Tonight you'll hear on the news that Scheidler v. NOW is a seminal abortion case. You'll see protesters with signs, and chanting, and even a little shoving. You'll see footage of pro-life activist Joe Scheidler and his colleagues asking why people who "kill babies and maim women" are innocents while abortion protesters are persecuted as "racketeers" and bankrupted in court. You'll see attorney Fay Clayton, and NOW President Kim Gandy on the steps of the high court, insisting that women seeking abortions were physically brutalized by pro-life protesters in the 1980s. You may even get to hear Operation Rescue protesters, heckling with such pithy lines as: "Babykiller!" and "Liar!" (One of my great frustrations about this case is that, with 30 years to invent better jeers, both sides of this debate keep shouting the same banal sound bites.) My eternal gratitude to the first Fraygrant who comes up with something more original than, "What about the dead babies" or, "It's my body."
If you were to base your opinion of today's case on what you see on the news tonight, you would come away thinking that the high court heard one hell of an abortion case today and that the future of abortion stands in the balance as it hasn't since the court decided Roe v. Wade in 1973. Actually, what the court heard today was rather a tedious little case about statutory interpretation. It may have real consequences for free speech in this country but will impact abortion law not at all. It's a testament to how utterly bonkers both sides in this debate have become, that they alone can't see that.
In the mid-'80s, Operation Rescue members joined with other pro-life activists to create the Pro-Life Action Network, or PLAN, led by Joe Scheidler, Randall Terry, Timothy Murphy, and others. PLAN sought to aggressively interfere with clinic workers and abortion-seekers through "missions," ranging from prayer vigils and leafleting to violent attacks or threats of violence against individual abortion clinics. It is undisputed in this case that in at least some incidents, clinic staff and patients were violently assaulted (pinned against a glass wall until it broke, etc.), although PLAN's attorney, Roy T. Englert, seems to take the position that since there were only four truly violent incidents (as opposed to 30, alleged by NOW), this violence is a-OK.
NOW, adopting a new strategy in 1986, filed suit against PLAN for violating the federal racketeering statute—the Racketeer Influenced and Corrupt Organizations Act. RICO provides better penalties than garden-variety trespass statutes. NOW's theory was that PLAN's missions represented a pattern of "extortion" that differs very little from a Tony Soprano-type shakedown, except with less leather jackets. NOW lost in both the trial court and at the 7th Circuit Court of Appeals but prevailed in the Supreme Court in 1994, when the court unanimously held in NOW v. Scheidler that it was not necessary under RICO that the "extortionists" in question benefit financially from their racketeering.
So the case went back to the trial court in Chicago, where a jury found for NOW and a judge awarded $257,780 in damages against PLAN and issued a permanent national injunction prohibiting PLAN from trespassing on or committing violence at abortion clinics. PLAN appealed to the 7th Circuit and lost, then appealed to the Supreme Court, where we find ourselves today. The only issues before the court: Does RICO allow private parties to seek injunctive relief? And can extortion—which requires that the racketeer in question "obtain property" through the "wrongful" use of actual or threatened force—be used to prosecute political protesters?
Englert opens on this point: Since when is stopping people from accessing abortion clinics "obtaining property" under the law? Were the civil rights boycotts of racist white merchants extortion? When Carry Nation trashed saloons with hammers, was that extortion?
Justice John Paul Stevens, presiding again today because Chief Justice William H. Rehnquist is benched while recovering from leg surgery, points out that those people weren't charged with extortion. Justice Sandra Day O'Connor asks, "Aren't we talking about acts that constitute criminal offenses?"
Englert replies—so cheerfully that it makes my teeth hurt—"Oh yes! Yes they were trespassing!" O'Connor points out that it was more than trespassing; in some cases, the PLAN missions involved assault. Englert agrees, again cheerfully. Maybe it was assault, he tells her, but it was not extortion.
Englert goes on to explain that there is no "property" being "obtained" in these cases, so extortion cannot be found. Justice David Souter suggests that if strangers take control of your property, they have "obtained" it. "No," says Englert, "control is not property. Property is property."
Stevens pulls a Socratic shaming tactic out from his law school years, quizzing Englert on "an 1890 New York case involving work stoppage." When counsel admits that the case is not coming to mind, Stevens cites the case name. Englert again admits that he's blanking on the reference. People shift uneasily.
This also has nothing to do with the future of abortion.
Solicitor General Ted Olson, who filed a brief that supports NOW's position only somewhat more than PLAN's, has 10 minutes to argue in favor of stretching the racketeering statutes past any plausible meaning. This is perhaps no surprise since his bosses would like nothing better than to use RICO (and FISA, and Bahamian maritime law) to prosecute any suspect in the war on terror who can't be prosecuted under normal criminal statutes.
Justice Anthony Kennedy wonders whether any time any protester trespasses for any reason, he's committed a Hobbs Act violation. Olson responds that if the aim is to shut down a clinic, then the protester has "obtained control" of that property.
Justice Antonin Scalia wonders whether this construction of the word "obtained" doesn't "sail too close to the wind of First Amendment rights." And Olson, sailing too close to the wind of Scalia, tries to argue that even in civil rights cases, if the aim was to shut down a business through protest, then yes, there was extortion. This response gives at least an inkling of why organizations such as People for the Ethical Treatment of Animals have sided with the Operation Rescue crowd in this case. If you can't throw a little blood or toss a few pointy sledge hammers, what good is a protest anyhow?
The final attorney is NOW's representative, Fay Clayton, who is in the unenviable position of arguing against what looks like free political speech. She and Justice Scalia do a few rounds on whether the RICO statute authorizes a private party to seek an injunction, and let me just note that I'd rather be pinned against a glass wall by Operation Rescue members than have to debate statutory interpretation with Antonin Scalia. Still, when Justice Stephen Breyer suggests that perhaps this issue was left ambiguous in the statute due to congressional "mistake," and Clayton responds that "Even if it was a mistake, this is a bill passed by Congress and signed by the president. This is the bill we interpret," Scalia jumps in to agree. "I'm with you on that!" he exclaims.
Clayton laughs. "I know you are, Justice Scalia."
Even the justices who seem most supportive of Clayton's case appear skeptical of her claim that the property being taken here includes clinic workers, clinic operators, and visitors to the clinic. Justice Breyer is incredulous. "A woman's right to seek services is property?" he asks. "She's not just going shopping," replies Clayton. "She has an appointment."
Clayton argues that there is a clear line demarking protest and seizing property: "If my clients at NOW went into the Augusta Golf Course and started tearing up the green, that's extortion." Justice Ruth Bader Ginsburg tries to bring up Carry Nation again, but Scalia interrupts to smirk, "Carry Nation, that notorious extortionist."
Souter tries to draw a different principled distinction between obtaining property and protest: The civil-rights protesters boycotting lunch counters didn't seek to close businesses. They sought to change them. PLAN protesters try to close down clinics.
Outside there's lots of terrible roaring and gnashing of terrible teeth (and hurling of tired insults), but all this has nothing to do with anyone's right to choose, unless the right at issue is to choose to protest violently, which as I've suggested once before strikes me as thuggery rather than protected political speech.
I will take just one more second to note, however, that the next time I pronounce a term "the lamest ever" or opine on the chief justice's likelihood of living injury-free for the next 20 years or offer wacked-out, sports-book-type odds on either of the above, kindly take me out back and thrash me. This would not constitute racketeering. It would be for my own good.