november 30, 2005
ACLJ Takes Abortion Case to Supreme Court Today
“Now, it is time to finally bring an end to this marathon litigation. We’re hopeful that the high court will conclude that it meant what it said a couple of years ago when it decided this case.” - Jay Sekulow
Now in its twentieth year of contentious litigation, this national class action lawsuit by NOW and abortion providers involving the controversial use of federal antitrust, racketeering (RICO), and extortion laws against abortion protesters will be argued today for the third time before the U.S. Supreme Court.
Just days before the Supreme Court was to hear arguments in this case, the American Center for Law and Justice (ACLJ) filed a reply brief asking the Justices to put a final end to the nearly 20-year-old racketeering suit brought by the National Organization for Women (NOW) and two abortion businesses against Joe Scheidler, Operation Rescue, and three other pro-life defendants.
With oral arguments scheduled to take place today at the high court, the ACLJ is representing Operation Rescue in the case. At issue: a federal appeals court decision that purported to reopen the case despite the Supreme Court's complete rejection of NOW's lawsuit in 2003.
“We are hopeful that the high court will reinforce what it said two years ago and finally bring this case to a conclusion,” said Jay Sekulow, Chief Counsel of the ACLJ, who serves as Counsel of Record for Operation Rescue in the case.
“In a clear decision in 2003, the Supreme Court correctly concluded that the use of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute—a law designed to combat drug dealers and organized crime—was wrongly used against the pro-life movement.”
The ACLJ reply brief, filed on behalf of Operation Rescue, contends that there are three independent reasons why NOW’s RICO suit must fail.
- First, the Supreme Court said so in 2003.
- Second, the supposedly remaining claim, namely, the crime of “violence” that “affects commerce,” simply does not exist under the relevant federal statute (the Hobbs Act, which prohibits robbery and extortion).
- Third, the only judicial relief NOW seeks—an injunction—is not available to private parties under RICO. The ACLJ brief concludes: “It is time for this marathon case to end.”
Background
The case has been litigated since 1986, when NOW filed a lawsuit against various pro-life individuals and organizations. In 2003, the Supreme Court seemingly ended the RICO case by a vote of 8-to-1, ruling that merely obstructing the operations of a business, without obtaining any money or other property, was not “extortion.”
The high court concluded that “all of the predicate acts [under RICO] must be reversed,” that “the judgment that [defendants] violated RICO must also be reversed,” and that “the injunction . . . must necessarily be vacated.” When the case returned to the 7th Circuit, ACLJ attorneys asked that the case be sent back to the district court with instructions to enter judgment in favor of the defendants. NOW, however, argued that, despite the Supreme Court ruling, the RICO case was still alive and the injunction should remain in effect. The appeals court agreed that the Supreme Court had not finished the case, and that NOW could pursue the matter further in the trial court.
The 2003 decision was widely applauded as a win for citizen protest. Nat Hentoff hailed it as "one of the greatest victories for the First Amendment . . . in our history."
But many observers were surprised when the same 7th Circuit panel held in 2004, on remand from the Supreme Court, that four of the 121 RICO predicate acts listed on the jury verdict form were unaffected by the Supreme Court's 2003 ruling. The district court was told to decide if those four acts alone would support the nationwide RICO decree. On denial of panel and en banc rehearing (over three dissents), the panel modified its earlier ruling, barring any new evidence or damage award and specifying that any new RICO injunction be more "narrowly tailored."
The 7th Circuit panel's "third way" reading of the Hobbs Act would make it a federal felony, punishable by up to 20 years in the federal penitentiary, to commit any "act or threat of physical violence to persons or property" so as to affect commerce "in any way . . . or degree." If NOW and the providers were to prevail, this would federalize vast expanses of state and local criminal law and would bring about a huge expansion of RICO's already broad reach – especially against protesters and protest groups.
On this appeal, the petitioners are once again endorsed by a bipartisan host of supporters. The AFL-CIO has taken a long jump onto the protesters' bandwagon, as the "third way" reading of the Hobbs Act would spell problems for organized labor. Other supporters include Martin Sheen, Fr. Dan Berrigan, Sr. Helen Prejean, Howard Zinn, Kathy Kelly, Abe Bonowitz, PETA, Sojourners, et al and several major states fearing an onslaught of damages litigation (Alabama, Michigan, Ohio, Delaware, et al).
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