laws meant to combat organized crime and corruption can be used to punish anti-abortion demonstrators. At the center of the discussions are the contentious issues of abortion, free speech, and violent protest.
Activists like actor Martin Sheen, animal rights groups, and even some pro-choice organizations are siding with anti-abortion forces, fearing that they too may face harsher penalties for demonstrating.
The Supreme Court is deciding whether or not abortion clinic protestors who use forceful tactics, such as blockading, can be given more stringent penalties under federal racketeering and extortion laws for interfering with businesses.
These laws were intended to combat corruption, not to punish demonstrators, the court was told by Roy Englert Jr., the lawyer for Operation Rescue and anti-abortion leaders. Englert added that there could be severe repercussions for protestors if the court chooses not to intervene. If the current law remains unchanged, there could be harsh penalties for any protest leader “whose followers get out of hand.”
An attorney representing abortion clinics in Delaware and Wisconsin and the National Organization for Women said that current laws protect local businesses from violent protests that drive away clients.
The Supreme Court has accepted very few abortion cases in the decade following its reaffirmation of the landmark Roe v. Wade case, which ruled that women have a constitutional right to abortion. The last abortion case was held two years ago, when justices struck down state “partial-birth” abortion laws, ruling that they imposed an undue burden on women’s rights to terminate pregnancies.
"As hard as people try to say this case isn't about abortion,” said Joseph Scheidler, one of the protestors challenging the punishments, “it is about abortion.”
Scheidler argued that abortion foes are now afraid to protest at clinics lest they be charged with racketeering, rather than something less serious like trespassing.
Scheidler and others were sued in 1986 by abortion clinics that accused them of blockading abortion entrances, threatening doctors, patients, and staff, and destroying clinic equipment, during a 15-year campaign to limit abortions. The group was ordered to pay $258,000 in restitution fees, and was barred from interfering with abortion groups nationwide for 10 years.
The current punishments are coming under the 32-year old Racketeer Influenced and Corrupt Organizations Act (RICO), and the Hobbs Act, a 1946 law passed to crush organized crime. The Hobbs Act makes it a crime to forcibly take property from others.
The issue dates back to the 1980’s when large groups of anti-abortion protestors would use aggressive tactics to disrupt clinics. Although the demonstrators claimed that they did not use any violence in their protests, an Illinois jury in 1998 found demonstrators guilty for dozens of violations, including four acts involving either the threat or use of physical violence.
In its ruling, the Supreme Court must differentiate between political activity that falls under the protection of first-amendment rights, and protests that are illegal.
Both sides picketed on Wednesday outside of the court, contributing to an already emotionally charged atmosphere.
The Bush administration has upset some conservatives by supporting arguments from both the clinics and the protestors throughout the case. Solicitor General Theodore Olson told the court that demonstrators could be sued for stopping business at clinics. However, he also tried to ease fears that the case would limit other types of expressive freedom.
"The First Amendment is not an issue in this case," Olson said.
Justice Anthony M. Kennedy responded by saying "There's always a First Amendment implication in a protest case."
Justices questioned whether black civil rights leaders would have been punished for boycotting white businesses under the current law.
"Martin Luther King didn't tell the people to go into Woolworth and bash people," Fay Clayton of Chicago, the lawyer for NOW and the clinics, told the court.
Clayton added that even her clients would be punished if they tore up the golf course at Augusta National Golf club to protest the Georgia institution’s refusal to admit women into the tournament.
Justice Antonin Scalia, who has opposed abortion rights, said the punishment seemed unusual for the anti-abortion protests.
"It wasn't smacking people around. It was just not letting people in (to the clinics)," Scalia said.
Justice Sandra Day O'Connor, an abortion rights supporter, disagreed.
"We're not talking about conduct that's lawful here," O'Connor said. "To paint the picture we're talking about just pure speech is not the case."
The cases are Scheidler v. National Organization for Women, 01-1118, and Operation Rescue v. National Organization for Women, 01-1119.
By Roy Li