Abortion rulings could bring scrutiny of possible Supreme Court pick Wood

By Peter Slevin
Washington Post Staff Writer
Monday, April 19, 2010; A05

CHICAGO -- If President Obama nominates U.S. Circuit Judge Diane P. Wood to replace retiring Supreme Court Justice John Paul Stevens, social conservatives say they intend to make her rulings on abortion rights the primary point of contention.

"That's her Achilles' heel," said Curt Levey, executive director of the Committee for Justice, which opposes Wood's rulings on abortion. "It tells you that she's probably not going to be selected, because Obama doesn't have the stomach for this to be about an abortion debate."

Obama's intentions remain unclear, but Levey's comments encapsulate a message that Wood's foes are sending as the White House ponders a list of possible candidates. For Wood, who turns 60 in July and was on the shortlist of possible nominees when Justice David Souter retired last year, this vacancy is likely to be her last shot at the court.

Widely seen as studious and disciplined, she serves on the closely watched U.S. Circuit Court of Appeals for the 7th Circuit and teaches at the University of Chicago, where Obama was a law professor. If nominated and confirmed, she would be the only justice without an Ivy League degree -- she graduated from the University of Texas and its law school.

Wood is an antitrust expert with an interest in international law and a history of opinions supporting court access for people claiming discrimination or challenging government rules. She has spoken against a "narrow, literal" reading of the Constitution, suggesting that jurisprudence best evolves through "an interactive process" that involves society, scholars and the courts.

Liberal supporters praise Wood for her willingness to challenge 7th Circuit Judges Frank H. Easterbrook and Richard A. Posner, formidable thinkers admired by conservatives. Despite their ideological differences, the three are friends who often eat lunch together.

'Carefully reasoned'

Critics "are misconstruing some carefully reasoned opinions for their own political ends," said Nan Aron, head of the liberal Alliance for Justice, who noted that Wood's support for abortion rights is not unusual. "No one expects a Democratic president to appoint a justice or a judge who is anti-choice."

Social conservatives criticize Wood for drafting opinions opposing a ban on late-term abortion and an Indiana law that required a waiting period for women seeking abortions.

In her 2002 Indiana dissent, she said the majority, led by Easterbrook, misapplied Supreme Court precedent, "substituted its own factual assumptions for evidence" and "failed to focus on the women for whom the statute will create problems."

Last year, an Internet advertisement sponsored by an organization then known as the Judicial Confirmation Network focused on Wood's rulings in a complex lawsuit designed to halt violence at abortion clinics. The case went to the Supreme Court three times and took nearly 20 years to resolve. The high court overturned two Wood decisions, by votes of 8 to 1 and 8 to 0.

The case, known as NOW v. Scheidler, pitted lawyers for the National Organization for Women against the Chicago-based Pro-Life Action League. Filed in 1986, the lawsuit sought an injunction to prevent violence at abortion clinics. In 1984 alone, there were 24 bombings or fires set at abortion clinics or abortion rights offices across the country.

The presiding judge said protesters forced their way into a Delaware clinic and "wreaked havoc," destroying medical equipment and cabinets and chaining themselves to operating tables as patients were being seen.

In Washington, protesters rushed the doors of a clinic, pinning workers and volunteers against the building. In California, a woman seeking postoperative care after ovarian surgery lost consciousness after being grabbed by protesters.

Wrong on RICO?

When Wood joined the 7th Circuit in 1996, the case had already gone to the Supreme Court, which gave the green light to NOW's attempt to invoke the federal Racketeer Influenced and Corrupt Organizations (RICO) Act against the protesters.

In a subsequent seven-week trial, a federal jury concluded that the protesters had repeatedly broken the law. Jurors awarded damages to two clinics, and the trial judge imposed a nationwide injunction on Joseph M. Scheidler, the head of the Pro-Life Action League, and his organization. When Scheidler appealed, a panel that included Wood noted that the protesters had broken the law and affirmed the verdict, 3 to 0.

"No one disputes that the defendants' speech labeling abortion as murder, urging the clinics to get out of the abortion business and urging clinic patients not to seek abortions is fully protected by the First Amendment," Wood wrote in the 2001 opinion. "It is equally clear, however, that the First Amendment does not protect violent conduct."

When the case went to the Supreme Court a second time, the justices agreed that the protesters had broken the law. But they found that the 117 violations did not amount to extortion, an essential component of the RICO Act, which was designed to pursue mobsters but was commonly used in other types of cases.

In an 8 to 1 ruling, the justices sent the case back to Chicago, where Wood reviewed their decision, asked for briefs from the dueling parties and concluded that the high court had left an important element of the RICO claim unaddressed. She emphasized that she was not challenging the justices' conclusions.

The ruling was not "a green light to start this old litigation anew," Wood wrote. "This does not open Pandora's Box. It merely resolves the final loose ends in this long-running litigation in a manner that is fair to both sides."

Fellow 7th Circuit Judge Daniel A. Manion thought Wood had misread the Supreme Court ruling. He wrote, "I believe the Supreme Court meant what it said." After reciting the high court's wording, he concluded, "At that point, we should have closed the case."

Wood sent the case to the trial judge, but the Supreme Court soon interceded and declared by an 8 to 0 vote that it had, indeed, intended to shut the door on the use of the RICO law. Stevens had backed Wood's original ruling, but this time he joined the majority.

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