Justices Side With Antiabortion Groups

Times Staff Writer

The Supreme Court freed Operation Rescue and other aggressive antiabortion protesters Wednesday from a nationwide order that barred them from blocking abortion clinics, damaging their property or using violence against their staffs and patients.

In an 8-1 decision, the high court said these antiabortion protesters were wrongly charged under the federal anti-racketeering law.

The protesters may well have engaged in “a nationwide conspiracy to shut down abortion clinics” through force and intimidation, the court said. But they did not “obtain property” from the clinics, and therefore did not violate the extortion and racketeering laws, the justices said.

The surprising decision ends a 17-year legal battle between the National Organization for Women and two groups of militant protesters, Operation Rescue and the Pro-Life Action Network. The ruling does not affect ordinary criminal charges such as assault or trespassing that have been used against demonstrators who block the entrances to these medical facilities.


However, it knocks down the national restraining order that abortion rights leaders had fought for since 1986. This order, handed down by a federal judge in Chicago, had put militant protesters on notice that they were subject to arrest if they moved from city to city and used threats, force or violence against those coming to and leaving abortion facilities.

NOW’s President Kim Gandy called the ruling a “shocking” victory for violence and “a banner day for criminal kingpins. Tony Soprano would love this decision. It says you can shut down someone’s business so long as you don’t take possession of the property.”

Leaders of the antiabortion movement celebrated the decision as a vindication.

“Pro-life activists are not mobsters,” said Sandy Rios, president of Concerned Women for America. “The Supreme Court has set the record straight on the time-honored tradition of the right to protest.


“After the disgrace of being labeled a racketeer, Joe Scheidler, fearless champion of he unborn, has finally been vindicated,” she added.

Scheidler was the leader of the Pro-Life Action League. He was a target of the civil suit filed by NOW lawyers because they believed he was behind the campaign of arsons and other damaging attacks on clinics in the Midwest.

Still, the impact of Wednesday’s ruling was muted by a crucial intervening event. In 1994, the same year the Supreme Court cleared NOW’s racketeering suit to go to trial in Chicago, Congress passed a federal law to protect abortion clinics.

The measure was passed when Democrats controlled the House and Senate and Bill Clinton was president. The law makes it a federal crime to use “force or ... physical obstruction” to prevent patients or medical personnel from entering or leaving a facility that performs abortion. The measure can be enforced by prosecutors or by lawyers bringing civil suits.


The Freedom of Access to Clinic Entrances Act, combined with the nationwide order in the NOW case, are credited with tamping down protest activity near these clinics.

However, abortion-rights lawyers said they did not believe the 1994 law could be used to win a nationwide order similar to the one overturned Wednesday.

Using the anti-racketeering law, “we were able to go after the organizers, not just the people on the ground,” said Sharyn Tejani, a lawyer for the Feminist Majority Foundation. “This means we are going to have to ... look for other legal remedies.”

The ruling comes as a surprise because the Supreme Court in an unanimous decision cleared the way nine years ago for NOW’s lawyers to bring their racketeering suit against Scheidler and Operation Rescue.


After NOW sued in 1986, its lawyers spent years skirmishing over the law and gathering information on violent incidents. It suffered a major setback when the U.S. Court of Appeals in Chicago threw out the lawsuit and said the racketeering law applied only to criminals and thugs who were seeking money. Because the abortion foes acted out of moral concerns, they could not be sued for racketeering, even if they used for force and violence, the appeals court said.

Chief Justice William H. Rehnquist disagreed and said the law applied to any pattern of criminal activity, regardless of the reason. A racketeering suit does not depend on an “economic motive,” he said in 1994.

That ruling cleared the case to go before a jury. NOW’s lawyers presented hundreds of examples of force and violence by protesters. At a Los Angeles clinic, a woman who had undergone ovarian surgery was grabbed and hit with a sign. Her incision ruptured, and she had to be rushed to an emergency room. Clinics in Florida, Illinois and other areas suffered break-ins and damage to equipment.

After a seven-week trial, a jury found at least 21 violations of the federal extortion and racketeering laws because force and violence had been used to shut down legitimate businesses. The jury awarded damages of $85,000 to two women’s health organizations. Under the racketeering act, known as RICO, damages are tripled, to $255,000 in this case.


The federal judge then imposed the national order to prevent future violations, and the U.S. Court of Appeals in Chicago upheld the verdict.

When Operation Rescue’s lawyers appealed last year, the Supreme Court agreed to reconsider use of the racketeering law.

In Scheidler vs. NOW, Rehnquist said Wednesday that the anti-extortion and racketeering laws apply only when force is used to “obtain property.” Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas joined Rehnquist’s opinion. Justices Ruth Bader Ginsburg and Stephen G. Breyer concurred.

Dissenting alone, Justice John Paul Stevens faulted his colleagues for weakening the anti-extortion law and clearing the way for “a class of professional criminals” to use force and intimidation against other businesses.