A 20-year-old legal fight over protests outside abortion clinics ended Tuesday with the Supreme Court ruling that federal extortion and racketeering laws cannot be used against demonstrators.
The 8-0 decision was a setback for abortion clinics that were buoyed when the 7th U.S. Circuit Court of Appeals kept their case alive two years ago despite the high court’s 2003 ruling that had cleared the way for lifting a nationwide injunction on anti-abortion leader Joseph Scheidler and others.
Anti-abortion groups appealed to the justices after the lower court sought to determine whether the injunction could be supported by findings that protesters had made threats of violence.
In Tuesday’s ruling, Justice Stephen Breyer said Congress did not create “a freestanding physical violence offense” in the federal extortion law known as the Hobbs Act.
'A great day for pro-lifers'
Instead, Breyer wrote, Congress addressed violence outside abortion clinics in 1994 by passing the Freedom of Access to Clinic Entrances Act, which allows for court injunctions to set limits for such protests.
“It’s a great day for pro-lifers,” said Troy Newman, president of Operation Rescue.
Kim Gandy, president of the National Organization for Women, said the decision was disappointing because the injunction had decreased violence outside clinics nationally.
She said the clinic access act is problematic because it requires abortion providers to seek injunctions “city by city” and turns back the clock to the late 1980s when NOW played cat and mouse with Operation Rescue in trying to anticipate the cities and clinics that abortion protesters planned to target next.
Newman said his group and others have set their sights on the clinic access law, filing legal challenges they hope will lead courts — possibly even the Supreme Court— to overturn it.
Also Tuesday, the Missouri state Supreme Court upheld the state’s 24-hour waiting period for abortions, rejecting arguments that it was overly vague and deprived people of liberty and privacy rights.
The law, enacted when legislators overrode a veto of then-Gov. Bob Holden, requires physicians to wait 24 hours after conferring with women before performing abortions. It requires that consultation to cover such things as “the indicators and contraindicators” and the “physical, psychological and situational” risk factors associated with abortions.
Abortion opponents hope momentum is shifting in their favor: Last week, the high court decided to consider reinstating a federal ban on what opponents call partial-birth abortion, and the South Dakota legislature’s passed a bill that would make it a crime for doctors to perform an abortion unless it was necessary to save the woman’s life.
President Bush, asked about the South Dakota measure in an interview with ABC News’ Elizabeth Vargas, said Tuesday he hadn’t “paid attention to that, to this particular issue you’re talking about” but “I am not going to prejudge how the Supreme Court is going to judge a particular issue.”
However, he said, “My position has always been three exceptions: rape, incests and the life of the mother.” Asked if he would include the broader category of health of the mother, Bush said: “No. I said life of the mother, and health is a very vague term, but my position has been clear on that ever since I started running for office.”
In the abortion protest case, social activists and the AFL-CIO had sided with the demonstrators out of concern that the federal extortion law could be used to thwart their efforts to change public policy or agitate for better wages and working conditions.
Twenty years of legal battles
The legal battle began in 1986, when NOW filed a class-action suit challenging tactics used by the Pro-Life Action Network to block women from entering abortion clinics.
NOW’s legal strategy was novel at the time, relying on civil provisions of the 1970 Racketeer Influenced and Corrupt Organizations Act, which was used predominantly in criminal cases against organized crime. The lawsuit also relied on the Hobbs Act, a 55-year-old law banning extortion.
A federal judge issued a nationwide injunction against the anti-abortion protesters after a Chicago jury found in 1998 that demonstrators had engaged in a pattern of racketeering by interfering with clinic operations, menacing doctors, assaulting patients and damaging clinic property.
But the Supreme Court ruled in 2003 that the extortion law could not be used against the protesters because they had not illegally “obtained property” from women seeking to enter clinics to receive abortions.
Justice Samuel Alito did not participate in the decision because he was not a member of the court when the case was argued.
The cases are Scheidler v. NOW, 04-1244, and Operation Rescue v. NOW, 04-1352.