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Ending nearly 20 years of litigation, the Supreme Court on Tuesday ruled that the federal Hobbs Act does not outlaw the kind of violence that anti-abortion protesters have used to block access to abortion clinics nationwide. The 8-0 ruling in Scheidler v. National Organization for Women blunts a tool that clinics have used to win large financial damages against clinic protesters. NOW and other abortion rights supporters have invoked both the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act against aggressive clinic protesters. Justice Stephen Breyer, writing for the majority, said the Hobbs Act’s words and history make it clear that Congress intended to cover violence associated with more commerce-related crimes of robbery and extortion, not abortion protests. As one piece of evidence, Breyer pointed to the fact that in 1994 Congress passed the Freedom of Access to Clinic Entrances Act (FACE), “aimed directly at the type of abortion clinic violence and other activity at issue in this litigation, thereby suggesting it did not believe that the Hobbs Act already addressed that activity.” The ruling Tuesday was the third time the Court has ruled in the case, which has bounced back and forth to the U.S. Court of Appeals for the 7th Circuit. Justice Samuel Alito Jr., who was not on the Court when the case was argued last November, did not participate. Alan Untereiner of Robbins, Russell, Englert, Orseck & Untereiner in Washington, who represented abortion protester Joseph Scheidler in the litigation, said Tuesday, “We believe this litigation should have ended years ago but are happy with the definitive resolution the Supreme Court provided today.” Given that Tuesday’s outcome was foreshadowed the last time the Court ruled in the case, in 2003, the decision came as little surprise to women’s advocacy groups, which have invoked the 1994 law in recent years and seen clinic violence reduced. “These cases were really decided three years ago when the Court adopted a narrow interpretation of the federal extortion law, an interpretation that had nothing to do with abortion,” said Jennifer Brown, vice president of Legal Momentum, formerly the NOW Legal Defense and Education Fund. She added that the FACE law has “fully protected” clinic operators and patients from violence and harassment. Also on Tuesday, the Court unanimously ruled that when a joint venture sets the prices of its products, it is not a per se violation of the Sherman Act. The 8-0 ruling came in Texaco v. Dagher, in which service-station owners had challenged pricing practices by Texaco Inc. and Shell Oil Co. after they created a joint venture called Equilon Enterprises. Justice Clarence Thomas, writing for the Court, said the joint pricing was unlike a horizontal price-fixing arrangement because Texaco and Shell Oil were operating jointly in the marketplace. “The pricing policy challenged here amounts to little more than price setting by a single entity,” wrote Thomas, reversing the U.S. Court of Appeals for the 9th Circuit’s decision. “We win the result, the case, and the rationale, as far as I am concerned, and the economic world is better off for it,” said Glen Nager of Jones Day, who argued for the winning oil companies. Nager, a former law clerk for retired Justice Sandra Day O’Connor, added, “The only disappointment is that I did not win Justice O’Connor’s vote in the last case that I had the privilege of arguing before her.”
Tony Mauro can be contacted at [email protected].

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