An appeal of a landmark decision against anti-abortion activists is currently pending in a federal appeals court, leaving activists on both sides of the abortion debate wondering what the next chapter of the 15-year-old legal battle will be.
The case on appeal is known as NOW v. Scheidler – a class-action lawsuit by the following plaintiffs: the National Organization for Women, all women who are currently or will in the future seek the services of an abortion clinic, and women’s health centers that perform abortions.
In 1986, NOW sued the Pro-life Action League, its founder and director Joseph Scheidler, Operation Rescue and two other individuals under anti-trust laws. After a lower-court threw out the case, NOW changed its tactic, suing instead under the federal Racketeer Influenced and Corrupt Organizations, or RICO, chapter of the Organized Crime Control Act of 1970.
Again, a lower court threw out NOW’s claim. Eventually, however, the case made its way to the Supreme Court, which decided in 1994 that NOW could continue with its RICO claim. In its opinion allowing the claim to proceed, the high court cited a provision of RICO, Title 18, Section 1962 (c), which prohibits “any person associated with an enterprise engaged in, or the activities of which affect, interstate or foreign commerce, from conducing the affairs of the enterprise through a pattern of racketeering activity.” A subsequent section of the code also prohibits any person from conspiring to violate Section 1962(c).
Federal District Judge David H. Coar in the northern district of Illinois presided over the case, and a six-person jury returned a series of special verdicts in April 1998, finding the defendants guilty. Interestingly, the jury’s verdict convicted additional, unnamed people as well. A four-page “special interrogatories and verdict form” was given to the jury, which was required to indicate how many criminal acts from a specific list were committed by “defendant, or any other person associated with PLAN.” (In court documents, Scheidler’s group is referred to as PLAN, for Pro-life Action Network.)
On the verdict form, the jury found specifically that:
a) 21 “acts or threats involving extortion against any patient, prospective patient, doctor, nurse, or clinic employee” were made in violation of federal law;
b) 25 acts or threats were made as listed above in violation of state law;
c) 25 attempts or conspiracies were made “to do any of the acts listed above, even if the act was not actually carried out;”
d) 4 “acts or threats of physical violence to any person or property” were made;
e) 23 times defendants or their associates crossed state lines or used the mail or telephone “with intent to commit or facilitate an unlawful act, such as extortion;” and
f) 23 attempts were made to do the above listed acts, “even if the act was not actually carried out.”
Two additional crimes were listed on the form – threats of murder against a doctor, nurse or clinic employee and causing another person to commit acts listed in (e) above – but the jury found defendants not guilty of those violations.
The wording of the special verdict does not specify which defendant committed which crimes. Indeed, the form does not even distinguish between defendants and “any other person associated with PLAN,” leaving Scheidler, two other individuals, the Pro-life Action League and Operation Rescue responsible for all the acts listed in the verdict. The jury ordered Scheidler and the other named defendants to pay a combined total of $86,000 to two clinics representative of the class in the suit.
The language of the verdict form ostensibly was written to reflect wording in RICO, which includes “any person associated with” a racketeering enterprise as subject to the statute. Nevertheless, the defendants have appealed the conviction and subsequent injunction.
Ordered on July 16, 1999, the nationwide injunction prohibits defendants “and each of their officers, directors, agents, representatives, servants, employees, attorneys and any other on their behalf or in concert with them” from “blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot” of abortion clinics. The injunction also lists trespassing on private property of clinics; destroying, damaging or stealing property from clinics and those associated with clinics; and violence or the threat of violence against any clinic or its associates as banned behavior.
Behavior the injunction does not prohibit, and which Coar described as “expressive activities that are constitutionally protected” include, but are not limited to, “peacefully carrying picket signs on the public property” in front of clinics, making speeches on public property, sidewalk counseling, and handing out literature and praying on public property.
Defendants are represented by attorneys Thomas Brejcha and Richard P. Caro of Chicago and Deborah Fischer of Fenton, Mo. Brejcha said the verdict is highly irregular.
“It’s guilt by proxy,” he remarked.
The kinds of “special verdicts” handed down by the jury are unique, said Brejcha, who noted such verdicts have not been used in past First Amendment cases to his knowledge.
