510 U.S. 249 (1994), argued 8 Dec. 1993, decided 24 Jan. 1994 by vote of 9 to 0; Rehnquist for the Court, Souter concurring. Perhaps no other issue so roiled American public life in the 1980s as did abortion. While the Court provided broad but incomplete protection for women to seek abortions, opponents of the practice mustered a new strategy aimed at disrupting the business of abortion clinics that had sprung up around the country in the wake of Roe v. Wade (1973). The most prominent of these antiabortion groups were Operation Rescue and the Pro-Life Action League, led by Joseph Scheidler. The National Organization for Women (NOW) brought suit on behalf of the clinics against Scheidler charging that he and the Pro-Life Action League, along with similar groups, had engaged in a conspiracy of violence, intimidation, and harassment to shut down abortion clinics. Most significantly, NOW's suit relied on the Racketeer Influence and Corrupt Organization Act, commonly known as RICO. The statute, among its many other stiff provisions, called for triple damages and other heavy financial penalties for running an enterprise through a “pattern of racketeering activity.”
NOW's use of RICO was both innovative and controversial. Scheidler and other antiabortionists insisted that they were not racketeers but agents of legitimate social protest who should be protected under the First Amendment. Moreover, they asserted that the RICO statute was not applicable, since they were not an economically motivated enterprise. Lower federal courts, however, had split on the question of whether to apply RICO broadly or narrowly when interpreting what was an economically motivated enterprise. The Court of Appeals for the Seventh Circuit adopted a narrow view in sustaining the dismissal of NOW's lawsuit on the ground that, no matter how reprehensible the behavior of the antiabortion groups, they did not fall under the RICO statute's requirement for an economic motive to be present.
A unanimous Supreme Court, however, reversed the Seventh Circuit. Chief Justice William Rehnquist adopted a broad view of the law and of the nature of an economic enterprise. “Nowhere,” according to Rehnquist in his analysis of the statute, “is there any indication that an economic motive is required” (p. 257). According to the Court, the law could be applied to any individual or group of individuals, partnerships, corporations, associations, or other legal entities that engaged in a “pattern of racketeering,” meaning two or more incidents of criminal activity such as extortion, arson, and kidnapping. While Rehnquist noted that the law had originally been written to deal with organized crime, he refused to read into the law limits that Congress had itself not written. The Court ordered the case remanded to the federal district court in Chicago for trial based on the RICO statute.
While Justice David Souter joined with the majority, he interpreted the scope of the ruling in a somewhat different way. In a concurring opinion joined by Justice Anthony M. Kennedy, Souter concluded that the Court's decision did not bar First Amendment challenges to RICO's application. In this instance, Souter said, the issue had not been properly raised, but it might be in other cases and RICO could not be used to deter advocacy that would otherwise be protected under the First Amendment.