An eight-member majority of the U.S. Supreme Court, including several justices who support the right to abortion, ruled last week that pro-life protesters who try to shut down abortion clinics are not "racketeers" under federal law. It's the right decision.
The ruling takes away a five-year-old legal victory for an alliance of abortion providers and pro-choice organizations that troubled even fervent supporters of abortion rights, including this editorial page.
That was because the legal theory under which the anti-abortion activists were ordered to pay triple damages was that their protests at clinics constituted racketeering under the 1970 Racketeer Influenced and Corrupt Organizations Act, or RICO.
As we observed in an editorial in 1998, demonstrators for all sorts of causes, not just the anti-abortion movement, could have their speech chilled if RICO -- a law enacted to deal with organized crime and corrupt business enterprises -- were used against protesters.
Indeed, the extension of RICO to anti-abortion protests appalled the lawyer who drafted RICO for Congress,G. Robert Blakey. After a jury in Chicago determined that the Pro-Life Action Network had violated RICO, Mr. Blakey, a Notre Dame law professor, warned that "if you look at this case and say it's about abortion, you're missing the point. Everybody who loves the First Amendment has got to sleep uneasily tonight."
Thanks to the Supreme Court, those who would engage in public protests can indeed sleep easier. The justices rejected both the notion that RICO applied and also disputed the jury's finding that the pro-life activists had violated federal and state extortion laws.
In a RICO case, a pattern of racketeering must include violations of other laws, and the abortion clinics and their allies had argued that in impeding access to abortion clinics protesters were "obtaining the property of another" by force, threat or force or violence, the legal definition of extortion. Not so, wrote Chief Justice William Rehnquist for the court.
The importance of this decision -- and not just for the anti-abortion movement -- is that a proliferation of RICO lawsuits against protesters could deny them the financial resources necessary to spread their message even in legal ways. That is not good for free speech or public debate.
Pro-choice groups expressed disappointment at the court's decision, but it is wrong to regard the ruling as a blank check for violence or intimidation at abortion clinics.
As Justice Ruth Bader Ginsburg pointed out in a concurring opinion, the ruling does not jeopardize other laws that make it a crime to obstruct access to abortion clinics or harass women seeking abortions at close quarters. Still on the books, for example, is the 1994 Freedom of Access to Clinic Entrances, which authorized both criminal and civil legal action against people who block access to abortion clinics.
As with so many political controversies, the aim in dealing with abortion protesters should be to punish criminal action without chilling protected political speech, even the intemperate and insulting speech that has become the trademark of a part of the pro-life movement. The Supreme Court was right to rule that treating protesters as racketeers upset that delicate balance.
E-mail this story 
