Use of RICO to Sue Abortion Protesters OKd

The Supreme Court cleared the way Tuesday for a tough federal anti-racketeering law to be used against militant abortion protesters who break into abortion clinics and harass customers and employees.

With only one dissenting vote, the justices refused to consider an appeal by anti-abortion activists in Philadelphia who contended that they, like the civil rights protesters of the 1960s, had a First Amendment right to stage sit-ins.

Instead, the high court let stand an appeals court ruling that provided a powerful weapon--the federal Racketeer Influenced and Corrupt Organizations Act--against protesters who use intimidation or force to disrupt their targets.

Under the ruling, anti-abortion protesters may march in front of clinics, shout slogans and carry signs. But, if they invade a facility, attack its employees or block pregnant women from entering, they can be charged with violating the federal law.

If found guilty of RICO violations, they can be forced to pay three times the actual business loss suffered by a clinic. They must also pay the clinic’s legal fees.

The 26 protesters in the Philadelphia case were assessed fines and legal fees totaling $108,000. They were found to have broken into the Northeast Women’s Center on four occasions and to have damaged equipment, stolen supplies and assaulted employees.

The high court action gives a boost to a similar racketeering suit brought by the National Organization for Women against the Operation Rescue anti-abortion group.

The suit, filed in Chicago, accuses the group of conspiring to drive abortion clinics out of business through bombings, break-ins, violent protests and other illegal means. Although the case is still months away from trial, NOW is seeking a nationwide court injunction against Operation Rescue and its affiliated groups.

“This (high court action) certainly gives us encouragement,” Patricia Ireland, NOW’s general counsel, said in a telephone interview. “All the court is saying is that, if you act like a gangster, you’ll get treated like a gangster.”

Ireland and other lawyers cautioned, however, that the high court decision is not a binding ruling on the issue. It merely leaves standing a decision of the U.S. 3rd Circuit Court of Appeals in Philadelphia. Other federal courts are free to rule differently.

At the least, the decision indicates that the justices are not ready to set constitutional limits on RICO or to come to the aid of law-breaking anti-abortion activists.

Michael McMonagle, director of the Pro-Life Coalition of Southeast Pennsylvania and a leader of the protests, said that he would not be deterred by the decision. “This is one battle in a long war,” he said.

In his appeal to the high court, McMonagle said that, under RICO, Dr. Martin Luther King Jr. could have been branded a racketeer for leading sit-ins at segregated lunch counters in the South.

But the Philadelphia jury that heard the case was said to have been swayed by videotapes showing angry and belligerent protesters pushing and shoving pregnant women and clinic employees. The clinic’s lawyers said the high court decision means that abortion protesters may not use “fear and intimidation” to close abortion facilities.

Only Justice Byron R. White voted to hear the case (McMonagle vs. Northeast Women’s Clinic, 88-2137).

For the Supreme Court, the 1970 anti-racketeering law has become a persistent headache, with no relief in sight. The justices, both liberal and conservative, have made it clear that they are troubled by RICO’s broad reach and vague boundaries.

A RICO offense must be triggered by “at least two acts of racketeering” within a 10-year period. But racketeering is defined to include everything from murder and extortion to mail fraud or securities fraud. In the Philadelphia case, the protesters were found to have used extortion to close down the clinic.

Although it originally was designed to attack organized crime and its infiltration into legitimate businesses, RICO in recent years has been used against all manner of violators, from insurance agents and accountants to stock traders and sellers of pornographic books.

Nevertheless, in lengthy opinions in 1985 and earlier this year, the high court concluded that it would be up to Congress, not the judiciary, to rewrite the law and narrow its scope.

Next month, the Senate Judiciary Committee is expected to vote on a bill to curb RICO in civil cases. Under the legislation, in most business fraud cases plaintiffs no longer would be able to win triple damages and have their attorneys’ fees paid. But neither the Senate bill nor a similar House bill would alter the law when used in criminal cases brought by the government.

In other actions, the court:

--Overturned a libel award against a Pennsylvania newspaper for publishing secretly recorded telephone conversations that appeared in a court record (Easton Publishing vs. Boettger, 89-265). In June, the high court said that the news media may not be punished for accurately reporting lawfully obtained information.

--Agreed to decide a high-stakes patent dispute involving new medical equipment (Eli Lilly vs. Medtronic, 89-243). The Food and Drug Act permits makers of generic drugs to test-market their products before the patent on an original drug has expired. Earlier this year, a federal appeals court said that the same patent exemption applies to new high-tech medical devices. On appeal, the Eli Lilly Co. said that this decision will cost it millions of dollars in lost sales for its patented heart defibrillator and that it threatens to undercut medical research nationwide.

BACKGROUND

Almost 20 years ago, Congress enacted a broad anti-racketeering law, the Racketeer Influenced and Corrupt Organizations Act. It was aimed at Mafia figures infiltrating and preying on legitimate businesses. Two or more acts of racketeering--including everything from murder and extortion to mail fraud or securities fraud--can be prosecuted under the act. Increasingly, however, private lawyers have invoked the law in ways apparently never envisioned by Congress.

RESTRICTIONS FAIL: A Florida legislative panel rejected four restrictive abortion measures. A18