Strange bedfellows

Probably the most curious thing about Dahlia Lithwick's overview of Scheidler v. NOW is seeing who's on what side.

The case involves the use of RICO statutes against anti-abortion activists who engage in violent protest. NOW originally sued the Pro-Life Action Network (PLAN) in 1986 under RICO and eventually won in the Supreme Court in 1994 when SCOTUS ruled that "extortion" did not have to mean financial gain for the alleged racketeers. The case was remanded back to the lower courts, and here we are again after the inevitable appeals.

The first oddity is Solicitor General Ted Olsen filing a brief in support of NOW:

Solicitor General Ted Olson, who filed a brief that supports NOW's position only somewhat more than PLAN's, has 10 minutes to argue in favor of stretching the racketeering statutes past any plausible meaning. This is perhaps no surprise since his bosses would like nothing better than to use RICO (and FISA, and Bahamian maritime law) to prosecute any suspect in the war on terror who can't be prosecuted under normal criminal statutes.

Yeesh. Much as I want to see the likes of Joe Scheidler and Randolph Terry punished for their criminal behavior, this is very bad.

PLAN also has some unaccustomed allies:

Justice Anthony Kennedy wonders whether any time any protester trespasses for any reason, he's committed a Hobbs Act violation. Olson responds that if the aim is to shut down a clinic, then the protester has "obtained control" of that property.

Justice Antonin Scalia wonders whether this construction of the word "obtained" doesn't "sail too close to the wind of First Amendment rights." And Olson, sailing too close to the wind of Scalia, tries to argue that even in civil rights cases, if the aim was to shut down a business through protest, then yes, there was extortion. This response gives at least an inkling of why organizations such as People for the Ethical Treatment of Animals have sided with the Operation Rescue crowd in this case. If you can't throw a little blood or toss a few pointy sledge hammers, what good is a protest anyhow?

Of course, as the far left and far right have more in common with each other than they do with their more conventional neighbors on the ideological spectrum, this is not that big a surprise. Wish I could be a fly on the wall at a strategy session that includes top dogs from PLAN and PETA, though. Can they even agree on who caters lunch?

Lithwick's right about the fact that this case really doesn't have anything to do with the state of abortion and laws that regulate it. In a way, each side is probably better off if they lose, as winning won't change their daily lives much but losing will give them plenty of tinder to stoke their fundraising fires.

Posted by Charles Kuffner on December 05, 2002 to Legal matters | TrackBack