The Supreme Court Rejects Racketeering Liability for Anti-Abortion Protesters, But Fails to Admit How Close the Question Actually Was
By MICHAEL C. DORF
|Wednesday, Mar. 05, 2003
In the recent case of Scheidler v. National Organization for Women, the United States Supreme Court ruled by an 8-to-1 margin that a group of violent anti-abortion protestors could not be held civilly liable under the federal Racketeer Influenced and Corrupt Organizations Act (known as "RICO").
The Court's bottom line was plausible: RICO, it suggested, was not intended to address the sort of conduct at issue in the case. Moreover, another federal statute, the 1994 Freedom of Access to Clinic Entrances Act ("FACE") was meant to address exactly this type of behavior.
Yet the Court's reasoning left much to be desired. Writing for the majority, Chief Justice Rehnquist indicated that the result was compelled by the language of RICO. In fact, however, in a different context--interpreting the Endangered Species Act--the Court had rejected this very same sort of linguistic argument (as I will detail below). Why did the argument work in one case, but not another? The Court never addressed that question.
The Court also did not discuss another issue: FACE itself is argued by some lawyers and courts to be unconstitutional. If they are right, there now may be no federal remedy at all for violence by anti-abortion protesters. Granted, state remedies remain available. But state prosecutors and state courts have sometimes been unable or unwilling to address anti-abortion violence on their own. And that means women who seek to exercise their abortion right may ultimately have no remedy at all against such violence.
The Issue in Scheidler
Scheidler first reached the Supreme Court in 1994. Then, the Court held that even though Congress aimed principally at conventional organized crime when it passed RICO, the statute does not require proof that the defendant engaged in the acts alleged in the hope of securing financial gain.
Put another way, although RICO certainly reaches cases of, for instance, extortion of "protection" money from shopkeepers, it does not reach only such cases. Rather, it is written more broadly, to reach many other organized, serial violators of various listed federal laws.
The holding meant that the case against the abortion protesters could continue, even though their violence was motivated not by an economic incentive, but rather by a religious or ideological one. Accordingly, after the 1994 decision, the case was sent back (in legal parlance, "remanded") to the lower courts.
There, plaintiffs won a jury verdict. But the defendants once again appealed the case all the way to the Supreme Court, leading to the recent Scheidler decision.
Defining "Extortion" To Exclude What the Protesters Did
RICO is a complicated statute, but in a nutshell, it permits criminal and civil liability for patterns of breaking particular federal and state laws. The Scheidler defendants threatened and used violence against persons performing and obtaining abortions, with the result that clinics were effectively shut down.
For this conduct to come within RICO, it had to count as "extortion" under the Hobbs Act. That Act, in turn, defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear . . . ."
The defendants said this definition did not fit because they had never "obtain[ed] property" as a result of their actions. To obtain property, they argued, one must both deprive another of property and acquire the property oneself. Even if they destroyed property--such as the ability to perform or obtain abortions, or the businesses that were run out of the clinics--they argued, they did not acquire that property, and thus did not "obtain" it. After all, they didn't take over the clinics and start performing abortions themselves; far from it.
At first, this argument makes common sense--and indeed, its common sense appeal may explain why the decision was 8-1. If a thief steals my car, he obviously has obtained it, but if instead a vandal sets fire to my car, we would not ordinarily says he has obtained it. Obtaining, that is, is generally a two-sided operation.
The majority also pointed out that there is a more precise legal category for what the protesters did: It is "coercion." "Coercion," unlike "extortion," does not require that property be obtained. "Coercion," however, while a crime, is not a crime that is covered by the Hobbs Act, or any of the other criminal statutes to which RICO refers.
Nevertheless, a closer look at a related precedent suggests the case was not as easy as the eight Justices may have believed.
What the Supreme Court Overlooked: Its Own Endangered Species Act Precedent
Prior to Scheidler, the Supreme Court had not addressed the question of what it means to "obtain" property under the Hobbs Act. But it had addressed a related question: what it means to "take" under another federal statute.
The question arose in the 1995 case of Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon. There, the Court construed a provision of the Endangered Species Act that makes it illegal to "take" a member of an endangered or threatened species. The Act further defines "take" to mean "harass, harm, pursue," "wound," or "kill." The case addressed this question: Does destroying the habitat of an endangered or threatened species, counts as the "taking" of a member of that species?
The Court said yes. The term "take," it held, included incidental killings that resulted from habitat destruction. It thus rejected any interpretation of the word "take" that as applied to property (and under the law, non-human animals are considered property) requires that the "taker" acquire the animal or thing. A destroyer is a "taker" too, the Court held.
Then why, in Scheidler, did the court hold that a destroyer is not an "obtainer"? Because "take" and "obtain" are synonyms, the contrast between the two holdings seems, at least, to warrant some justification. But the Court provided no explanation.
The Arguments the Court Might Have Made To Distinguish Sweet Home
Could the Court have persuasively distinguished Sweet Home, if it had addressed the question? The answer may be yes, but the question is still a difficult one.
