Another round in RICO abortion case
on Jun 8, 2005 at 10:47 am
The nation’s longest-running fight over abortion — now in its 19th year — will have at least one more round. The Supreme Court may decide later this month whether that round will be in the Court itself, or in a U.S. District Court in Chicago. Filed in 1986, the case brought by abortion rights advocates seeking to use the 1970 RICO anti-racketeering law to stop clinic blockades is back at the Court for the third time.
Before the Court at its closed-door meeting on June 16 are two new appeals: Scheidler, et al., v. National Organization for Women, et al. (docket 04-1244) and Operation Rescue v. NOW, et al. (04-1352). (The case was originally scheduled to be considered June 9, but has now been reset for the 16th.)
There are several issues raised, but they come down to a claim that the 7th Circuit in its most recent ruling failed to follow the Supreme Court’s 2003 decision in this case by sending the dispute back to District Court for one further proceeding. The leaders of the Pro-Life Action Network (in 04-1244) and Operation Rescue contend that the Supreme Court brought the whole case to a halt in 2003, and now the Circuit Court is wasting everybody’s time and resources by prolonging it.
Although most of the public and judicial attention to the case has focused on the once-novel notion that RICO could be used to put a stop to anti-abortion forces’ attempts to shut down abortion clinics, there now lurks in the case a major issue of criminal law. That is whether the federal Hobbs Act (18 U.S.C. 1951) criminalizes only extortion and robbery, or whether it also sweeps more broadly and bans acts of violence or threats of violence that obstruct interstate commerce, whether or not those acts or threats involve extortion or robbery. If, ultimately, that broadening were to occur, it could make the Hobbs Act — a law enacted in 1946 to curb labor-management racketeering — into a sweeping federal anti-violence law.
The Supreme Court very likely would be interested in that issue, and, no doubt, so would the Justice Department. The problem at this stage, however, is that the 7th Circuit’s latest ruling — while suggesting that the Hobbs Act could be read that broadly — stressed that it was not deciding that issue, and noted that that question could disappear after the new round in District Court.
The Supreme Court, though, could hear part of the case without getting to that issue itself, if it confined its review to clarifying the scope of its 2003 ruling. That may well be the decisive issue as the Justices on Thursday ponder a grant or denial of review.
This marathon case has long been considered a titanic struggle in the sidewalk wars over abortion. Attorneys for NOW and for a nationwide class of abortion clinics won a major legal breakthrough when the Supreme Court, in its first ruling in the case in 1994, ruled that RICO could be used as a challenge to clinic blockades. That sent the case to trial, resulting in $276,000 in damages against anti-abortion demonstrators, plus a nationwide injunction against their blockades.
But, in the second trip to the Supreme Court, the Justices by an 8-1 vote on February 26, 2003, found insufficient evidence of extortion — under either the Hobbs Act or state extortion law — to serve as predicate criminal acts for a RICO violation. As part of that ruling, the Court wiped out the nationwide injunction.
The central issue that has arisen since then is whether the Supreme Court meant to end the case right there, eliminating all bases for a RICO violation and thus for an injunction. But the 7th Circuit, in an order on remand from the Supreme Court on February 26, 2004, and a refusal on January 28 of this year to reconsider that order, said part of the clinics’ case remains alive. There were four acts of violence or threats of violence found by the jury that were not among those at issue before the Supreme Court in 2003, the Circuit Court found. Thus, the District Court should first consider whether those would supply an independent basis for a new, narrower injunction against the blockaders.
“The only remaining question,” it said, “is whether any injunction is appropriate to redress the four acts of physical violence that the jury found had taken place and that were not encompassed within the Supreme Court’s ruling. This does not open Pandora’s Box. It merely resolves the final loose ends in this long-running litigation in a manner that is fair to both sides and that acknowledges the need to resolve all properly presented issues.”
Three judges who wanted en banc rehearing argued that the Supreme Court in 2003 had held that there was no extortion, and that should mean that “no Hobbs Act violation possibly exists.”
