NOW vs Scheidler

Colette Wilson

When NOW v. Scheidler was originally filed back in 1986, most people now reading this article were probably uninvolved in or even oblivious to the great struggle to outlaw abortion and restore to children in the womb the right merely to go on living. The National Organization for Women hoped, through this lawsuit, to keep it that way, for at the heart of NOW v. Scheidler was a plan to crush the pro-life movement at the organizational level, preventing it from ever gathering momentum. This past February 26, the Supreme Court handed our side a significant victory. Gone now is one of the more pernicious weapons in the pro-abortion side’s arsenal: the availability of RICO to penalize pro-life leaders for any and all criminal acts of their real or imagined “followers.”

Initially filing this as an antitrust case in Delaware, Morris Dees, of the Southern Poverty Law Center in Montgomery, Alabama, represented plaintiffs based on prior success against the KKK’s attempts in Texas to drive Vietnamese fishermen out of business.

The complaint was styled as a dual-class action (1) by Delaware Women’s Health Organization and the Ladies Center of Pensacola, on behalf of all similarly situated clinics, and (2) by NOW, on behalf of its members and all other women who use or may use abortion clinics. Sued were Joseph Scheidler and his Pro-Life Action League, John Ryan, the Pro-Life Direct Action League, and Joan Andrews. Scheidler had authored Closed: 99 Ways to Stop Abortion, which promotes nonviolent, direct action tactics.

Andrews had been arrested for going inside both the Delaware and the Pensacola clinics, opening sterile supplies and, in Pensacola, disabling the suction machine. Later that year, the parties agreed to move the case to Chicago, dropping Andrews as a defendant in the process. Chicago attorney Thomas Brejcha was brought in to assist Americans United for Life with the defense, due to his antitrust background.

In 1988, soon after taking Joe Scheidler’s deposition, the Southern Poverty Law Center pulled out of the case. Already representing plaintiffs as their local counsel, Fay Clayton was joined by NOW lawyer Patricia Ireland as the two of them took charge of the prosecution. In February 1989, NOW expanded the case significantly when it added Randall Terry and Operation Rescue as defendants. In a novel twist, the revised complaint made a claim under the federal Racketeer-Influenced and Corrupt Organizations Act (RICO), charging “theft and interstate transportation of fetuses” and Hobbs Act “extortion” of women, physicians, clinics and others by threats or actual acts of physical violence. Plaintiffs also added Andrew Scholberg, Timothy Murphy,Monica Migliorino Miller,Conrad Wojnar, and Vital-Med pathology lab as defendants. The lab was named because information from one of its employees had enabled pro-lifers to recover nearly 5,000 aborted babies from the lab and then hold burial services in numerous cities in 1988. The Ladies Center of Pensacola was later dismissed as a lead plaintiff, for failure to cooperate in discovery, and the Summit Women’s Health Organization in Milwaukee was allowed to take its place.

In what later turned out to be only a temporary victory, in 1991 the federal district court in Chicago dismissed the case in its entirety. It held, first, that the Sherman Act was inapplicable because defendants’ actions were socio-political in nature and not between competitors. Second, since donations received did not constitute “income derived from a pattern of racketeering activity,” §1962(a) of RICO did not apply. Finally, without a “profit-generating purpose,” plaintiffs’ claims under §1962(c) and (d) were unsupportable. Lacking a basis for federal jurisdiction, the pendent state claims were also dismissed. The Seventh Circuit upheld dismissal of the case.

The Supreme Court granted review solely to decide whether Congress had included an “economic motive requirement” when it passed the RICO Act in 1970. On January 24, 1994, just six weeks after oral argument, the Court held 9-0 that RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering be motivated by an economic purpose. The Court specifically declined to rule on defendants’ contention that plaintiffs couldn’t show violation of the Hobbs Act, which makes it a crime to obtain property from another with threats or acts of force. Not long afterwards, defendants petitioned the Supreme Court, seeking review specifically on the Hobbs Act issue, but their petition was denied.

Back down in the district court, plaintiffs proceeded with their RICO extortion theory. NOW lawyers amended the complaint a third time, now asserting that defendants were part of a nationwide conspiracy to commit murder, arson, bombings and kidnappings. By the time the case went to trial, however, defendants had won a motion determining that there was no evidence whatsoever connecting them to any bombings, arson,murders or kidnappings. Also prior to trial, defendants Monica Migliorino Miller, Conrad Wojnar and Vital-Med Laboratory managed to win motions dismissing them from the case. Randall Terry settled out of court with plaintiffs in January 1998, but Operation Rescue itself remained a defendant, as did Scheidler, Murphy, Scholberg, and the Pro-Life Action League.

