The right call
With its two new appointees, the U.S. Supreme Court may yet commence an assault on abortion rights. But Tuesday’s ruling in Scheidler v. National Organization for Women was no example of it. If anything, the decision was a win for free speech and the rule of law, not a loss for reproductive rights.
Anyone who gasped in fear that the court had dealt a setback to the pro-choice cause will be relieved to read Justice Stephen Breyer’s opinion – and those who cheered will be disheartened. The decision gives no hint of opinion about the merits of abortion or its availability. No shred of attitude for or against the zeal of anti-abortion protesters. No opening cannon in the battle to overturn Roe v. Wade.
There is merely a close parsing of the words that appear in federal laws that have been used to curb anti-abortion protests. An English teacher would be proud.
In 1986, hounded by demonstrators whose methods were loud, rude and potentially violent, certain abortion clinics and their defenders went to court claiming the protest actions violated the Hobbs Act and the Racketeer Influenced and Corrupt Organizations (RICO) Act. They won a nationwide injunction against such behavior, based on an argument that excessive behavior in the picket lines outside abortion clinics was on a par with organized crime.
It’s no retreat from the abortion rights cause to acknowledge, as Breyer did, that the facts at play didn’t meet the Hobbs Act’s criteria. If a woman’s right to choose were in danger here, Breyer would never have won unanimous consent from his colleagues. (Only Justice Samuel Alito, who hadn’t joined the court when the case was argued, was not a member of the 8-0 decision.)
For more than 19 years, those who want to keep anti-abortion demonstrations from getting out of hand have used a lower court’s ruling that actual or threatened violence, such as picketers might demonstrate outside abortion clinics, violated federal racketeering laws. Tuesday’s ruling finally restored common sense – that even if interfering with another’s right to an abortion is despicable, it’s not robbery or extortion. And if it’s neither of those things, the Hobbs and RICO acts don’t apply.
Like all Americans, abortion foes have the right to gather and protest, within reasonable limits. And if they overdo it and resort to thuggery, state laws should deal with it. Just in case that isn’t adequate, Congress passed the Free Access to Clinic Entrances Act in 1994.
But, as the Supreme Court has now affirmed, federal laws intended to rein in racketeers are not the tool for dealing with sidewalk confrontations between pro-choice and pro-life antagonists.
That development should be embraced by anyone who values Americans’ right to political protest. If a law can be stretched beyond its intent to protect a cause we believe in, sure enough it will be used to shield one we abhor.