The Significance of NOW v. Scheidler

Note: This was a guest article by Thomas More Society President Tom Brejcha

PLAL Legal Team

(From left) Christopher Young, Colette Wilson, Tom Brejcha, Debbie Fischer and Ann Scheidler outside the Supreme Court last December. Chris, Colette, Debbie and Ann all assisted lead counsel Tom Brejcha in various capacities during the case.
[Photo by Martin Lueders]

Wonderful news greeted us on the morning of February 26! My co-counsel in Washington, D.C., Roy Englert, telephoned this short, urgent report: “Tom, we’ve heard from the Supreme Court. The RICO judgment is reversed. We don’t have the opinion yet, but it looks good. We’ll send the details as soon as the opinion is released.”

This phone call was nothing short of momentous. We’d been working, praying, and hoping to hear these words of deliverance for so many years that somehow the actual event was numbing. After all, we’d won the whole case once before, back in May, 1991, when all the RICO and antitrust charges against our clients — Joe Scheidler, Andy Scholberg, Tim Murphy, and the Pro-Life Action League — had been dismissed.

That dismissal was unanimously affirmed a year later by our Court of Appeals. But then NOW appealed to the U.S. Supreme Court and the Justices agreed to hear the appeal. They reversed, 9-0, and the joy we’d felt in 1991 faded fast as we found ourselves bounced back to the trial court before another federal Judge newly appointed by President Clinton. He proved inhospitable toward our clients and our advocacy.

A Time for Reflection

So, that early phone call from Washington on February 26th precipitated less a sense of triumph than a mix of relief and a sudden compulsion to sit down and meditate on this long, hard fight against NOW and the abortion industry, which we’d been carrying on for nearly 17 years. Perhaps we’d get a new trial, another “bite at the apple.” That was precisely what we’d been hoping and praying that the Supreme Court would grant us.

We’d hoped for a 5-4 win. But the final tally was an amazing 8-1 in our favor—a landslide victory!

But an hour later my other Washington co-counsel, Alan Untereiner, called back with the details of the decision, telefaxing us a copy of the Supreme Court’s written opinion. By then, Roy Englert’s earlier news that it looked good proved a remarkable understatement! We’d hoped for a 5-4 win. But the final tally was an amazing 8-1 in our favor—a landslide victory!

We’d not only garnered the votes of the “swing voters,” as the press typically described them— Justices Souter, O’Connor, and Kennedy, all of whom had voted to reaffirm the “essential holding” of Roe v. Wade in the 1992 abortion case, Planned Parenthood v. Casey — but we’d also won over the two newest Justices, whom President Clinton had appointed, Justices Ruth Bader Ginsburg and Stephen Breyer. Indeed, Justice Ginsburg was once a lawyer for NOW. Yet here she had voted for our clients!

We soon realized there would be no new trial on the RICO charges. The Supreme Court had gone far beyond the relief for which we’d prayed. After almost 17 years of struggle involving not one but two trips through all three levels of the federal judicial system, there was nothing left to NOW‘s or the clinics’ case! And there was no further avenue for appeal!

Barring any more aberrant departures from legal norms, all that remains is the “endgame.” That involves an assessment of “costs” in our favor, reimbursing costs for our filing fees, deposition expenses, witness travel for the trial, and such expenses. All of this should add up to a tidy sum after 17 years.

It will also encompass release of the security arrangements, which had been set up to forestall plaintiffs’ collecting the triple damages of nearly $258,000 from any of the defendants during the appeal. The security consisted of borrowed cash ($70,000) plus a pledge of the equity in the Scheidlers’ home, all of which Joe and Ann stood to lose if our appeal had failed.

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What Was at Stake

Far more was at stake than the Scheidlers’ home and the $70,000 cash, however. If the appeal were lost, NOW and the providers also would have been entitled under RICO to recover their “reasonable” attorneys’ fees, which very likely would have dwarfed the $258,000 awarded as triple damages. Defendants would have been hounded into the poor house, stripped of all assets but for whatever meager remnants survived bankruptcy proceedings.

And no doubt bankruptcy filings would have been picked over as if by vultures. We’d often mused during dark moments over the erratic career of this case and the grim prospect of NOW hauling off statues and sacred artifacts from the League’s office, or ripping out pews from its chapel.