The trial began on March 2, 1998, lasted 7 weeks, and resulted in a unanimous verdict holding all defendants liable for violating RICO. Partly to blame for this defeat was the prejudicial effect of seemingly innumerable claims of protesters’ violence recounted by plaintiffs’ witnesses. Although barred from attributing bombings, arson, murders and kidnappings to the defendants, plaintiffs’ witnesses were allowed to mention such incidents so the jury could decide whether defendants’ remarks might be perceived as “threats.” Alongside relatively truthful testimony of defendants’ nonviolent sit-ins in clinic waiting rooms and entrances, plaintiffs’ witnesses also told shocking tales of patients and staff being pushed, punched, grabbed, knocked to the ground, struck with protest signs, and threatened with violence.After the trial, defendants uncovered substantial evidence that the worst such claims were false, but the damage was already done. (For an in-depth article on this subject, see WORLD Magazine, 10/5/02, cover story [ 02/cover_1.asp].)

However, even more destructive to the defense than the claims of pro-lifers’ violence was the district court’s granting of permission to use an exceedingly “low threshold” interpretation of what constituted Hobbs Act extortion. The Hobbs Act defines extortion as: “the obtaining of property from another, with his consent, induced by the wrongful use of actual or threatened force, violence, or fear. . . .”The jury in Scheidler was instructed that merely “depriving” the victim of property could be equated to the defendants’ having “obtained” it. Moreover, the jury was instructed that the right to seek or provide medical services counted as “property.”This view of what constitutes Hobbs Act extortion set up a “no-lose” framework for plaintiffs’ case, as highlighted by this trial exchange between NOW attorney Fay Clayton and pro-life activist John Cavanaugh-O’Keefe:

CLAYTON: You’re aware, aren’t you, that “property” includes the right to go to your doctor? You’re aware of that?

O’KEEFE: Sure, all right.

CLAYTON: Okay. You are also aware that “property” under the law includes the right of clinics to provide medical services, aren’t you?

O’KEEFE: To provide medical services, yes.

CLAYTON: And you saw those interfered with, didn’t you, sir?

O’KEEFE: We did certainly interfere with abortions.

Unsurprisingly, the jury found all defendants liable for extortion. They awarded some $86,000 (tripled to $258,000 under RICO) to clinics in Milwaukee and Wilmington, Del., for increased security costs. Following the verdict, Judge Coar issued a nationwide injunction barring defendants (and persons acting in concert with them) from “interfering” with abortion clinics or their staff or patients for ten years. Defendants would also have to pay their opponents’ attorneys’ fees, estimated at over a million dollars.

In order to appeal, defendants were required to post actual assets that would immediately satisfy the treble-damage award in the event the appeal was unsuccessful. Determined to fight this judgment, Joe Scheidler took out a $70,000 loan and put his house in escrow.

In its October 2001 decision, the Seventh Circuit rejected all of the defendants’ reasons for overturning the judgment. In January 2002, Joe Scheidler, Andy Scholberg, Tim Murphy and the Pro-Life Action League petitioned the Supreme Court for review, as did Operation Rescue by way of its own, separate petition.

Review was requested on three bases: (1) whether or not private RICO plaintiffs may seek injunctive relief, (2) whether the Hobbs Act criminalizes the activities of political protesters whose conduct interferes with the public’s access to a business’s premises and (3) whether trial procedures for awarding damages avoided penalizing defendants for exercising their First Amendment rights.

Numerous organizations and individuals supported defendants’ petitions by filing amicus curiae (friend-of-the-court) briefs, including the Southern Christian Leadership Conference, People for the Ethical Treatment of Animals, the Seamless Garment Network, actor-activist Martin Sheen, and others on both sides of the abortion issue.

On April 22, 2002, the Supreme Court granted certiorari. Review was limited to the injunction and Hobbs Act issues. Numerous and varied amici curiae again supported defendants. Life Legal Defense Foundation’s brief addressed the injunction question. The Seamless Garment Network discussed the history of social protest in this country. PETA said its members had been sued under RICO for actions in an animal-testing laboratory.

While, strictly speaking, the case did not involve the First Amendment, amici expressed their concerns that the Seventh Circuit’s decision meant they, too, could face harsher penalties for demonstrating. The Court heard oral arguments on December 4, 2002.

The case for defendants/petitioners was presented by Roy Englert, Jr., a Washington attorney who had previously argued twelve Supreme Court cases with success. Englert pointed out that, even if the Court were to accept the arguments in NOW’s brief, the case would have to be retried because NOW’s attorneys had scrapped their original definition of “property” and invented a new one for this appeal.

But even their new definition—“control” over business decisions—was an “awfully broad” and “very odd” use of language.“My clients don’t have the clinics’ property today as they would if they had obtained it.”

