RICO Conviction of Anti-Abortion Zealot is Bad News

by Steve Chapman

A federal civil jury in Chicago ruled that Scheidler and two associates, along with his organization and Operation Rescue, engaged in a conspiracy to commit extortion and threats of violence against those operating and patronizing abortion clinics, in violation of the federal Racketeer-Influenced and Corrupt Organizations law (RICO). They were held liable for nearly $86,000 in damages, which under RICO are customarily tripled. They also can expect to be assessed for the legal fees of the other side, which includes the National Organization for Women and two abortion clinics.

Scheidler has always said that since he can't pay, the award doesn't matter. "Triple nothing is nothing," he says. NOW attorney Fay Clayton acknowledges that her client may be unable to collect. But she believes the victory was worthwhile anyway, because "it sends a loud message."

Her opponents agree. The question is what message will be delivered: that someone who participates in a violent, disruptive protest is at risk? Or that someone involved in any protest is at risk? Those who organize political demonstrations about deeply emotional issues can't guarantee the event will proceed in total conformity to every applicable law. But failure could expose the organizers and the participants to vast monetary damages.

Many people who believe in animal rights or more AIDS funding or a clean environment may be willing to spend a night in jail occasionally to advance their case. They may not, however, be prepared to risk losing their homes, their cars or their savings.

Says Blakey, "Perfect demonstrations aren't possible. Somebody will step on an blade of grass, shouting will turn to pushing, a rock will get thrown through a window." If anyone associated with a protest group is accused of committing just two illegal acts over the course of 10 years, it can be sued under RICO. Organizers and demonstrators who did nothing wrong may find themselves liable for offenses by others that they neither encouraged nor condoned.

It's not enough to behave in such a way that you could win a court suit. RICO establishes an incentive to behave in such a way that you can't be sued, period -- since a lawsuit can be a bankrupting experience, even if you win. The open-ended threat of being hauled into court and made to prove that you didn't conspire with others to break the law may be enough to convince many people not to exercise their First Amendment rights. Blakey says of those who brought the suit, "They don't want legitimate protests. They want no protests."

Abortion rights advocates like to tie Scheidler and his organization to bombings and arson, but this case was not about that sort of lethal force. Among the acts of "violence" and "extortion" cited by Clayton were such behavior as congregating in large numbers in front of entrances, blocking driveways with cars and putting glue in door locks.

Lawbreaking, even minor lawbreaking, warrants punishment. But using RICO to penalize people for behavior like this is akin to using artillery to clear a vacant lot: The lot will be cleared, but much needless damage will also be done. If this law had been around in the 1960s, it might have used against Martin Luther King Jr. or anti-war demonstrators, who often engaged in disruptive civil disobedience intended to rouse public sympathy.

Assuring access to abortion clinics has sometimes been a problem, but other laws are perfectly capable of dealing with it. And you may have noticed that Operation Rescue-style blockades have disappeared. That's because in 1994, Congress passed the Freedom of Access to Clinic Entrances Act, which makes it a federal crime to use force or threats to intimidate abortion clinic workers or patients, and the law has served its purpose.

RICO may advance the same goal but only by telling abortion opponents -- and other activist groups -- that they could pay a very high price for participating in demonstrations that are supposed to be protected by the Constitution. If that's the case, they're not the only ones who will lose.