Last week, after a 12-year path through the courts, a class-action lawsuit against anti-abortion activists came to trial in U.S. District Court in Chicago. It charges them with using threats and violence in a national conspiracy to close abortion clinics and deny women their services. The case was a poor application of the law when it began. That it has proceeded so far shows the great need to revise the law.
Two federal courts said the suit was a misuse of the federal Racketeer Influenced and Corrupt Organizations act, better known as RICO, which was designed as a weapon against organized crime, not political activists. They said that abortion protests, even when they are disruptive or involve such violations as trespassing, lack the economic motive that RICO required. But a unanimous Supreme Court disagreed, so the case moved forward.
Demonstrations at abortion clinics were once so numerous and troublesome that Congress passed a law designed to guarantee access to these facilities by restricting protesters. By all indications, that has done much to minimize interference while preserving the right of anti-abortion groups and individuals to express their views. State laws can also be used, and stiffened when necessary, to punish and deter civil disobedience and violence.
So the point of the lawsuit filed by the National Organization for Women is a bit hard to see. The main value of a RICO judgment is that it would allow a nationwide injunction against the defendants, which include Operation Rescue and Chicagoan Joseph Scheidler. But pro-choice experts say that would be little use to small clinics battling local demonstrators. RICO also provides for triple damages, which may be an academic exercise concerning these underfunded defendants but could scare other critics.
The danger is that RICO suits will deter not only violence and lawbreaking but what amounts to legitimate, though perhaps vexing, political protest. Had RICO been around in the 1960s, it might have been deployed by segregationists to curb demonstrations and boycotts by civil rights organizations. The heavy penalties that RICO allows can be a powerful inducement to law-abiding citizens not to participate in demonstrations for fear that some of their fellow protesters will break the law.
There are better ways to assure women access to abortion, which is their right, while also preserving the freedom of critics to object. It’s time Congress restored RICO to its original purpose.
