Supreme Court Gives Pro-Lifers a Free Speech Victory

The MSN.com headline made it sound like this was a snub to the pro-choice crowd. Were I a conspiracy theorist, I would speculate that it's because left-leaning media outlets know they can drum up support for their views better by misrepresenting the news. Good thing I'm not a conspiracy theorist, right?

Anyway, the basics of the case are this: abortion clinic protestors like to go to abortion clinics and, you know, protest. You'd think the perpetually-aggrieved Left would be happy about people exercising their free speech rights, but you'd be wrong. In fact, the ACLU filed lawsuits under RICO statutes to try to get the pro-life demonstrators to shut up. That's right, RICO, a statute designed to combat organized crime. They're alleging that protestors are like the Mafia. The case is Schiedler v. National Organization for Women.

Eight Supreme Court justices saw through that ridiculous argument (Alito didn't take part in the consideration of the case), which means there are some signs of intelligence on the left side of the Court still. In fact, the opinion was written by the very liberal Stephen Breyer. What is amazing to me is that the ACLU and other (supposed) supporters of free speech in this country were so enthusiastic about relying on expanded prosecution power to silence points of view with which they disagree.

When I was in law school, I took a First Amendment class. Based on the usual discussions, it's safe to say that most of the students in there were very liberal (as in, they didn't think John Kerry was liberal enough for their tastes). We discussed the First Amendment and its applications to all sorts of ridiculous protests, and in every single case, the lefties supported the protestor's right to protest in such a silly fashion. I overheard one student ask the professor for advice on how to disrupt traffic and get arrested to protest a Bush campaign speech (the professor wisely suggested the student choose a different outlet for his political energy). These students vigorously supported even the right of the KKK and neo-Nazis to hold rallies, in the famous Skokie case.

And yet when it came to abortion clinic protests, not a single one of them would defend the free speech rights of those with whom they disagreed.

Actually, the best part was when I overheard one guy, before class started, chatting with some neighbors about how he used to live near an abortion clinic, and how he would see the protestors there all the time. He wondered out loud, "don't these people have jobs?" Heh. Welcome to the world of conservativism, bud. That's what I wondered about pretty much every single lefty protest. Sad that it only occurred to him to ask the question in the context of speech that he would rather see banned.

Note that the case is not really about the First Amendment. It's about the interpretation of a criminal statute about extortion, robbery, and threatened violence. The amazing thing is that on two levels, fundamental to liberal activists, the liberals in this case argued against their usual interests. In terms of the First Amendment, they want to narrow free speech. In terms of criminal prosecution, they want expanded government powers and tougher criminal laws. The only way to understand the lawsuit, then, is to understand that to a liberal, the right to abortion is more important than Free Speech, and the right to abortion is more important than limiting police powers. That says something very significant about the fight we're going to see over the next Supreme Court justice, especially if there are multiple abortion statute cases pending before the Supreme Court.

Update: I like this. Over at NOW's home page, the panic-stricken headline reads: "Supreme Court Ends Protection Against Abortion Clinic Violence." Uh huh. Yeah, I'll bet that's how Ruth Bader Ginsburg would describe it, right? I guess that means I can go start killing women near abortion clinics, and the Supreme Court will be perfectly okay with that. Another way to write that headline is "Supreme Court declines to expand police power to prosecute protestors based on their viewpoint," but you know, whatever.

This is also good: "The Supreme Court has issued a ruling that could add to the increasing difficulty women face in obtaining reproductive health services."

But see, it's not really "reproductive health" if your actions are designed to prevent reproduction, right? And yet liberals accuse conservatives of 1984-ish Newspeak. Good job dumbing down the English language, NOW.

As long as I'm at it: I guess I may as well fisk the whole thing.

"If the Court's 8-0 decision in Scheidler, et al., v. National Organization for Women (NOW), et al. and Operation Rescue v. NOW, et al. ushers in a return to clinic violence in the United States, NOW stands ready to fight in every jurisdiction."

That's a really curious choice of words, there. First we're given a nice scare tactic: Clinic Violence! Suggesting, of course, that violenc is a bad thing. So what does NOW propose to do about it? Fight in Every Jurisdiction! Eh, that's more of a style criticism than anything, I guess, but noteworthy.

"For two decades, NOW has pursued every legal strategy, including three Supreme Court cases, to stave off the violent attacks that gripped this country from the mid-1980s to the mid-1990s."

I especially love this kind of thing. They're suggesting that, but for the efforts of NOW and similar groups, violent attacks would otherwise not be subject to prosecution. Because you know, it's not like any state has laws against assault and battery, or attempted murder, or anything of that nature. That's why the wise Solons at NOW have to wrest RICO statutes out of context -- because otherwise it's perfectly legal to make violent attacks on abortion clinic patrons!!!