What the Supreme Court’s ruling meant to our opponents was also telling. NOW’s president, Kim Gandy, proclaimed that she was “shocked.” Susan Hill, president of the National Women’s Health Organization, two of whose clinics sued on behalf of the entire abortion industry, says that she was “flabbergasted” that it took so long to find out that the lawsuit had been, as she put it, “filed under the wrong law.” Had Susan listened to us, we could have saved her all that trouble!

Vitriol from the Losing Side

Fay Clayton, our opposing counsel, has been angrier and more outspoken than ever since the 8-1 victory. She’s been uttering threats that “it isn’t over.” She has boasted, too, that NOW‘s charges, though ultimately deemed meritless, had a negative impact on the pro-life movement, confirming what Harvard Law Professor Alan Dershowitz once said, that NOW used civil RICO as a bludgeon with which to terrorize its ideological adversaries through use of the courts. Finally, Ms. Gandy has predicted that NOW will try to use the USA Patriot Act against our clients when the case returns to the trial court.

NOW used civil RICO as a bludgeon with which to terrorize its ideological adversaries.

These sharp reactions from our opponents underscore the far-reaching importance of the Supreme Court’s decision. This case was a “flagship” for the pro-abortion crowd, a national symbol for their unceasing efforts to blame pro-lifers for all the fear, shame and uncertainty that have plagued their blood-soaked industry since 1973. The Scheidler litigation was a way to avert society’s eyes from the bloody violence against innocent, defenseless human beings inside abortion clinics, and focus them instead on alleged violence outside the clinics.

Although plaintiffs’ main thrust in court was that peaceful civil disobedience — blocking access to abortion — constitutes the federal felony crime of extortion, a “pattern” of which constitutes racketeering, NOW and the abortionists’ propaganda convinced the press that their lawsuit was a crusade against pro-life “violence.” Even when ruling for the defendants, the federal courts fell victim to this same propaganda. In 1992, when the U.S. Court of Appeals in Chicago unanimously affirmed the dismissal of plaintiffs’ charges, the Court felt compelled to note that its decision had been reached “reluctantly” and that defendants’ actions were “reprehensible,” though lawful under federal law.

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A Victory for Social Protest

Now the tables are turned. Though the plaintiffs still broadcast their false propaganda pro-life “violence,” this time the Supreme Court Justices saw the truth. In April 1998, without identifying the dates, times, places, or specific incidents, jurors found a “pattern of extortion” that consisted almost exclusively of peaceful acts of civil disobedience, precisely what Dr. Martin Luther King described in his famous Letter From The Birmingham Jail as “peaceable, non-violent direct action.” Under the expansive definition of extortion approved by the lower courts, Dr. King would have been a “racketeer” too.

We were able to convince scores of other protest groups that they too would be liable to devastating RICO suits if the lower courts’ decisions in our case were not overturned. Our visits to Atlanta bore fruit when Dr. King’s Southern Christian Leadership Conference, now directed by his son, M.L. King III, submitted a “friend of the court” brief to the U.S. Court of Appeals. They joined the brief filed by the Seamless Garment Network in the U.S. Supreme Court. People for the Ethical Treatment of Animals (PETA) rallied to our cause. So did Sojourners, Not Dead Yet, the Coalition Against the Death Penalty, Pax Christi USA, the Catholic Peace Fellowship, and many other protest groups and supporters of all stripes.

This was a victory not only for our clients and for the entire pro-life movement but also for other protest groups.

This was a key ingredient in our victory strategy, as became fully apparent when, during oral arguments on December 4, 2002, Justice Ginsburg asked Solicitor General Ted Olson, arguing in support of NOW and the abortionists on the critical extortion issue, if NOW’s theory would have applied to civil rights demonstrators. He answered “yes.” Justice Ginsburg wrote a concurring opinion in which she highlighted Mr. Olson’s concession on this point.

As a result, this was a victory not only for our clients and for the entire pro-life movement but also for other protest groups. Also, NOW and the abortion industry have lost a great deal of credibility at the highest level of the federal judiciary, and this lesson will have many positive repercussions. Pro-life protest, stigmatized by so many recent losses before the high Court, now has an equal claim to respectability before the law. Perhaps now the content of that protest may be heeded, too.

Tom Brejcha is chief counsel at Chicago’s Thomas More Society Pro-Life Law Center and has been lead counsel in the NOW v Scheidler case from its beginnings in 1986.

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