Additionally, the conviction under RICO flies in the face of the legislation’s original intent, the attorney said. The law was not aimed at movements of social protest, he explained.
Indeed, American Civil Liberties Union legislative counsel Antonio Califa noted in 1989 that RICO’s “potential for chilling First Amendment rights of expression is enormous.” Brejcha went further, saying the use of RICO against social protests is a “sub-zero blast” against otherwise protected speech and behavior.
But since RICO is being used against a social-protest movement, the Scheidler case concerns whether “an entire movement, and leaders of that movement, are responsible for the wrongful actions of some, who share a common belief and goal, but who engage in acts of violence, where neither the movement nor its leaders advocate, incite, direct, or condone such acts of violence,” Brejcha wrote in the appeal brief.
Congressional hearings have been held in recent years to re-evaluate the scope of RICO. In its consideration of amendments narrowing the law to ensure non-violent protesters are not punished by it, Congress invited NOW attorney Fay Clayton to testify at a hearing three months after the guilty verdicts were issued in the Scheidler case. Clayton, who served as lead attorney in NOW v. Scheidler for many years, said the First Amendment already protects non-violent protests and that any narrowing of RICO would protect extortionists. She used NOW v. Scheidler as the primary example in her testimony.
“PLAN’s founders knew that a well-organized coalition like PLAN would be far more effective in closing down clinics than the dozens of constituent anti-abortion groups operating independently. Because enterprises can be so much more powerful than individuals acting alone, RICO imposes liability on those who actively operate a criminal enterprise, causing it to engage in illegal, ‘predicate,’ acts,” she said, referring to specific language in the statute. “Even if the operators of the enterprise keep their hands clean and avoid personal liability for the offenses they incite, under RICO, they will be liable for operating the enterprise through illegal conduct.
“That is precisely what PLAN’s leaders did,” she continued. “Having formed the enterprise, PLAN called its members to nationwide ‘conventions,’ where they adopted agendas of illegal conduct and sent PLAN’s members to carry them out.”
Clayton said in her testimony that PLAN’s leaders did not commit “the majority of the illegal acts” for which they were convicted, but that most of the acts “were carried out by [PLAN’s] foot soldiers.
“At the conventions, they agreed to new tactics, like barricading clinics with Kryptonite locks, blockading clinic doors with junker cars and dismantling medical equipment. And a PLAN conference was not complete without ‘field training,’ in which the PLAN participants went to a local clinic to practice the unlawful tactics they had agreed to use,” she said.
Scheidler insists he has not committed acts of violence nor threatened the use of violence and should not be held accountable for those who do. While he does advocate civil disobedience, he limits those acts to physically blocking clinic entrances, his lawyer said.
The defendant admitted that some speakers at various PLAN conferences did talk about using Kryptonite locks and other means to block clinic entrances. But “it’s very specious to say that everything given in a talk was adopted” by PLAN, he said. Scheidler has never used such forceful tactics in his demonstrations, nor has he encouraged others to use them, he added.
“She has to puff everything up … to make everything look very sinister,” he said of Clayton’s descriptions of PLAN’s activities. The things Clayton described did happen, he said, but they were not part of Scheidler’s operation and he in no way condoned them.
In his book, “Closed: 99 Ways to Stop Abortion,” Scheidler defines violence as “a direct, physical attack on some type of facility or the personnel who work there.” Abortion-rights advocates often lump together all kinds of “terrorist tactics,” he wrote, “such as telephone calls, pickets, and peaceful sit-ins, in an effort to present a sinister picture of what is in fact non-violent pro-life activism.”
“The use of violence could damage the reputation of pro-life activists, while undermining traditional non-violent methods,” Scheidler wrote. “The use of violence might reinforce the erroneous belief that the end justifies the means, and that evil can be overcome by evil.
“Besides, the use of violence probably would not work in the long run. The destruction of an abortion clinic is a temporary solution. New quarters can be found,” he continued. “We must point out for the sake of proper perspective, however, that no amount of damage to real estate can equal the violence of taking a single human life.”
Scheidler characterized his tactic as one of “non-violent direct action,” which includes sidewalk counseling and blocking access to clinic entrances through the use of large crowds sitting in front of clinics.
