Update on NOW v. Scheidler

On October 2, the Seventh Circuit Court of Appeals finally handed down its decision in NOW v. Scheidler. The oral argument had been held over a year earlier. The decision affirmed both the damages award and the injunction against Joe Scheidler, Timothy Murphy and Andrew Scholberg, under the theory that their pro-life activity, including involvement with rescues, violated the Racketeering Influenced Corrupt Organizations Act (RICO). Leaving aside the issue of how much liability can attach to individuals for mere association and advocacy, even advocacy of unlawful activity, the decision is noteworthy for its twisting of some very common English words.

To be liable under RICO, an individual or organization must be guilty of at least two “predicate acts,” i.e., two acts which themselves are violations of certain criminal laws, based on which a court can find that the individuals are running a criminal enterprise. To hold Joe and his organization liable, the plaintiff abortion clinics and NOW had to somehow make his activities be considered as one of the specified types of crimes, such as murder, kidnapping, etc. So they alleged that Joe was guilty of extortion, i.e., the obtaining of property from another, with his consent, induced by a wrongful use of force or fear or under color of official right. Their theory was that, through sponsoring rescue blockades, Joe “obtained” from the clinics their right to conduct their business and from abortion-bound women their right to seek medical care.

Sure enough, the Seventh Circuit bought the argument and held that “extortion” in fact requires neither obtaining nor property, as those words are commonly understood.

“Obtaining” just means one deprive someone else of property, not that one gets it for oneself or a friend. So if someone breaks a window, according to the Seventh Circuit, he has “obtained” that window. And “property” not only doesn’t mean tangible property; it doesn’t mean anything of any monetary value at all. “Property” can be any right, as loosely as one wants to define it, e.g., a right to go to the movies.

The ramifications of this decision are far-reaching, and hopefully unacceptable to a higher court. Among other things, what this decision means is that FACE never had to be enacted at all.Congress enacted FACE ostensibly because it wanted to make crimes against abortion providers and patients, and particularly blockades, subject to federal jurisdiction. However, according the Seventh Circuit, everything prohibited by FACE was already prohibited under the Hobbs Act, the federal law governing robbery and extortion.

Congress apparently wasn’t aware of this when it passed FACE. In fact, virtually any protest involving blockades or trespass can now be classified as felony extortion under the Hobbs Act, and two of such acts gets one branded a racketeer subject to the RICO statute.

The defendants filed a petition for rehearing en banc (hearing by the entire 7th Circuit, rather than the original three-judge panel), supported by an amicus brief from LLDF. That petition was denied, so the defendants plan to file a petition for certiorari in the U.S. Supreme Court in January. LLDF will once again file a supporting amicus brief.