Right.

"This case, brought under the Racketeer-Influenced and Corrupt Organizations (RICO) Act, was one of the most successful long-term strategies. The federal jury found unanimously that these defendants had engaged in a nationwide criminal enterprise to close women's health clinics through extortion, violence and threats of violence, and specified over a hundred acts in furtherance of their efforts."

And then the Supreme Court told you that RICO isn't designed to let you stifle free speech when you don't agree with it. You have my sympathies. Also, let me highlight that according to NOW, the finding was made, but by a jury, but by a grand jury. Think NOW is going to explain the difference to you? No, not when an explanation hurts their case. If leaving you in the dark serves their purposes, well, then I guess you'll be left in the dark.

The problem is that a grand jury is empanelled to determine whether they think a prosecutor might be able to prove some set of facts to show a crime has been committed. The burden of proof is extremely low. Nobody cites grand jury findings unless the actual jury's findings aren't helpful.

"The filing of this case and the resulting injunction, which protected clinics nationwide, contributed to the dramatic reduction in clinic violence that we have witnessed in recent years, and we will continue to use every legal tool at our disposal to protect women's right to obtain abortion services."

Again, not that you would know it from reading this article, but attacking people has always been illegal. You don't need RICO to fight it. A simple assault and battery statute will do the trick, I promise.

"This case was never about protests or pickets—it was about violence and extortion."

Right. It was actually about NOW hysterically grasping at straws to save their invented abortion rights. Incidentally, what do you suppose are the odds that the next quoted sentence will try to frighten readers with unfounded scare tactics?

"But without strong protections against clinic assaults, the legal right to abortion could become meaningless."

I stand vindicated. As I noted above, the Supreme Court's decision is really all about interpreting language in a statute. If NOW is concerned that women will be inadequately protected, they can always approach Congress (or state legislatures) and say, "hey, could you change some of the language of that statute to provide stiffer penalties for people who attack clinics?" It worked after the Kelo case, you know.

"If women are too terrified to walk into clinics and healthcare providers are too terrified to keep their doors open, then we will have lost the fight for reproductive freedom even with Roe v. Wade still on the books."

You keep using that word, "reproductive." I do not think it means what you think it means.

"We will not let that happen."

Good, I was worried there, for a second.

"NOW helped to draft and enact the Freedom of Access to Clinic Entrances (FACE) Act in 1994..."


Hey, look at that. It looks like NOW does know what a legislature is. That's a pleasant surprise.

"...and we will use that law to its fullest extent in pursuing those who would use violent means to prevent women from making their own reproductive decisions."

There's that "r" word again. Maybe someone should buy them a dictionary.

"As Susan Hill (president of the National Women's Health Organization and owner of the two clinics that joined NOW in the lawsuit) said, '[w]e cannot allow anti-abortion extremists to take this decision as a signal to once again increase violent activity aimed at clinics and clinic staff.'"

Yeah, that's exactly how I read the opinion. Justice Breyer made it pretty clear that he thinks it's okay for me to go blow up abortion clinics.

"In the coming weeks, our attorneys will make available a FACE kit that local clinics and lawyers can use to enforce the FACE act in their communities."

This is great. I'm perfectly happy that NOW is helping their "constituents," as it were, to exercise their legal rights. It's just too bad that they take such a dim view of pro-lifers exercising theirs. But you know, it's not like the founding fathers intended Free Speech to apply to just any old nutcase.

"We must do whatever is necessary to protect doctors and patients, or our legal right to abortion will be a hollow shell."

Unless, you know, actual police do their actual jobs, and enforce actual legislation to prevent violence (whether or not in front of an abortion clinic). In which case NOW would just look like a bunch of hystrionic harpies.

"Joseph Scheidler, Randall Terry and other leaders of the self-described 'pro-life mafia' had vowed to stop abortion 'by any means necessary,' and the ensuing attacks included arson, bombings, violent blockades, death threats and even murder. By vacating the injunction on narrow, technical grounds, the Supreme Court sided today with thugs and bullies, not peaceful protesters."

Eh. First of all, I'd have more sympathy for you if you didn't devote your lives and careers to the violent destruction of defenseless children. Second, it really blows me away that NOW could actually believe that Stephen Breyer, of all people (not to mention Souter and Ginsburg), sides with thugs and bullies. Third, we've got some more of that curious language. The sentence starts out with a reference to specific people, and then segues into a person-less "the ensuing attacks..." Implying, of course, that Scheidler and Terry personally went around killing people. And that the Supreme Court has no problem with that.

Well, as I said, NOW has no interest in providing facts that contradict their worldview, so I guess I've no reason to act surprised.