Ruling on an issue that had divided progressive groups for the better part of two decades, the Supreme Court on Tuesday issued an 8-0 decision that federal extortion and racketeering laws cannot be used to ban demonstrations outside abortion clinics.
The decision is being portrayed as a victory for anti-choice groups such as Operation Rescue and the Pro-Life Action Network. That is surely the case, as the court has conclusively rejected arguments for an on-and-off nationwide injunction that had been used to prevent anti-abortion groups from protesting outside clinics in a manner that, by all reasonable evidence, was intended to prevent the clinics from operating.
Effectively, the high court has rejected arguments, formulated by lawyers for the National Organization for Women in the 1980s, that civil provisions of the 1970 Racketeer-Influenced and Corrupt Organizations Act, which was adopted as a tool to combat organized crime, and the Hobbs Act, an older anti-extortion measure, could be used to bar protests by groups that clearly intend to prevent clinics from operating.
But from the beginning of the long fight over clinic protests, some progressive groups have argued that, even if the anti-choice organizations involved were noxious players, broader issues of freedom of speech and freedom of assembly were also in play.
It is for that reason that the AFL-CIO, which filed a friend-of-the-court brief on behalf of the position of the anti-choice groups, will see itself as having secured a sort of victory with this particular court ruling. While they disagree officially, and often passionately, with the anti-choice groups on fights over court nominations and other issues, labor organizations weighed in on the side of the clinic protesters because of honest fears that lawsuits and injunctions based on a broad interpretation of racketeering and extortion laws could be used to undermine strikes, anti-sweatshop protests and similar agitations on behalf of social and economic justice that target businesses.
Bob Blakey, a former Congressional aide who drafted the RICO Act has argued that its use in litigation against anti-choice groups "will unconstitutionally chill social protest." Many anti-choice activists have cynically echoed Blakey's line, while conveniently failing to stand up for the rights of labor, environmental and anti-war groups to engage in protests of the sort they defend.
NOW President Kim Gandy countered Blakey's argument by writing that, "As a national officer of NOW, I know that the National Organization for Women has a strong interest in preserving free expression. As former counsel in this case, I know that we have been scrupulous in addressing issues of violence, not speech or peaceful demonstrations.
"NOW's marches, informational pickets and sidewalk demonstrations are effective and legal. Anti-abortion activists have the same right to distribute pamphlets and display signs and make their voices heard. But no group has a right to use violence or threats of violence to force others to give up their constitutional rights.
"Racketeering is not free speech. Marching in front of a clinic, carrying signs and distributing literature is free speech. When that picket becomes a brutal blockade . . . when those signs are used as weapons . . . when prayers change to overt threats . . . then the "protest" has crossed the line into violence and lawlessness, and has left the First Amendment behind."
But that line of reasoning did not convince the AFL-CIO, which historically has eschewed taking an official stand on abortion rights but has worked closely with pro-choice organizations such as Emily's List in recent years, and AFL affiliate unions and groups -- some of which, such as the Coalition or Labor Union Women, are ardently pro-choice. The AFL's lawyers argued against the broad interpretation of racketeering and extortion laws, on the grounds that unions could be targeted by similar civil suits in efforts by corporations to restrict pickets by labor unions.
Justice Stephen Breyer picked up on the AFL's arguments. Noting that there is a specific federal law that bars the use of force, threats or blockades to interfere with access to reproductive health care -- the 1994 Freedom of Access to Clinic Entrances Act -- the justice suggested at one point during the long deliberations on these issues that allowing the use of racketeering and extortion laws to restrict protests would "transform virtually every threat of violence anywhere in the United States into a serious federal crime."
To Breyer's view, that would "make a major change in (how) threats of violence (are handled) on the picket line."
The Supreme Court's ruling will not eliminate differences of opinion on where exactly protests enter into the space where they have "left the First Amendment behind." But the unanimous ruling would appear to put an end to the practical legal debate, as the broad interpretation of these laws has been broadly rejected.
In matters of this kind, it is usually best to err on the side of dissent and dissenters. NOW made a credible argument for an exception, but the AFL and other groups made what many considered toi be an equally credible argument that a good exception could become a bad rule. The legal fight, for all intents and purposes, is now done. Unfortunately, with the recent appointments of John Roberts and Samuel Alito to the high court and with the move by South Dakota legislators to effectively ban abortion in that state, the national political fight over reproductive rights is heating up. And it is certainly reasonable to suggest that labor organizations, which split with pro-choice groups in the battle over clinic access, citing concerns about protecting the right to protest, have a greater responsibility than ever to work with those pro-choice groups to defend another endangered right -- that of women to make the most fundamental of all choices.