That kind of activity could be a violation of the Freedom of Access to Clinic Entrances Act, or FACE. Signed into law by President Bill Clinton in 1994, the statute prohibits the use of or the attempt to use “force or threat of force or physical obstruction [that] intentionally injures, intimidates or interferes with” people “obtaining or providing reproductive health services.”
NOW attempted to amend its complaint to include violations of FACE, but the motion was denied on procedural grounds.
In spite of FACE, Scheidler believes “direct action, and even civil disobedience, [has] an important part to play in winning the pro-life battle. But violence, we believe, does not,” he wrote.
Other activist groups agreed with Scheidler. In a move that made strange bedfellows, People for the Ethical Treatment of Animals filed an amicus curiae brief in support of the defendants. Likewise, the Southern Christian Leadership Conference, founded by Dr. Martin Luther King Jr., submitted a friend-of-the-court brief on Scheidler’s behalf. King is heralded as the champion of non-violent civil disobedience and is a model for Scheidler in his efforts to stop abortion.
Yet NOW convinced Coar that Scheidler and other defendants were responsible for violent acts committed against abortion clinics, staff and patients that occurred even when defendants were not present. Because defendants maintained a hotline informing callers of upcoming protests and activities and because they made other efforts to organize protesters across the country, they are guilty of extortion, agreed Coar.
“This case is about political means and ends. While the political ends of the defendants – to convince the public of the need to protect what they characterize as ‘unborn children’ – are constitutionally protected by the First Amendment, a number of their means – destroying property and threatening violence – are not,” wrote Coar in his opinion issuing the injunction.
In its press statements, NOW continually refers to defendants as “thugs,” saying Scheidler and others engaged in a “shameless attempt to pervert the First Amendment” while in court. Repeated calls to NOW were not returned, but the group’s website contained comments from NOW President Patricia Ireland and Clayton.
“Our evidence and witnesses proved the defendants engaged in a nationwide conspiracy to deny women access to medical facilities,” said Ireland when the jury reached its verdict. “The defendants’ radical campaign to force all of us to adhere to their own narrow views about abortion crossed the line into racketeering when they orchestrated this national network of violence. The recognition of their conspiracy will go a long way toward ensuring women’s access to the services provided at abortion clinics across the country,” she continued.
Clayton added, “We cannot tolerate the use of threats and force by one group to impose its views on others.”
To convince the jury that Scheidler was somehow responsible for violence or threats of violence against abortionists and their patients, Clayton introduced written evidence from Scheidler. The evidence was two business cards Scheidler left on the doors of abortion clinics. Both were left when the activist attempted to speak with abortion clinic operators who were not available. On one, Scheidler wrote simply, “Choose life.” On the other, he wrote, “Sorry I missed you.” Both were characterized as death threats, he said.
The misconstrued notes are the result of pro-abortion hysteria, he said, adding that abortion-rights activists will stop at nothing to protect the procedure.
“Perjury means nothing to them,” he said. “You’ve got to remember where they’re coming from: They kill babies. They will go for broke.”
Scheidler said the testimony of one of NOW’s anonymous witnesses backs up his claim that pro-abortion advocates will say anything in defense of abortion. Known to PLAN as “Miss Hollywood,” Scheidler says he has proof the witness lied about being beaten by protesters. The witness gave conflicting testimony, saying alternately that she was and was not touched by protesters, according to documents obtained by WorldNetDaily. Additionally, Scheidler says he has evidence the woman was paid by plaintiffs to testify. PLAN’s lawyers believe they have discovered the woman’s identity and that she is a named witness in another case against anti-abortion protesters.
Brejcha submitted this and other new evidence to the court, which rejected it. Coar said the evidence was not submitted in a timely fashion.
But the PLAN legal team presses on. Oral arguments on the appeal were heard in September. A ruling is not expected, however, until next year. Scheidler sees the legal saga as evidence that his life’s work of shutting down abortion clinics is succeeding.
“We must be effective for them to go to all this trouble to [pursue] a 15-year-old case,” he said. “For them to go to all this trouble and spend all this money, we must be affecting them.”
Regarding the time, money and other resources that have gone into the lawsuit, in addition to what he says are false accusations, Scheidler calmly takes the challenge in stride.
“It’s just part of the price you pay for standing by the first principles,” he said. “There are eternal values that supersede man’s laws.”
