Unfortunately, recent jurisprudence has sometimes stood the rest of the constitution on its head in order to protect absolute access to abortions under virtually any circumstance. These usurpations have even extended to infringements upon the First Amendment. For example, in Hill v. Colorado in 2000, the Supreme Court ruled constitutional a 1993 Colorado law making it illegal for anyone to approach within eight feet of someone in the vicinity of medical facilities “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person…” It is, therefore, a salutary relief that in Scheidler v. NOW the high court refused to allow the extension of the Racketeer Influenced and Corrupt Organizations Act (RICO) to anti-abortion protestors by a decisive 8-1 margin.
RICO was written to prosecute organized crime syndicates that were involved in extortion. In 1989, the National Organization fpr Women (NOW) sued Joseph Scheidler of the Pro-Life Action League who was offering seminars on abortion protest strategies. Some of these strategies involved nonviolent civil disobedience techniques that blocked access to abortion clinics. Typically, similar civil disobedience results in arrests by police while protestors sing protest songs. In this case, NOW (and sadly US Solicitor General Ted Olsen) argued that the fact that the clinics were being deprived of business constituted extortion. The lower courts agreed and the triple damages imposed by the RICO law financially devastated Scheidler and his organization. The protests were effectively curtailed.
This broad interpretation of the law endangered protests of other kinds. During the oral arguments before the Court, it was suggested that such an interpretation of RICO could have been used to cripple the 1960s civil rights movement if lunch counter sit-ins closed businesses that refused service to African-Americans. People for the Ethical Treatment of Animals (PETA) a left-of-center animal rights extremist group sided with Scheidler fearing application of RICO to their protests in front of fur stores. Given the recent rise in anti-war protests, some of the Left have been more than a little nervous about the precedent the case could set. Even the American Civil Liberties Union concedes that “use of civil RICO as that remedy … poses its own problems.” No doubt these concerns contributed to the lopsided 8-1 decision.
It is prudent for the Supreme Court to decide each case on the narrowest possible grounds. This allows the court some maneuvering room in the face of new and unexpected cases. The Supreme Court noted that the RICO law was predicated on “extortion” as defined by the 1951 Hobbs Act. In this case, even if abortion clinics were effectively closed, the organization of protests did not constitute extortion since the protestors did not “receive something of value … they could exercise, transfer, or sell.” Scheidler and his group had not engaged in extortion by the defintion established in United States v. Nardello.
The Court left open the boundary between future laws and the First Amendment. For example, if a future Congress made it illegal, with severe penalties, to engage in nonviolent civil disobedience would such a law infringe on the First Amendment? Do we not want a country where nonviolent civil disobedience is dealt with in conventional ways with simple arrests and proportional penalties or do we want a country where such dissent is crushed with harsh and brutal sanctions? At what point do such penalties become so severe as to have chilling effect of legitimate protest? We would all be better off if the government chooses not to test such boundaries.