Your Activist, My Mobster

By DAVID VAN BIEMA

IMAGINE THE FIVE-AND-TEN ON THE corner. In walk some shady types from the local social club. Nice place, say the boys. For a mere 500 bucks a week maybe it won't go up in flames. Like poor Mr. Kim's a week ago. Or Mr. O'Malley's before that.

That's a racket. Now, instead of a five-and-ten, picture an abortion clinic. And while you're at it, how about a miraculous conversion: turn the hoodlums into militant Christians, whose only payoff is in heaven. They still threaten violence, but not for money. That's a racket?

You can't rule it out just because the perpetrators are nonprofit, indicated a unanimous Supreme Court last week. Writing for his colleagues in the case National Organization for Women, Inc., et al. v. Scheidler, et al., Chief Justice William Rehnquist held that even though antiabortion activists do not seek financial gain, they may still be hit with suits under the Racketeer Influenced and Corrupt Organizations (RICO) law, an extremely effective ) prosecutor's tool forged in 1970. He pointed out that it was money lost by victims rather than money gained by the perpetrators that informed his decision. The blockades have indeed been costly (see chart).

The ruling delighted pro-choicers, some perhaps inordinately. Judith Lichtman, president of the Women's Legal Defense Fund, said, "It's a victory for women" -- though the applicability of that statement may depend on whether a woman is for or against abortion rights. She continued, "By this decision, the court rightly recognized the danger that this national conspiracy of harassment, stalkings, bombings, shootings and chemical attacks poses to women and health care providers." But that may be an overstatement of a far narrower opinion.

When pro-lifer Michael Griffin shot abortion doctor David Gunn in March of last year, the killing helped crystallize a growing public skepticism that the confrontational blockade-and-harass tactics of organizations like Randall Terry's Operation Rescue and Joseph Scheidler's Pro-Life Action Network accurately reflected the compassionate motivations of many pro-lifers. The pro-choice movement, not surprisingly, had already noticed a growing violence among its opposition, and associated it quite directly with the ascension of groups like Terry's and Scheidler's. Since the mid-1980s the choicers had been searching for a sort of statutory guard dog that might take a bite out of not only antiabortion foot soldiers but also their leaders, whom they were already calling Mob-tainted epithets such as "kingpins." When the Supreme Court last year rejected one such suggestion, an 1871 law aimed at the Ku Klux Klan, NOW turned to RICO.

It is certainly a law with teeth -- and a voracious appetite. Drafted in extremely unrestrictive language during a period of concern over organized crime, it enables conviction of all members of a "criminal enterprise," not just the gunsels. And its penalties are steep: up to 20 years in jail for each criminal count and triple damages in civil judgments. RICO quickly proved a sterling Mob stopper, as dozens of capos like New York City's John Gotti can testify. But when lawyers in the mid-'80s realized how broadly written it was, it mutated wildly. Prosecutors turned it on white-collar criminals like junk- bond-king Michael Milken. Plaintiffs in normal civil suits (a famous one involved litigious rabbis) used it to extract lucrative awards or far better settlements. It was invoked in sexual harassment suits.

By 1989, RICO had so much momentum that NOW, embarked on a large antitrust case it had first brought in Delaware, changed the suit's focus to racketeering under the direction of Fay Clayton, a Chicago lawyer with RICO experience. The defendant list was amended to include Terry as well as Scheidler, and the alleged rackets grew to include forcible "invasion" of clinics, burglary (a theft from a dumpster of fetal material) and arson.

The suit failed at the district court level and on appeal: the seventh circuit, while noting that clinic violence was "reprehensible," refused to let Clayton try to prove that the defendants had committed it. The reasoning: a criminal "enterprise" must be dedicated to economic gain. Last week, however, Rehnquist disagreed. "We do not think this is so," he wrote simply. And "nowhere in ((RICO)) is there any indication that an economic motive is required."

Upon reading that, the defendants, at least initially, acted a lot like losers. They cried foul, proclaimed defiance and plotted evasion. "A vulgar betrayal of over 200 years of tolerance toward protest," said Terry. Reverend Keith Tucci, also of Rescue, notes that RICO might force currently open protesters into a more violent underground. Scheidler pooh-poohs triple damages on grounds of his own poverty -- "you can't get blood from a turnip" -- and then reels off a couple of nonviolent schemes that might sidestep RICO. Spilling cranberry juice on white snow to simulate fetal blood might have impact, he suggests; as would abandoning old cars in clinic driveways as a "vehicle sit-in."

Their lawyer, however, is more upbeat. "I lost Round No. 1 on economics," says Notre Dame law professor G. Robert Blakey, who argued before the court. "But I'll win Round No. 2 on innocence." In order to make her newly revived case, Clayton must prove that the pro-lifers engaged twice or more in crimes covered by RICO, and that they did so in connection with the defendants. She claims abundant evidence to this effect. For his part, Blakey brandishes a letter from the explosives chief at the federal Bureau of Alcohol, Tobacco and Firearms stating that "there is no indication that any particular group has acted in unison on the abortion clinic arsons and bombings." Moreover, he claims that RICO was never intended to apply to political protest in the first place.

He speaks with some authority: 23 years ago, as chief counsel of the Senate | judiciary subcommittee on criminal laws, he was RICO's main architect. Blakey now claims that because of Senator Edward Kennedy's worries about Richard Nixon's repressive tendencies, he sat down in Washington's Monocle restaurant and altered the bill's language to avoid its application to antiwar demonstrators. And the Justices may be inclined to honor that exception. Rehnquist took pains in his opinion to assure that the free-speech issue remained open. And Justice David Souter's concurrence invited a challenge, noting that in some contexts, activities alleged as crimes under RICO "may turn out to be fully protected First Amendment activity."

For an indication of how the other Justices might see that issue, both sides are looking to Madsen v. Women's Health Organization, a case scheduled for oral argument this April that features a free-speech challenge to a Florida clinic buffer-zone law. National Abortion and Reproductive Rights Action League's Kate Michelman acknowledges that she is worried that Madsen might "set us back a little."

That foreboding suggests that she understands NOW v. Scheidler for what it most likely is: no affirmation of choice or even a recognition of the dangers surrounding clinics, but a narrow continuation of the court's existing hands- off policy on RICO's breadth. When the racketeering law collides with not only the First Amendment but also the court's six-Justice bloc that favors permitting abortion restriction, the legal Doberman may turn out to be a Chihuahua.

That will not leave the pro-choicers defenseless, however. At a recent meeting with abortion-rights leaders concerned about clinic violence, Attorney General Janet Reno gave out her private phone number. Both houses of Congress have approved Freedom of Access to Clinic Entrances bills, whose reconciled version should become law within months; similar statutes are already on the books in 11 states.

If this dog won't bite, another will.

CHART: NOT AVAILABLE

CREDIT: TIME Graphic by Joe Lertola

[TMFONT 1 d #666666 d {Source: National Abortion Federation}]CAPTION: THE COST OF CLINIC BLOCKADES

With reporting by Julie Johnson/Washington, Elizabeth Taylor/Chicago and Sarah Tippit/Orlando