Seventh Circuit fortifies private plaintiffs' rights under RICO.

In a decision stemming from litigation over protests outside abortion clinics, the Seventh Circuit Court of Appeals upheld the right of private plaintiffs to seek injunctive relief under federal racketeering laws. (National Organization for Women, Inc. v. Scheidler, No. 99-3076, 2001 WL 1158973 (7th Cir. Oct. 2, 2001).)

"We are persuaded ... that the text of the RICO statute ... itself authorizes private parties to seek injunctive relief," the court wrote, referring to the Racketeer Influenced and Corrupt Organizations Act. (18 U.S.C. [section] 1961-68.)

The decision, which countered a previous Ninth Circuit interpretation of Congress's legislative intent in enacting RICO, recognized the role of private plaintiffs under the statute.

"As the Supreme Court recently noted, Congress, in enacting RICO, intended to encourage civil litigation to supplement government efforts to deter and penalize the prohibited practices," Circuit Judge Diane Wood wrote for the Seventh Circuit. "The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, `private attorneys general,' dedicated to eliminating racketeering activity."

The decision comes during a 15-year litigation battle between the National Organization for Women (NOW) and antiabortion groups, including the Pro-Life Action League and Operation Rescue. NOW filed the lawsuit in response to antiabortion protests outside clinics across the country and threats against abortion providers.

"Unfortunately the protest missions ... involve illegal conduct" in addition to protected First Amendment speech, the Seventh Circuit said. "Protesters do everything from sitting or lying in clinic doorways and waiting to be arrested to engaging in more egregious conduct such as entering the clinic and destroying medical equipment and chaining their bodies to operating tables to prevent the tables from being used. In a few instances, protesters apparently have physically assaulted clinic staff and patients."

NOW sued under the antiracketeering statute and won triple damages for two clinics plus a nationwide injunction prohibiting certain actions, such as blocking clinic entrances and trespassing on or destroying clinic property. The injunction permits protestors to engage in protected First Amendment activities, such as making speeches, praying, and carrying signs on public property.

The Seventh Circuit rejected the defense argument that the injunction was vague and too broad. "There can be no doubt that this injunction reaches only unprotected, illegal conduct, not protected speech," the court wrote. "The defendants' alarmist prediction that, under the terms of the injunction, a protester who engages in months of peaceful picketing and then takes two accidental footsteps onto private property could be subject to contempt proceedings ... is pure fancy and bears no relation to the actual wording of the injunction."

The Seventh Circuit praised the district court's handling of a difficult case and the wording of its injunction.

Speaking about the significance of the decision, Rebecca Epstein, staff attorney for Trial Lawyers for Public Justice, said, "This decision confirms RICO as an effective tool that clinics and patients can use to ensure access.

"The Seventh Circuit has placed its imprimatur on nationwide injunctions that preserve access to clinic services without infringing on protestors' First Amendment rights," she said. "This holding presumably extends to private plaintiffs seeking similar relief under the [1994] Freedom of Access to Clinic Entrances Act."

The court denied the antiabortion groups' request to hear the case en banc. They plan to appeal the decision to the U.S. Supreme Court, said Ann Scheidler, executive director of the Pro-Life Action League.