I've been on the front lines of the abortion war. I know how ugly it gets when escorts have to crowd around a patient so she doesn't have to endure the pictures of mangled fetuses thrust in her face or the "Mommy don't kill me" taunts broadcast through a bullhorn.
I have locked arms with fellow pro-choice activists as dozens of abortion foes crawled on their hands and knees toward the clinic door. I have even had an elderly scarecrow of a man, with "God is Pro-Life" tattooed across his knuckles, wrapped around my legs, reciting Scripture and trying to crawl past me. He didn't get past. He got arrested.
All the crawlers got arrested, as they should have. They had unlawfully trespassed, and committed simple battery against me and other clinic defenders. Their protests crossed the line from peaceable to lawless.
Even so, I am not willing to take the step the National Organization for Women has, and sacrifice the First Amendment to silence these abortion opponents.
On Monday, NOW won a 12-year court fight to try to bankrupt leaders of the anti-abortion movement with the use of a vague and overbroad federal anti-racketeering law. NOW's win is not only the Constitution's loss, but it is a loss for every activist group challenging the status quo.
The federal jury in Chicago found Operation Rescue, the Pro-Life Action League and three anti-abortion activists guilty of violating RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970. The jury found that the defendants had engaged in 21 acts of extortion that qualified them as part of a criminal enterprise, and awarded two abortion clinics $85,926 in damages, which under the law will be tripled. The case was a class action suit, which gives more than 900 clinics across the country the opportunity to file for damages as well.
Yes, the executive director of the Pro-Life Action League, Joseph Scheidler, violated the law by trespassing on clinic property and dogging clinic workers. He used whatever non-violent tactics were at his disposal in trying to close down a concern that, to his mind, was in the business of infanticide.
But how different is that from the African-Americans in the 1960s who defied segregationist Jim Crow laws in the South by illegally parking themselves at whites-only lunch counters? Or Greenpeace activists who took it upon themselves to plug industrial pipes that were spewing toxic waste into the oceans? Or General Motors workers in 1937 who staged a "sit-down strike" occupying the plant so their union would be recognized?
All were acts of conscience, of civil disobedience, and all were illegal.
But now, not only do the civilly disobedient face jail but financial ruin as well, and so do the organizations associated with them.
RICO was enacted to bankrupt the Mafia, not to bring down philosophical opponents. The RICO law simply should not be applied to groups with a non-profitmaking, issue advocacy motive. It's too potently punitive and, with its loosely drawn definition of a criminal enterprise, too easily fits political advocacy organizations whose leaders and followers engage in occasional law violations in furtherance of a cause. Moreover, the judgment calls that have to be made to define political acts and speech as "extortionist" crimes skirt too close to the First Amendment.
But, in 1994, the U.S. Supreme Court said the law as written by Congress is not limited to criminal enterprises with an economic motive and allowed NOW's suit to progress to a jury.
At trial, NOW alleged that the activists were part of a nationwide conspiracy to close down abortion clinics through a pattern of racketeering activity including extortion. Did members of Operation Rescue and others engage in a pattern of conduct designed to close abortion clinics? Of course, that was their raison d'etre. But is that "racketeering" activity? NOW claimed the illegal actions were the extortionist use of fear, intimidation, threats and violence to induce clinic employees, doctors and patients to stay clear of the clinics, thereby injuring the abortion clinics' business interests.
An abortion protest is intended to be intimidating. Yelling, screaming and crowding are all part of the campaign to persuade _ to make having an abortion too anxiety-producing to do. It's no different than a labor picket, staffed with striking workers trying to keep replacement laborers from taking their jobs.
Imagine the damage a suit like this would have done to the civil rights movement had the NAACP been successfully sued under RICO when some of its leaders used intimidation and threats of violence (and even allegedly actual violence) in enforcing its black boycotts of racist stores in Mississippi. At the time, the Claiborne Hardware company tried to sue for malicious interference with its business but was turned away by the U.S. Supreme Court, because the boycott, despite its violent fringes, was deemed constitutionally protected.
NOW's case seems to go directly contrary to that ruling.
With this win, NOW and other pro-choice groups have the tool they need to bankrupt their most ardent and indefatigable anti-abortion rivals. And the drug companies have the tool they need to bankrupt the AIDS activist group ACT-UP. And the fur coat designers have the tool they need to bankrupt People for the Ethical Treatment of Animals. And the corporate farms have the tool they need to bankrupt the United Farmworkers Union.
NOW has fashioned quite a sharp tool. It should be careful it doesn't cut itself.