All Commentary
Monday, May 1, 2006

Unions and Abortion Protestors

To Protect the Illicit Privileges Given to Unions, the Court Extended Them to Abortion Protestors

The National Organization for Women (NOW) and labor unions have a long record of support­ing each other in their respective public-policy wars, so one could reasonably expect the AFL-CIO to be on NOW’s side in Scheidler v. NOW, a long-running case that was finally decided by the U.S. Supreme Court in February. But NOW and the unions were on opposite sides of Scheidler.

The reason goes back to a 1973 Supreme Court case, U.S. v. Enmons. The question in both cases is: when is it legitimate for a private group to initiate violence and threats of violence in pur­suit of its ends? A classical liberal’s answer is, of course, never, even if the ends being pursued are themselves legitimate. Alas, in Enmons the Court said that when unions initiate violence and threats of violence they are exempt from federal prosecution under the Hobbs Act as long as in doing so they pursue “legitimate” union objectives. The Scheidler case was about whether anti-abortion activist groups such as Operation Rescue should enjoy the same exemption to the rule of law given to unions in Enmons. The AFL-CIO said yes; NOW said no.

The Hobbs Act amended the federal Anti-Racketeering Act of 1934, which was aimed pri­marily at organized crime and prohibited violence, threats of violence, and other forms of extortion by indi­viduals and groups against other individuals and groups. As the 1934 Act was working its way through Congress, the American Federation of Labor objected that if applied to labor unions the law would thwart standard union practices in labor disputes. This explicit recogni­tion by the AFL that much of what it did was illicit under ordinary law got Congress to stipulate that unions would be exempt from the Act to the extent that they “lawfully” pursued “legitimate” union objectives.

In U.S. v. Local 807, International Brotherhood of Team­sters (1942), the Teamsters asserted that they were law­fully pursuing legitimate union objectives when, using threats and violence, they stopped trucks entering New York City and demanded that the owner-drivers pay tribute to the union equal to a full day’s wage before they were allowed to proceed. The Supreme Court agreed with the Teamsters. U.S. Rep. Sam Hobbs and several other members of Congress were outraged by this decision and prom­ulgated the Hobbs Act to reverse the Court. In the words of Rep. John Williams Gwynne, an ally of Hobbs, “I think the intent of the Congress in the 1934 statute was to protect the lawful activities of organized labor. The construction put on it by the Supreme Court would authorize unlawful acts—certainly never intended by this Congress” (empha­sis added). The Hobbs Act became law in 1946.

The Act says anyone who “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in com­merce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.” While the Act did not “repeal, modify or affect” any provisions of such pro-union legislation as the National Labor Relations Act (NLRA), it included no explicit exemptions for unions from federal anti-extortion legislation even in pursuit of “legitimate” union objectives.

The Enmons case involved a strike in which individ­ual unionists fired high-powered rifles at three utility company transformers, drained the oil from another transformer, and blew up a company transformer substa­tion, all in pursuit of a higher-pay union contract. The Court decided that such violence was exempt from Hobbs Act prosecution because it was in pursuit of a legitimate union objective. The Court asserted that the Act was meant only to bring union violence under the purview of federal anti-extortion legislation if it was in pursuit of illegitimate ends, such as, in Local 807, extort­ing money for work not performed. If the ends were legitimate there could be no extortion.The Court found that since the NLRA empowers unions to strike in pur­suit of higher-pay contracts, the use of violence in that pursuit was not extortion.

In dissent Justice William O. Douglas wrote, “[T]he Court today achieves by interpretation what those who were opposed to the Hobbs Act were unable to get Congress to do.” In Douglas’s view “the regime of vio­lence, whatever its precise objective, is a common device of extortion and is condemned by the Act.”Douglas was no classical liberal, but he at least understood that legit­imate ends do not justify illegitimate means.

The first Supreme Court decision in the Scheidler case was in 1994. In the late 1980s Joseph Scheidler, head of a coalition of anti-abortion groups called the Pro Life Action Network, and others were alleged to have attempted to shut down abortion clinics by picket­ing, demonstrating, threatening and, in some cases, hos­tile physical contact with both abortion providers and women seeking their services. These tactics are, of course, often employed by unions during strikes and other labor disputes. NOW, et al. sued Scheidler et al. alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute and the Hobbs Act. The defendants argued that since their actions were not motivated by economic gain, RICO was not appli­cable. The Court’s 1994 decision was simply that “RICO contains no economic motive requirement.”

Case Remanded

The case was remanded to the trial court, which found that the anti-abortion protesters were guilty of 121 acts that violated RICO and/or the Hobbs Act. The Seventh Circuit Appeals Court upheld the judg­ment of the trial court. When the case returned to the Supreme Court in 2003, the Court found that, since the protesters did not receive any property from their vic­tims as a result of their violence and threats, none of the acts of the protesters involved extortion or robbery. Therefore the protesters did not violate RICO. Remaining, however, were four acts of violence and threats in which no allegation of extortion or robbery was made, but which could have violated the Hobbs Act. That was the issue decided by the Court in February.

NOW wanted the Act to be read to say that it pro­scribes any obstruction, delay, or interference with com­merce by any of three means: (1) robbery, (2) extortion, or (3) acts and threats of violence that do not involve robbery or extortion. The AFL-CIO didn’t want num­ber three to stand alone. It wanted robbery and/or extortion to be required before a violation of the Act can be found. If the Court accepted stand-alone vio­lence and threats as Hobbs violations, the Court may later decide to revisit its Enmons decision, which exempted unions from the Act on the grounds that vio­lent strike actions, by themselves, do not involve robbery or extortion when undertaken in pursuit of “legitimate” union objectives.

During oral argument Justice Stephen Breyer expressed concern that if NOW prevailed in Scheidler III, routine union violence during strikes could become “a major federal crime.” He and other seven justices who participated in the decision came down on the side of the AFL-CIO. Tragically, to protect the illicit privileges given to unions, the Court extended them to abortion protesters.

  • Charles Baird is a professor of economics emeritus at California State University at East Bay.

    He specializes in the law and economics of labor relations, a subject on which he has published several articles in refereed journals and numerous shorter pieces with FEE.