Protecting Life at the Supreme Court of the United States
September 2005
This term at the Supreme Court of the United States is getting a lot of attention because of three cases focusing on the protection of human life.
In a case that I began arguing nearly 20 years ago, the ACLJ will be back before the high court again asking the Justices to reinforce a decision it made several years ago when it determined that the federal Racketeer Influenced and Corrupt Organizations (RICO) statute could not be used against pro-life organizations.
The National Organization for Women argued that pro-life sit-ins and other obstruction of abortion businesses constituted extortion under the federal Hobbs Act and racketeering under RICO. In 1998, a federal district court in Chicago ruled against the pro-life defendants and issued a nationwide injunction. The case reached the Supreme Court in 2003 when the high court by a vote of 8-1 determined that RICO crafted for going after drug dealers and organized crime did not apply to pro-life organizations engaged in demonstrations.
In that decision, the high court ruled that merely obstructing the operations of a business, without obtaining any money or other property, was not extortion. The high court concluded that all of the predicate acts [under RICO] must be reversed, that the judgment that [defendants] violated RICO must also be reversed, and that the injunction . . . must necessarily be vacated.
Unfortunately, NOW was successful in convincing a federal appeals court to keep the issue alive and the nationwide injunction in place. We represent Operation Rescue in this case and are hopeful the Supreme Court will remove once and for all this dark cloud hanging over the pro-life movement.
At the same time, the ACLJ has filed friend-of-the-court briefs in two critical cases.
We have asked the high court to overturn a federal appeals court decision that declared unconstitutional a state law requiring parental notification before minors can get an abortion. The case involves a New Hampshire state law and urges the high court to permit states to prohibit secret abortions for children.
Laws like this are extremely important for protecting vulnerable children against coercion, deception, and the damaging emotional and physical consequences of abortion. The states must be able to step in and protect children through the involvement of their parents from shady abortion practices, from overbearing and pushy boyfriends, counselors, and employers, and from a major medical procedure that can significantly compromise the health and well-being of their children. To permit children to get abortions without parents being notified is not only legally flawed, but bad public policy.
In our brief, we cited specific Congressional testimony from women who received secret abortions as children and whose testimony dramatically demonstrates that parental notification laws are needed and would play a vital role in the health and safety of children who are considering abortions.
And, in a case that is likely to generate a lot of attention, we filed an amicus brief asking the high court to overturn a federal appeals court decision that barred enforcement of a directive from then-U.S. Attorney General John Ashcroft that said physicians cannot prescribe federally controlled substances narcotic drugs for the purpose of killing patients who want to commit suicide. The directive was challenged by the state of Oregon, which adopted a law allowing the prescription of lethal overdoses for assisted suicide.
In the 2001 directive, the federal government said that assisting in suicide is not a legitimate medical purpose and stated that physicians who prescribed life-ending drugs would lose their licenses to prescribe federally controlled drugs under the Controlled Substances Act. The state of Oregon challenged that directive claiming it represented a federal usurpation of state control over the practice of medicine.
In our view, the directive is both legally sound and constitutional. The Attorney General clearly has the authority to use a federal statute to take action against doctors who assist terminally ill patients commit suicide. This critically important case raises a key question: should the federal government be permitted to legally prohibit physicians from prescribing life-ending federally controlled drugs to assist patients commit suicide? We are hopeful the Supreme Court will conclude that the federal government has the authority to act and that federal drug laws must take precedence over the states decision to experiment with legalized assisted suicide.
You can never be certain how the Supreme Court will rule on these cases. But one thing is clear: any time the issue of life surfaces at the Supreme Court two things will happen: there will be much debate about the cases, and as Christians know there will be a good deal of prayer as well.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice, a Washington, D.C. - based legal advocacy group focusing on constitutional law.