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.