More importantly, “classic protest activities, venerated in American history,”would risk violating the Hobbs Act under the Seventh Circuit’s decision. “That ought to give the court pause,” he said. Justice Sandra Day O’Connor noted, “We’re not talking about conduct that’s lawful here. To paint the picture we’re talking about pure speech is not the case.” Englert readily agreed, saying that was why he had used Carry Nation, the ax-wielding prohibitionist, as one of his examples.

Solicitor General Ted Olson represented the federal government, and argued that extortion charges could apply to abortion clinic blockades, but only as to the clinic owners whose business was disrupted by the abortion protests. As for the injunction issue, the government agreed that private RICO parties were not entitled to injunctive relief. When Olson stated that the First Amendment is not an issue in this case, however, Justice Kennedy interrupted, “There is always a First Amendment implication in a protest case. There is a First Amendment issue in the case because of the broad definition [of “obtaining property”] you’re proposing.

Justices questioned Clayton whether black civil rights leaders could have been punished for boycotting white businesses. She responded,

Martin Luther King didn’t tell the people to go into Woolworth and bash people.” Justice Scalia broke in: “You’ve used the term ‘violence’ several times. That’s not what the instruction required. As your argument to the jury indicated, it was enough if they obstructed the entrance and ‘failed to part like the Red Sea’ if somebody wanted to go in.” “That is not correct,” Clayton insisted. Scalia then read aloud from the transcript of plaintiffs’ counsel’s closing argument to the jury: “‘There is one way, I guess, in which you don’t have the element of force in a blockade, and that would be if the blockaders did something that they were specifically instructed that they should never do, that is, politely move aside, part like the Red Sea and let a woman through. But you know that never happened.No witness ever testified to that. No witness, not defense, not plaintiff, ever said that any of the blockaders were instructed to let women through.’ In other words,” said Scalia, “you told the jury that you could find an offense here under the Hobbs Act by the mere blockade. It wasn’t smacking people around. It was just not letting people in.

The Court’s February 26, 2003, 8-1 decision dismissing the case seemed to take everyone by surprise.NOW’s press release called it “shocking,” while Scheidler lead counsel Tom Brejcha told reporters the most he had dared hope for was a new trial. Chief Justice Rehnquist, writing for the majority, said there was no dispute that abortion protesters interfered with clinic operations and in some cases committed crimes. “But even when their acts of interference and disruption achieved their ultimate goal of ‘shutting down’ a clinic that performed abortions, their acts did not constitute extortion.”He noted that there is a distinction under the Hobbs Act between “depriving” someone’s right to property and actually “acquiring” the property, which the protesters did not do. With no other basis for a RICO claim, plaintiffs had no case. The Court never reached the issue of whether private RICO plaintiffs may obtain injunctions.

In Justice Ginsberg’s separate concurrence, joined by Justice Breyer, she noted there were other legal avenues, including the Freedom of Access to Clinic Entrances Act of 1994, available to punish disruptive clinic protesters, suggesting that was one of the reasons she was able to concur with the majority.

Justice John Paul Stevens filed the only dissent, in which he criticized the majority for limiting the scope of the Hobbs Act and argued that this narrow interpretation would benefit only “professional criminals.”

By definition, protesters who engage in civil disobedience are “criminals.”Yet, underlying the Court’s decision is an acknowledgement that, oftentimes, such conduct makes the statement that one is protesting an unjust law by breaking it. Civil disobedience is not to be equated with extortion. The reason is that society potentially benefits when citizens engage in what may be symbolic acts of misconduct aimed at arousing public sympathy—such as Carry Nation smashing kegs of whiskey or Joan Andrews disabling a suction machine.

RICO allowed mostly minor offenses—such as blocking clinic doorways, putting glue in door locks, and “creating an atmosphere” that supposedly made arson and bombing possible— to be lumped together and seen as a broad conspiracy. Joe Scheidler would have lost his home, his organization, and even risked spending years in federal prison—just for the “crime” of being a leader.

The FACE Act is still around to prevent a mass return of the kind of pro-life civil disobedience common in the 80s and early 90s, but RICO has been eliminated as a club in the hands of abortion enthusiasts to try and knock down effective pro-life leaders and organizations. That is a big win for the defenders of the unborn.

[Colette Wilson is a 1985 graduate of Loyola of Los Angeles Law School and has worked on LLDF cases representing pro-life activists since 1989. She and her husband Tim (Planned Parenthood v. Wilson, 234 Cal. App. 3d 1662 [1991]) are the parents of two adopted children ages 2 and 4. Working from their home in Inglewood, Calif., Colette has assisted lead counsel Tom Brejcha on the Scheidler case since 2000, helping with various post-trial motions as well as the Supreme Court appeal.]

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