On January 28, 2002, Joe Scheidler, Tim Murphy and Andrew Scholberg, as well as the Pro-Life Action League, filed a Petition with the United States Supreme Court, asking the court to issue a Writ of Certiorari in the NOW v. Scheidler case. A Writ of Certiorari is technically an order from the Supreme Court to the Court of Appeals to certify the case and send all the relevant documents to the Supreme Court for review.
NOW v. Scheidler is the RICO (Racketeer Influenced and Corrupt Organizations) case filed by the National Organization for Women, as well as abortion providers, against certain pro-life activists—most notably Joseph M. Scheidler, National Director of the Pro-Life Action League. The Petitioners are seeking to overturn the lower courts’ ruling in the case.
A seven-week trial ended April 20, 1998 with a jury finding that the defendants, which also included Operation Rescue, were guilty of violating the federal extortion and racketeering law, and were liable for $85,926.92 in damages incurred by the two named clinic plaintiffs. A year later, in July, 1999, Judge David Coar issued his ruling, concurring with the jury finding, entering a money judgment for $257,780.76 (treble damages) and issuing a nationwide injunction against the defendants and “all other persons in active concert with them.”
The Story So Far
After their motions for relief in the trial court were denied, defendants Scheidler, Murphy, Scholberg and the League appealed to the 7th Circuit Court of Appeals, as did Operation Rescue. An oral argument was held in September, 2000. Over a year later, on October 2, 2001, the Court of Appeals finally issued its ruling, affirming the District Court judgment and injunction in all respects. On that day, the National Organization for Women sent out a press release, comparing pro-life activists to the international terrorists responsible for the World Trade Center disaster. They and other pro-abortion groups have continued to label pro-life activists as terrorists. As late as February, 2002, after the Scheidler Petition had been filed in the Supreme Court, NOW’s attorney Fay Clayton was quoted in a leading Washington newspaper, comparing the defendants in the RICO lawsuit with Taliban terrorists.
The pro-life Petitioners, through their attorney, Tom Brejcha and the Thomas More Society, secured the services of Alan Untereiner of Robbins, Russell, Englert, Orseck & Untereiner, a law firm in Washington DC which specializes in Supreme Court work. Untereiner was able to distill the most appealable issues from the vast array of judicial errors, misapplications of law and perjury with which the trial was fraught. The end result is a succinct and compelling Petition to review the case.
The principal issues addressed in the Petition are: (1) whether the Seventh Circuit is correct in ruling that injunctive relief is available in a private civil action, in open and acknowledged conflict with the Ninth Circuit, which sits in California and had held that private injunctive relief is not provided for in the RICO statute; (2) whether the Hobbs Act criminalizes as extortion the peaceful civil disobedience activities of political protesters who engage in sit-in demonstrations, such as the Operation Rescue activities; and (3) whether the First Amendment was compromised by the vague “guilt by associateion” verdict forms and other procedures used to channel the jury’s determination of liability and award of treble damages.
Judge Coar’s Ruling
The Injunction issued by Judge David Coar seems at first glance to be fairly innocuous. But on closer examination, it is replete with prohibitions that are vaguely worded and lacking in any specific definition. Pro-life demonstrators are permitted to engage in sidewalk counseling and to distribute literature, but they are prohibited from “inhibiting or interfering with access,” terms very much open to interpretation. They are also prohibited from using “violence or threat of violence.” But these too can be interpreted in various ways. Experience during the trial proved that whenever abortion providers or patrons claimed to have “felt threatened or fearful,” then it became a fact that they had been threatened and had good reason to fear the pro-lifer. The injunction thus could be wielded as a lethal tool against those maintaining a perfectly peaceful pro-life presence outside an abortion clinic.
The use of RICO has become increasingly controversial. Designed to eradicate “organized crime,” it has been used against political protesters, such as in NOW v. Scheidler, against labor unions and businesses, and even in divorce proceedings. In the NOW v. Scheidler case, the crime alleged to have been committed by the pro-life activists was “extortion” outlawed under the federal Hobbs Act. However, in order to apply extortion to the pro-life activities, it was necessary to re-define the meaning of the word “extortion.” As provided in the Hobbs Act, extortion is the obtaining of property from another with the owner’s consent, where such consent is induced by the wrongful use of actual or threatened force, violence or fear.
One is immediately drawn to question what “property” was obtained. In the case of the pro-life demonstrations, the accusation was made that the “property” is the right of an abortionist to conduct his business unbothered by protesters, and the right of a woman to have an abortion at the time and place she wants, unhampered by the presence of protesters. The interference with those rights, in spite of the fact that no tangible, or intangible property, was actually “obtained” by any pro-life demonstrator, constituted the violation of the Hobbs Act. The Petition to the Supreme Court maintains that this is a misreading of the Hobbs Act and that some kind of property had to have been sought or secured and delivered either to the pro-life protester himself or to some related third party, which never happened. The protesters sought to alter behavior, not to obtain anybody’s property.
First Amendment Rights at Stake
With regard to concerns that pro-lifers’ First Amendment rights have been violated by the use of the RICO statute against them, the Supreme Court itself has held that the First Amendment imposes a “special obligation” on appellate courts to conduct a searching review of cases in which protesters’ rights to free speech and association are curtailed. The Seventh Circuit did not actually look carefully at the findings of the jury in NOW v. Scheidler. The jury had not been required to specify what activities among the multitude of pro-life actions presented at the trial were, in fact, violations of the RICO Act. And the jury had been instructed that “fear” could include “not only fear of physical violence but fear of wrongful economic injury.” The jury was told that the use of sit-ins (which amounted to pro-lifers kneeling or sitting in prayer and song in front of an abortion clinic) constituted “force.” Thus, resort to peaceful civil disobedience, which has been a hallmark of social change in America from the time of the Boston Tea Party, to Dr. Martin Luther King’s fifties and sixties crusade for civil rights has now been redefined. Under this decision, unless reversed by the Supreme Court, pro-lifers would have to be constantly concerned that their activities and demonstrations not “cross the line” lest they not be protected by the First Amendment and held subject to the draconian sanctions of the extortion and racketeering laws. Sit-ins are no longer petty crimes—mere trespass or disorderly conduct. Now they constitute the federal felony crime of extortion, and a series or “pattern” of sit-ins now qualify as “racketeering.”
The National Organization for Women and the abortion clinics filed their response to the Scheidler Petition on March 4, 2002. It was full of the expected distortions and exaggerations, as well as repetitions of the testimony that has subsequently been shown to be perjury. Some time in the next few months the Supreme Court will decide whether to take the case for review or not. Alan Untereiner believes there is an excellent chance that the Court will choose to hear the case. Added to the thousands of prayers that have been offered for that cause, our chances look pretty good!