Conflicting rights
TOMORROW the Supreme Court considers arguments in two abortion cases -- Ayotte v. Planned Parenthood and Scheidler v. National Organization for Women. Ayotte, which concerns a New Hampshire statute limiting minors' access to abortion, has received considerable attention as a bellwether of the current court's direction on abortion. But the Scheidler case, which arises from the abortion clinic blockades and violence of the late 1980s, may have greater practical significance for women seeking abortions nationwide. We already face a crisis of access in many states around the nation. A return to the days of rampant clinic violence could seal the end of reproductive choice even if the abortion procedure itself remains legally available.
NOW initiated this case in 1986, charging antiabortion activists like Operation Rescue and Joseph Scheidler with violations of the federal Racketeering Influenced and Corrupt Organizations law, or RICO. In 1998, after a seven-week trial, a unanimous jury found the defendants guilty of violating RICO, and the district court issued a permanent nationwide injunction prohibiting them from blockading, trespassing, damaging property, or committing acts of violence directed against clinics. The specific questions now before the Supreme Court concern arcane issues of statutory construction. However, if the court rules against NOW, it will lift this nationwide injunction against clinic violence, setting the stage for the return of lawless blockades, threats, and worse.
The National Abortion Federation, an alliance of abortion providers, has been tracking statistics on clinic violence since 1977. According to the alliance data, clinic violence peaked in the early 1990s, with multiple murders of providers (such as the two murders in Brookline), arsons, and physical assaults as well as more routine picketing and harassment. In recent years, however, clinic violence has stayed at a steady low level, with a handful of arsons and physical assaults combined with an overall increase in Internet and phone harassment.
The nationwide injunction has undoubtedly played an important role in discouraging more-violent antiabortion activity. The numbers speak for themselves -- from 59 death threats against abortion providers in 1994 to 13 in 1999 to four in 2004; from 14 incidents of arson in 1995 to two in 2004; from four murders in 1994 to none for the past seven years. The Freedom of Access to Clinic Entrances Act, or FACE, enacted by Congress in 1994, should also be credited with an important role in discouraging violence. But in contrast to FACE, the nationwide RICO injunction gives litigants quick access to court and the possibility of triple damages -- a significant deterrent that is not matched by the FACE statute.
Further, if the injunction is dissolved, it is not clear whether any similar deterrent to clinic violence will take its place. Whether brought under RICO or FACE, the obstacles to mounting this kind of lawsuit are daunting. NOW relied on skilled pro bono lawyers but also assumed responsibilities for significant out-of-pocket costs in order to obtain the unanimous verdict against the defendants. Moreover, the litigation has now lasted nearly 20 years. There are few organizations or individuals with the funds or stamina to bring Scheidler, Operation Rescue, and their fellow travelers to justice.
In theory, private enforcement actions should be augmented by government-initiated enforcement; the FACE and RICO statutes provide for both. Given its extensive legal resources, the US government is well positioned to stop clinic violence using FACE or other legal strategies. However, we can be assured that the Bush administration will not move quickly to secure women's reproductive rights. Indeed, the administration viewed Chief Justice John Roberts's prior work championing Operation Rescue's activities during his stint in the solicitor general's office as a selling point during the confirmation hearings.
While the most serious clinic violence has decreased overall since 1998, picketing, hate mail, and harassing calls to providers are on the rise. For example, picketing hit a low of 1,407 incidents in 1994, but had risen to 11,640 incidents in 2004. Picketing, of course, is legally protected by the First Amendment. It is not barred by the nationwide injunction. But this increase in protests, combined with continued incidents of burglaries, stalking, and assaults, suggests that there is a potential for more-dramatic clinic violence just below the surface. If the Supreme Court sides with antichoice forces in Scheidler v. NOW and lifts the permanent injunction against clinic violence, women's future reproductive ''choices" may be once again fought out in the streets as well as the courts.
Martha Davis, former vice president and legal director of the NOW Legal Defense and Education Fund, is a faculty member at Northeastern University School of Law. 
