"People think it won't because the other side thinks they've got the politics on their side now," Hill says. "But nobody thought it would happen the first time, either."
This is the first set of abortion cases the Supreme Court has considered since the appointment of John Roberts as chief justice. Most of the media attention has been on Ayotte v. Planned Parenthood of Northern New England, a case involving parental notification laws for minors seeking abortion. But the NOW cases, which were also argued before the court last Wednesday, could have more immediate impact on the lives of American women.
At issue is an injunction placed in 1998 on Joe Scheidler of the Pro-Life Action League and Randall Terry of Operation Rescue under the Racketeer Influenced and Corrupt Organizations Act. The RICO act was designed to fight organized crime, and broader applications of it have been controversial.
Duke law professor Erwin Chemerinsky is defending NOW and the NWHA. "Really what the case is about is that whether NOW and the clinics are going to be able to keep the injunction," Chemerinsky says. Anti-abortion groups "are engaged in a concerted national campaign of violence against reproductive health clinics and this is a way of dealing with it."
The court's interest is to clarify the RICO act and the 1946 Hobbs anti-racketeering act, he says. But clearly there's more in play. "When you get into the statutory questions," Chemerinsky says, "this is very much through the filter of the abortion issue. Scalia, I would think, would tend to agree with me on a statutory interpretation, but in fact he was very hostile to me because of his strong opposition to abortion rights."
Hill is pessimistic about the decision, which is expected in January or February. If the injunction is lifted, clinics will still be protected under the Freedom of Access to Clinic Entrances Act, which was passed in 1994 after the murders of several doctors and clinic staff. It prohibits violence, threats, blocking access and any other interference with the right to seek, obtain or provide reproductive health services.
But FACE laws can only be used to prosecute individuals on the ground, Hill points out. "The problem is, if there's a national group organizing it, you can't get to the national leader of that group," she says. She believes that the combination of FACE and RICO have saved the lives of many clinic workers. If the RICO injunction is lifted, she says, "I think it'll be a message to anyone who wants to get back out to clinics and organize a group to shut down abortion clinics. I think they're going to feel freer to do that."
This legal battle has been going on for almost 20 years. In 1986, NOW President Eleanor Smeal called Hill after a string of violent clinic invasions, including a NWHA clinic in Delaware. She suggested they file suit against the anti-abortion groups and take on their national organizers, who were calling on their supporters to commit violence and destroy clinics. "She said, 'We need to do this lawsuit, we've got to stop this violence. If we don't, someone's going to get killed,'" Hill recalls.
The anti-abortion groups were found guilty on 21 counts of extortion in a federal jury trial. But the Seventh Circuit Court of Appeals decided that RICO could only be applied in instances of criminal activity motivated by economic gain. So NOW appealed to the Supreme Court which agreed to let the case be heard again in 1994 based on the idea that the goal of the violence was to put the clinics out of business. Since then, the case has bounced around some more, with another hearing before the Supreme Court in 2003, which then voted 8 to 1 that RICO didn't apply. This is the only case ever to come before the Supreme Court three times.
Chemerinsky says "there's no way to know" what the court will decide based on the oral arguments.
"This court is very different," says Hill, who made her third visit to the court to hear oral arguments last week. "It's frighteningly different." She says questions from the judges indicated less concern for the impact on women than she had heard in the past. "With Roberts and with Scalia, it almost seemed as if a few women got hurt because of this, that wasn't a problem."
Hill understands that it's hard for people to remember the climate that led her and Smeal, now president of the Feminist Majority Foundation, to file suit. "It's unbelievable when I look back on it now. It was not a good time for American women. It was extremely hard for them to exercise their constitutional rights." She recalls watching women being carried on horseback by mounted police to the door of a clinic in Indiana because protesters were gathered 10-deep, blocking the entrance. Dr. David Gunn worked for NWHA for eight years before he was murdered in Florida in 1993 by an anti-abortion activist. "The violence in the streets against doctors and staff, that really put off the middle-of-the-roaders and the anti-abortion movement lost support."
Even as the political climate has changed around abortion, demand has remained steady in the 33 years since Roe, never dropping below 1.2 million or rising above 1.5 million per year.
But the politics are profoundly different. "Our concern is, if the violence starts up again and we have a different White House and a Republican Congress that's not sympathetic, we won't get protection," Hill says. Under President Clinton, federal marshals were ordered to protect the most threatened clinics for months at a time. "I doubt this administration would protect clinics if there were threats of violence again. I don't believe they would do it."