In an 8-0 decision written by Justice Breyer, the Supreme Court today held that Congress did not intend federal anti-extortion and racketeering laws to apply to physical violence and other unlawful, disruptive tactics used by opponents of abortion. (Justice Alito, who was not yet on the Court when it was argued, took no part in the consideration or decision of the case.) This decision, in Scheidler v. NOW, is the final one in litigation stretching back to 1986, when the National Organization for Women (NOW) sought a nationwide injunction, under federal racketeering laws, to stop abortion opponents from using violent and obstructive tactics around women’s health clinics. At that time, there was no federal law specifically targeting clinic violence, and the nationwide injunction NOW obtained helped reduce this conduct. In rejecting NOW’s interpretation of the statute, the Court today noted that, in 1994, Congress enacted a specific statute aimed directly at the type of clinic violence and other conduct at issue in this litigation: the Freedom of Access to Clinic Entrances Act (FACE). In fact, what the Court did not mention is that since the passage of FACE the violence and blockades at women’s health clinics have largely (though not completely) subsided – demonstrating that statutory protection against this conduct has been critical to ensuring that women can exercise their constitutional right to choose in safety.
Today’s decision was a technical one, focused on construing the anti-extortion law by closely considering the language of the statute and its legislative history. The Court did not consider the constitutionality of FACE – which has been upheld by all the lower courts to review it in cases challenging it under the First Amendment and Commerce Clause, but which has never been considered by the Supreme Court. Nor did it address the constitutional right to choose, and today’s decision – in which all members of the Court (except Alito) joined, regardless of their views on Roe v. Wade – can hardly be seen as any kind of forecast of where the Court will be on that issue. That fundamental issue, however, will be before the Court in its next term.