The Court might have pointed out, to begin with, that the Endangered Species Act and RICO are very different statutes. In Sweet Home, the Court emphasized that the purposes of the Endangered Species Act--to protect and preserve endangered wildlife--would be furthered by a broad reading of "take" that covered not only spotted owls deliberately killed by hunters, but also those that starve to death when logging deprives them of their habitat. In contrast, one might argue that the purpose of RICO--or the Hobbs Act, which contains the "extortion" definition RICO incorporates--would not be as plainly served by a broad definition of "extortion."
But why not? If RICO and the Hobbs Act aim to protect victims, perhaps a broad definition of "extortion" is appropriate. Whether my car is stolen or torched, I'm still out a car. If a criminal has harmed me, what does it matter whether or not he has also managed to help himself by acquiring property (as opposed to by reaping the other rewards, including simple gratification, of the damage he has sown)?
Second, the Court might have pointed out that the words "take" and "obtain" are not precisely the same word. Moreover--and more importantly-- "take," as used in the Endangered Species Act, was expressly defined to include "harm," and in ordinary usage, one can harm something without also acquiring it. In contrast, the Hobbs Act, at issue in Scheidler, does not define "obtain" to include "harm." (However, it may be a mistake to read too much into that omission; after all, the Hobbs Act does not define "obtain" at all.)
Finally, the Court might have pointed to a third distinction. In Sweet Home, the Court was not merely interpreting the Endangered Species Act; it was deciding whether to accept an interpretation the Department of the Interior had already given the Act. And in such cases, the courts give the agency's (here, Interior's) interpretation substantial deference--asking only whether it is a reasonable interpretation of the Act, not whether it is the best interpretation. By contrast, in Scheidler, the Court was called upon to decide for itself the best reading of RICO. It did not have the option of deferring to an agency interpretation.
The Problematic Core of the Court's Decision
Chief Justice Rehnquist's opinion for the Court in Scheidler treats the case as posing mostly linguistic issues--issues that, as I've argued, are more complex than they seem. Meanwhile, a concurrence by Justices Ginsburg and Breyer gets closer to the real basis for the ruling.
The heart of the decision, and the reason it was able to garner widespread support on the Court, I believe, is this: FACE is the statute that Congress enacted to address threats and acts of violence at abortion clinics. In contrast, RICO was designed to deal with organized crime.
Both of these propositions are true. But they do not provide quite as much support for the result in Scheidler as the concurring Justices, or the rest of the majority, may have thought.
The Problem with the Argument Based on FACE
First, by referring to FACE, the concurrence suggests plaintiffs already have a federal remedy; they don't need RICO. But FACE has been challenged in the lower courts as unconstitutional, on the grounds that it violates the First Amendment and that it is outside of Congressional power to regulate interstate commerce, as granted in Article I, Section 8 of the Constitution.
Neither argument is frivolous. Indeed, given recent trends, there remains a distinct possibility that if the issue reaches the Court, five Justices will accept the Commerce Clause argument and strike down FACE.
In that event, there will be no federal remedy for abortion protesters' organized violence, after all--and plaintiffs will urgently need RICO. But it will be too late: Scheidler has already forbidden them from relying upon it.
The Problem with the Argument Based on Congress's Intent in Passing RICO
Second, by noting accurately that RICO was meant to deal with organized crime, the concurrence implies that RICO ought not to be stretched to encompass anything else. This has become a commonplace lament, but that does not mean it's correct.
Congressional intent isn't the only thing that matters in construing statutes; the statutory language matters, too--and more. Congress enacted broad language in RICO--language that sweeps beyond the specific facts regarding organized crime that inspired Congress to enact the legislation in the first place. That's exactly the point of the first Scheidler decision, rendered in 1994, which refused to limit RICO to Congressional intent, narrowly defined. Instead, the Court took account of the statute's broader language.
If it wanted, Congress could have narrowed the language of RICO at some point over the many years that the statute has been on the books. But it has not done so--and with good reason.
RICO is aimed at organized crime. But what, exactly, is organized crime? Even assuming that we can identify a paradigm--the activities of Tony Soprano and his associates, let's say--one can hardly write a statute outlawing "the kind of stuff done by people like Tony Soprano." Such a statute would be plainly unconstitutional.
To limit the definition of organized crime to particular individuals, would transgress the Constitution's prohibition on Bills of Attainder--laws that target particular persons alone. Meanwhile, to fail to spell out exactly what sorts of things Tony does that are objectionable would violate the Due Process rights of anyone prosecuted under the Tony Soprano Law. A defendant has the right not to be prosecuted under a law that defines the crime in very vague terms.
Accordingly, RICO quite properly attempts to define the attributes of organized crime that make organized crime harmful. As a result, the statute's language covers some characters who do not look like conventional mobsters, but who commit serial crimes all the same. That is to be celebrated as a triumph of the rule of law, not lamented as Congressional over-drafting or judicial over-interpretation.
In the end, close attention to language may be a double-edged sword, for it may send us right back to the reasoning of Chief Justice Rehnquist's majority opinion. And in the end, the "coercion"/ "extortion" contrast may win the day. If one takes care to interpret RICO's words as meaning no more, or less, than they say, that may also mean that the Hobbs Act's invocation of the crime of "extortion" does not also invoke the crime of "coercion."
Thus, Scheidler may well have been rightly decided and even for the right reason. But one still comes away from reading the Court's opinion wondering whether the case was trickier than the Justices let on.