Judiciary

Does the Supreme Court Still Speak English?

Back in the heyday of the abortion clinic sit-in movement, the scene was repeated all over America: Out on a sidewalk, a lady would kneel on the concrete and say a rosary. Inside the clinic, a doctor would suck the brains out of an innocent baby.

The cops would come and arrest the lady with the rosary.

This was America in the post-Roe v. Wade era. Murder at the right time was declared a constitutional right; praying in the wrong place was alleged to be a federal offense.

"And you shall understand," said Chaucer’s Parson, "that in man’s sin is every order or ordinance turned upside-down."

Oral arguments presented in the Supreme Court last week in the case of Scheidler v. National Organization for Women made it clear that the revolution in American law that began when the court overturned the abortion statutes of all 50 states is far from over. As long as there stands in this land any threat to the alleged "right" to snuff unborn babies the abortion lobby will be there with a lawsuit ready to advance the culture of death through the arrogated power of un-elected judges.

And as Scheidler shows, in carving out a sanctuary in American law for abortionists, these judges will chop their way through legal precepts that safeguard not only babies and anti-abortion protesters but other Americans as well.

The case at hand has been bouncing around in the courts since 1986 when NOW filed suit against pro-life activist Joseph Scheidler and others who were involved in non-violent demonstrations designed to shut down abortion clinics. NOW alleged that Scheidler and his allies, by blocking clinics even temporarily, had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO).

RICO, of course, was written to target Mafia-like gangsters not prayerful protestors. But that did not stop NOW. RICO was the heaviest club potentially within its reach, so NOW’s lawyers grabbed for it hoping they could use it to beat Scheidler’s movement into permanent submission.

There are two reason RICO could become a powerful political weapon in the hands of NOW. First, it authorizes courts to impose threefold monetary damages on "racketeers" found to have illegally damaged a business. Secondly, according to NOW’s interpretation of the law, it allows private parties to ask federal judges to impose nationwide injunctions on alleged "racketeering" activities. If NOW wins its argument that RICO can be used against political protestors, the law will be used to shut down nonviolent demonstrations forever. That means no more Scheidler-style clinic blockades; no more Martin Luther King-style lunch-counter sit-ins.

The deliverance from NOW’s vengeance is the plain language of the law itself-if the court will respect it.

When Congress wrote RICO it did not intend to make every criminal act a predicate for a racketeering case. So it specifically listed the underlying crimes someone must commit before they can be subjected to RICO. These did not include, as a summary of the Scheidler case published by the American Bar Association (ABA) points out, "trespass, disorderly conduct, obstruction of public passages, vandalism, harassment, resisting arrest, contempt of court, assault, battery, or even rioting."

It also did not include "coercion," which, as the ABA summary noted, "is the criminal compulsion of another by means of threats to do or not do something."

In other words, virtually every crime an anti-abortion or civil rights demonstrator might commit in blocking a clinic or a lunch counter is exempted from RICO. They can and should be punished (as they no doubt expect to be) under the local laws they break, but they should not be targeted and treated like a national drug-smuggling syndicate.

But NOW alleged in its suit that pro-life sit-ins amounted to the RICO-listed crime of "extortion"-and a trial jury and appeals court agreed.

Extortion is defined in the law as "the obtaining of property from another, with his consent, induced by the wrongful use of actual or threatened force, violence or fear."

To prevail in the Supreme Court, NOW must persuade five justices that people temporarily blocking access to a clinic "obtained" property by that action.

The common usage of "obtain," as judges and juries have interpreted it in the extortion statute for decades, and as legislators surely intended when they wrote the law, and as it is recorded in Black’s Law Dictionary, is to "acquire." Or, as Webster’s would have it: to "procure."

As the U.S. 9th Circuit Court of Appeals has ruled, extortion is "a larceny-type offense" that "does not occur when a victim is merely forced to part with his property." The extortionist "must receive the property of which the victim is deprived."

Now, it is undeniable that Joe Scheidler does not own an abortion clinic. He may have blockaded a few; he has never "obtained" one.

The question is: Does the Supreme Court still understand English?


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