Report from the Supreme Court

I wanted to provide everyone with an update on the Supreme Court cases that were argued yesterday.  The first case presented was the one in which we were Counsel of Record for Operation Rescue, concerning the application of RICO to pro-life protests.  I am optimistic that we could see a unanimous Supreme Court ruling that pro-life protestors cannot be subject to RICO violations.  This litigation has been around for almost 20 years, and it is time for it to come to an end.  The arguments went well, and we anticipate a decision sometime in the spring. 

 

The Supreme Court should do what it did two years ago and declare the use of RICO off-limits for prosecuting pro-life demonstrators.  At that time, the high court clearly concluded that the use of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute - a law designed to combat drug dealers and organized crime - was wrongly used against the pro-life movement.  Unfortunately, a federal appeals court kept this meritless case alive. 

 

In briefs filed with the high court, we contend that there are three independent reasons why NOWs RICO suit must fail. First, the Supreme Court said so in 2003. Second, the supposedly remaining claim, namely, the crime of violence that affects commerce, simply does not exist under the relevant federal statute (the Hobbs Act, which prohibits robbery and extortion). Third, the only judicial relief NOW seeks an injunction is not available to private parties under RICO.

 

The case has been litigated since 1986, when NOW filed a lawsuit against various pro-life individuals and organizations.  In 2003, the Supreme Court seemingly ended the RICO case by a vote of 8-to-1, ruling 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.  When the case returned to the 7th Circuit, our attorneys asked that the case be sent back to the district court with instructions to enter judgment in favor of the defendants.  NOW, however, argued that despite the Supreme Court ruling, the RICO case was still alive and the injunction should remain in effect.  The appeals court agreed that the Supreme Court had not finished the case, and that NOW could pursue the matter further in the trial court.

 

Yesterday the Supreme Court heard oral arguments in the cases of Operation Rescue v. NOW. (No. 04-1352) and Scheidler v. NOW (No. 04-1244) and is considering the two cases together.

 

Concerning the parental notification case, Ayotte v. Planned Parenthood of Northern New England, also before the Supreme Court yesterday, the hearings went better than expected.  Planned Parenthood challenged the parental notification law that the New Hampshire legislature had passed several years ago, but it has never been enforced because of the Planned Parenthood lawsuit.  A majority of the Supreme Court seemed skeptical of the arguments being advanced by Planned Parenthood and the ACLU that parental notification laws under all circumstances would be unconstitutional.  There was a focus on what is called a health care exception; however, the Attorney General from New Hampshire noted that existing law in New Hampshire allows for an abortion in the event of a medical emergency that would cause the minor child imminent harm.

 

The Supreme Court now has an important opportunity to protect the health and the well being of our children by upholding the constitutionality of a state law requiring parental notification before children can get an abortion.  How can parental permission be required to dispense medication to children at school, and then children be permitted to get secret abortions without notifying their parents?  Its a position that makes no sense and reflects a flawed legal and public policy strategy.  Parental notification laws like the one in New Hampshire are extremely important for protecting vulnerable children against coercion, deception, and the damaging emotional and physical consequences of abortion.  There are many serious downsides to the allowance of secret abortions for minors, and we are hopeful the high court will step in to protect our children.

 

In our brief in support of the New Hampshire law, we contended the Supreme Court has never held that all laws regulating the provision of abortions must contain a health exception as the federal appeals court concluded.  In fact, our brief highlighted the fact that the high court has rejected health exceptions in the past in the area of abortion funding and parental involvement laws.  The brief contended that to require a health exception for parental notification laws would be to make a shambles of existing abortion regulations.  Further, the brief 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.

 

Listen in to our radio broadcast Jay Sekulow Live! today to hear clips from the Supreme Court hearings.