"face"-ing Rico: a Remedy for Antiabortion Violence?

Publication year1994


"FACE"-ing RICO: A Remedy for Antiabortion Violence?

Susan L. Ronn(fn*)

Rescue those who are being taken away to death; hold back those who are stumbling to the slaughter.(fn1)

(The Bible)

[P]ersonal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of the government.(fn2)

(Justice Blackmun)

More than twenty years after the Supreme Court's landmark decision in Roe v. Wade,(fn3) the heated debate over abortion continues to make frequent appearances in the media, elections, and courtrooms of this country. The murders of a doctor and his escort at an abortion clinic in Florida(fn4) illustrated the fact that for some, the protest over the legalization of abortion has turned a corner into the realm of extreme violence.(fn5) The abortion issue now seems to center on just how much violence this country is willing to condone.

The fuel firing each side of the debate consists of deeply held beliefs, not only about the status of a fetus, but also about women and their role in our culture.(fn6) A proper examination of the legal issues involved in the abortion controversy must not be based on the morality of the debate.(fn7) And yet the personal beliefs underpinning the arguments should not be completely disregarded lest it become too easy for either side to dismiss those who disagree as either ignorant or simply unwilling to see the truth.(fn8) The beliefs are real; the debate should continue; the violence must end.

The terms pro-life and pro-choice, chosen by opposing sides of the abortion issue to represent their causes, are politically charged labels.(fn9) Indeed, how one chooses to use the language surrounding the debate can often be a statement in itself. Pro-life advocates are commonly referred to as antiabortionists, while pro-choice groups are termed pro-abortion or pro-death. The terms antiabortion and pro-choice are terms used and accepted in the fields of social science(fn10) and the law, and therefore will be used in this Comment.(fn11) Also, because this Comment centers on acts of violence directed toward abortion clinics, the term antiabortion, as opposed to pro-life, serves to differentiate the extremist views of those involved in violence against reproductive clinics from the views of those involved in peaceful demonstrations for political change.

An effective remedy for the violence directed against abortion clinics, health care providers, and the women attempting to secure services has yet to be implemented. Such a remedy is necessary not only to punish those responsible for unlawful acts, but is also necessary for the culture as a whole. A woman should be able to secure her right to an abortion, and a doctor should be able to provide abortion services, without having to run a gauntlet of terror. Likewise, peaceful protesters should be able to retain their First Amendment rights without having to fear unwarranted sanction.(fn12) The escalation of violence at abortion clinics, combined with the frustration surrounding the lack of a remedy has further polarized the two sides of the abortion debate.

The Supreme Court's decision in National Organization for Women, Inc. (NOW) v. Scheidler(fn13) and Congress' enactment of the Freedom of Access to Clinic Entrances Act (FACE)(fn14) should both be applauded for bringing the possibility of a remedy for the violence one step closer to realization. The Supreme Court, by ruling that an economic motivation is not necessary for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO),(fn15) kept alive the possibility of this statute's applicability to antiabortionist violence. Congress, by enacting FACE, provided both private parties and prosecutors with a potential legal remedy for the clinic violence and certain types of illegal obstruction. Both RICO and FACE are necessary in this setting and should be vigorously utilized. Civil RICO is an ideal tool for use against both the leaders of the extremist antiabortion movement who seek to incite others to violence and the violent antiabortion groups themselves. FACE is now available as both a civil remedy and a prosecutorial weapon against those who choose to cross the line from peaceful protest into violence or certain forms of nonviolent obstruction. Nonviolent political protest protected by the First Amendment and the systematic encouragement or commitment of illegal activity are not the same thing.

In Section I, this Comment examines the nature of the violence erupting out of protest activity at abortion clinics. Section II outlines the treatment of different types of federal lawsuits brought by clinics and pro-choice groups against both antiabortion groups and the leaders that spearhead the violent protest campaigns. Section III explores the use of RICO against such groups and individuals, and the imposition of an economic motivation requirement. Section IV discusses both the Seventh Circuit's and the Supreme Court's decisions in NOW v. Scheidler.(fn16) Section V addresses the concerns surrounding the application of RICO to political protest activities. Section VI looks at Congress' intervention with legislation aimed to protect reproductive health care providers and their patients from violence, blockades, threats, and destruction of property, while ensuring the right to speech and conduct protected by the First Amendment. And Section VII briefly describes the possibilities for application of the two statutes.

I. Violence Against Abortion Clinics(fn17)

We regretted the passing of [Dr. Britton's] life just like a Jew in 1943 Poland who just heard Dr. Josef Mengele and his bodyguard were shot down in Auschwitz that morning.(fn18)

(President of Rescue America)

A bullet will stop me, and psychological violence will stop me .... You got one doctor down. All they need to do is kill a couple more, and then everybody quits.(fn19)


Antiabortionists believe that abortion is murder. They believe that a higher law calls them to stop it.(fn20) As in the pro-choice movement, language is very powerful here; fetuses are babies, clinics are abortuaries, birth control is an abortifacient, and physicians are child-slaughterers.(fn21) Antiabortionists hold deep beliefs about their actions and compare their movement to those of Ghandi and Dr. Martin Luther King, Jr.(fn22) However, the violence of the actions committed by some of these groups hardly paints a picture of peaceful civil disobedience.

The number of violent incidents at abortion clinics is staggering. More than one thousand acts of violence were committed against abortion clinics from 1977 to April, 1993.(fn23) In addition, over six thousand clinic blockades and disruptions have been reported since 1977.(fn24) Seventy-three percent of abortion clinics have been the target of at least one illegal activity.(fn25)

Even more staggering, however, is the growing sense of disregard for the law and the conviction that the existence of abortion justifies any action to stop it.(fn26) Since the highly-publicized murders of Dr. John Bayard Britton and his escort in Pensacola, Florida,(fn27) Dr. David Gunn, also in Pensacola,(fn28) the killings of two Planned Parenthood staff workers and the woundings of others present,(fn29) and the wounding of Dr. George Tiller in Wichita, Kansas,(fn30) many antiabortion groups have publicly condemned the shootings.(fn31) Other groups, however, have condoned or even applauded the events.(fn32) While it may be argued that these shootings were isolated incidents among both legal and illegal protest activities, the death threats, wanted posters,(fn33) and picketing of physicians' homes are generating fear among those who perform abortions.(fn34) Lately, antiabortion groups have advocated a widespread targeting of physicians in the campaign against abortion, including a recent attempt to encourage attorneys to bring malpractice suits against physicians who perform abortions.(fn35) More terrifying, however, is the radical groups' commitment to the justified slaying of these physicians under the theory that they are "serial child killers."(fn36)

In the quest to stop abortions, some extremely powerful antiabortion groups systematically encourage their supporters to perform illegal acts.(fn37) For example, the term rescue has become a household word in the United States, and is practically synonymous with its founding organization, Operation Rescue. While a rescue has been denned by antiabortion groups as simply a physical placing of oneself between the pregnant woman and the abortion,(fn38) rescues frequently entail the illegal acts of protesters pouring glue into clinic locks,(fn39) locking themselves to clinic doors,(fn40) damaging medical equipment,(fn41) hitting, pinching, and kicking clinic personnel,(fn42) trespassing on clinic property despite warnings from law enforcement personnel,(fn43) and strewing nails in parking lots and on roadways leading to clinics.(fn44) Other tactics include mass scheduling of no-show appointments,(fn45) sending hate mail, making harassing calls, stalking,(fn46) and using chemicals to destroy equipment or evacuate clinics.(fn47)

As would be expected, the violence and harassment greatly affect abortion clinics.(fn48) Clinics have incurred increased expenditures in providing additional...

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