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NATIONAL | summer 2003

Supreme Irony: How Not to Deter Clinic Violence

Ms. Summer 2003

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How could it have happened? How could the U.S. Supreme Court vote 8-1 to overturn a federal racketeering judgment against anti-abortion groups that for years have violently tried to shut down women’s health clinics?

Many of us believe that the Supreme Court seriously erred in its decision last February. The court’s ruling in Scheidler v. National Organization for Women is troubling because it takes away a powerful deterrence to violence against abortion providers.

The case began in 1986 when the National Organization for Women and two women’s health care facilities filed a lawsuit against anti-abortion groups and their leaders, including the Pro-Life Action Network, Joseph Schneidler and Operation Rescue.

The lawsuit was distinctive because the plaintiffs sued under the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO is a powerful tool because it allows the tripling of damages awarded plaintiffs and also permits injunctions against wrongful conduct. Although RICO was initially adopted to fight organized crime, its broad language can be used to prevent and remedy many illegal conspiracies.

Women support a protested clinicRICO applies when the conduct under considerations violates any one of a number of federal laws. NOW’s complaint alleged that the defendants were engaged in a conspiracy to shut down abortion clinics through a pattern of extortion across the country. This is a violation of the federal Hobbs Act, which prohibits extortion.

In 1994, the Supreme Court held that NOW’s suit could go forward, rejecting the argument that RICO applies only when a defendant has an economic motive. In the seven-week trial that followed in U.S. District Court in Chicago, the jury looked carefully at what anti-abortion groups were doing at clinics, concluding that the defendants had violated RICO: This wasn’t about blockades, it was about threats and violence. The jury awarded 31,455 to one clinic and 54,471 to the other. Both sums were tripled pursuant to RICO.

Additionally, the District Court entered a permanent injuction prohibiting the defendants from obstructing access to clinics; trespassing on clinic property; damaging clinic property; or using threats of violence against the clinics, their employees or their patients.

The judgment was appealed, and the case ended up back in the U.S. Supreme Court last year. In the majority opinion by Chief Justice William Rehnquist, the Court ruled that extortion under the Hobbs Act requires an effort to take away a person’s money or property. It cannot be based, Rehnquist wrote, on depriving a person of an intangible, such as a fundamental constitutional right.

The court’s decision is more than troubling. It’s plain wrong. For decades, courts interpreted the Hobbs Act broadly to include not only tangible property but intangibles as well. There is an obvious inconsistency between the Supreme Court’s holding in 1994- that RICO is not limited to situations whereby the defendant has an economic motivation- and the court’s conclusion in 2003 requiring that money or property be threatened.

Extremist foes of abortion are engaged in a systematic effort to intimidate doctors. Violence against women’s health care facilities is increasing. In 2002, 23 percent of clinics suffered violence such as blockades, bombings, arson, physical assaults and gunfire.

Unfortunately, these tactics of intimidation work: The targeting of abortion clinics has caused many to shut down and some workers to abandon them. Violence has frightened abortion providers, with good reason. And the effect is felt on the ground. In 2001, 87 percent of counties in the United States had no abortion providers, and 24 percent of the women obtaining abortions had to travel from 50 to 100 miles for this basic medical service, according to the Alan Guttmacher Institute.

The simple reality is that violence and threats of violence undermine a woman’s right to choose. The Supreme Court’s decision is likely to be read by anti-abortion extremists as a signal to intensify their campaigns of violence and intimidation. The threat of triple damages under RICO was a powerful deterrent that no longer exists.

The federal government must be pressured to use its remaining legal tools to protect health care facilities. The Freedom of Access to Clinics Entrances Act (FACE) provides for both criminal prosecutions and civil penalties against those who obstruct clinics. At the moment it’s the best thing we’ve got.