Posted on 02/28/2003 12:14:59 PM PST by Pyro7480
The 6 and 2 to 1 decision in Schiedler v. the National Organization for Women on February 26, 2003 could be seen as a mixed bag for the pro-life movement (it wasn't an 8-1 decision: Chief Justice Rehnquist wrote an opinion for 6 of the justices, Justice Ginsburg wrote a concurring opinion for herself and Justice Breyer).
In their favor, the pro-life movement gained a reversal in the national injunction that was made against the Pro-Life Action League, Operation Rescue, and others that forbid them to demonstrate in front of aborion clinics. These organizations can now hold rallies in front of abortion clinics without the fear of prosecution under RICO. The decision also reversed the jury award that gave a number of "women's health clinics" tens of thousands of dollars.
However, a major roadblock still stands in the way of pro-life activists which threatens them with injunctions and jury awards. This threat is the so-called FACE Act, which was passed in 1994.
Joe Schiedler of the Pro-Life Action League and the lawyer for NOW who argued before the Supreme Court were recently on the "O'Reilly Factor" on Fox News after the decision was made. Mr. Schiedler declared that the decision was a major victory for the pro-life cause. The lawyer stated that while she was disappointed by the decision, that lawsuits and injunctions could still be sought under the FACE Act, which was passed after the case started to make its way through the judicial system
O'Reilly questioned these two guests about the decision. One point that he brought up in response to the NOW lawyer was that if the pro-life demonstrators could be prosecuted on the municipal level for their acts of civil disobedience (which the "pro-choicers" consistently call "acts of violence" by "criminals"), why was it necessary for NOW and others to seek a nation-wide injunction and prosecute the activists under RICO? The NOW lawyer claimed it was because the pro-life activists moved from town to town, bu O'Reilly claimed that the RICO prosecution was being used to silence the opponents of abortion.
O'Reilly's analysis is correct. If it wasn't, why did other "pro-choicers" known for their political activism with other issues support Schiedler and the pro-life activists? They did so because they correctly foresaw that they could be the next targets of a RICO lawsuit/prosecution for their political activism, which would have undermined their ability to protest.
NOW and other "pro-choicers" were trying to undermine the long tradition of civil disobedience and exercise of free speech in America. While the pro-life activists were often prosecuted for trespassing (and rightfully so), they were never prosecuted for exercising their First Amendment freedoms to assemble peacefully. The RICO lawsuit threatened to eliminate the right for pro-life activists to protest peacefully in front of abortion clinics, and conduct sidewalk counseling, in which someone tries to convince a prospective "customer" of the clinic to not go ahead with her abortion. Some of these activists on a number of occasions blocked the entrance to the clinic, and they were prosecuted under local statutes. The lawyer arguing on the behalf of the pro-life activists even admitted that these local statutes had been violated (what Rehnquist called "coercion" in his decision, versus the extortion charge raised by NOW). But these offenses had nothing to do with the right to assemble peacefully, or as Rehnquist argued, "extortion."
The FACE Act does a similiar thing. According to the NOW lawyer, the pro-life organizations can still be slapped with an injunction through FACE. Those who violate the FACE Act by conducting sidewalk counseling or by getting to close to abortion clinics can be prosecuted FEDERALLY. All this amounts to is special protection for the clinics, which most other businesses do not enjoy.
One recalls the civil disobedience of activists who sought the repeal of Jim Crow laws in the South. What if a FACE-style act protected Southern restaurant owners from civil rights activists who sought to eliminate the separate eating areas for blacks? There would be an outcry like none other across the fruited plains. Yet, there is not even a peep from many "civil libertarians" in response to this special protection for abortion clinics.
The FACE Act, and any other law like it, must be repealed. The threat of federal prosecutions for acts of civil disobedience threatens citizens' right to protest against perceived injustices in society. While political commentators on both sides are often irritated by tbe acts of civil disobedience conducted by their opponents, these people forget the immortal precedent of the Boston Tea Party, which was a peaceful but also illegal act of protest against the injustice of taxation without representation (the "Mohawks" destroyed the property of the East India Company). People must be able to conduct acts of civil disobedience without the threat of being slapped with penalties beyond the punishment for trespassing, like an unreasonably high fine or federal prosecution.
The Supreme Court must address the First Amendment implications of FACE and the wrongful use of RICO. They had a chance to do this in Schiedler v. NOW. Unfortunately, they only addressed the RICO issue. In the meantime, pro-life activists must agitate for the repal of the FACE Act. Not only does it give special treatment to a whole group of unregulated businesses, but it also a remaining threat for pro-life activism. It is also contrary to natural law, which gives an individual the moral freedom to violate an unjust law. While Schiedler and his Pro-Life Action League plan to step up their protests, they don't plan to be blocking the clinic entrances like they did before ("They will be mostly prayer vigils and counseling," said Scheidler in an AP report. "The old days of Operation Rescue, I think, are pretty well finished. I don't see any reason to resurrect that — the arrests and so forth."). This is probably partialy due to FACE. The freedom to exercise the right to free speech (against abortion) will still be in doubt as long as this law is in effect, and as long as the courts side with the "pro-choice" activists view that demonstrating in front of clinics is an "act of violence."
I can't imagine why anyone would contend that abortion clinics are no different than any other health care facilities, while at the same time claiming that these facilities must be provided with "protection" from legitimate public demonstrations on public property -- a level of protection, mind you, that a U.S. military installation doesn't even have.
The vile lawyer for NOW was on TV last night stating that while this is a significant victory for the pro-lifers, they will now start filing civil lawsuits under the The Freedom of Access to Clinic Entrances (FACE) Act. According to this FAQ page on the FACE Act...
Civil remedies:
A person injured by a FACE violation may bring a civil suit against the offender. The statute allows a private plaintiff to obtain temporary, preliminary, or permanent injunctive relief, and compensatory and punitive damages, and fees for attorneys. In lieu of proving actual compensatory damages, a plaintiff may elect to recover $5,000 for each violation proven.
The U.S. Attorney General (or any state attorney general) may also bring suit in federal court on behalf of third parties injured by FACE violations. In such actions, the court may award the injured parties the types of remedy listed above; moreover, the court may impose civil fines on defendants according to the following schedule:
- first offense, nonviolent physical obstruction: $10,000
- other first offenses: $15,000
- subsequent offenses for nonviolent physical obstruction: $15,000
- other subsequent offenses: $25,000
Finally, note that FACE does not limit the availability of civil remedies or criminal penalties allowed under state law for the same conduct.
However, we now have a shining light at the end of the tunnel...found this earlier today in a search on Thomas Legislation...
S.3
Sponsor: Sen Santorum, Rick [PA] (introduced 2/14/2003)
Latest Major Action: 2/24/2003 Senate preparation for floor.
Status: Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 19.
Title: A bill to prohibit the procedure commonly known as partial-birth abortion.
If FACE is allowed to be used improperly by courts, then the application of the law becomes bad.
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