The Never Ending Saga of NOW v. Scheidler

Joe Scheidler after Oral Arguments 

Joe Scheidler speaks to reporters after his Nov. 30, 2005 Supreme Court hearing [Photo by EJS]

Seven years ago today, the United States Supreme Court ruled unanimously in favor of Joe Scheidler and the Pro-Life Action League in the landmark NOW v. Scheidler case.

The case had been to the Supreme Court three times. Originally filed in 1986, NOW v. Scheidler first reached the high court on December 8, 1993, where justices considered whether the RICO (Racketeer Influenced and Corrupt Organizations) law could be used against protesters.

On January 24, 1994 a 9-0 decision allowed the case to go forward to trial as a civil RICO action.

In 2003, the Court ruled 8-1 that a 1998 decision by a Federal District Court against Scheidler and other pro-life defendants must be vacated, but in 2004 the Seventh Circuit Court of Appeals refused to implement the decision, buying the arguments of NOW’s lawyers that somehow the Supreme Court had overlooked something in its unequivocal 2003 decision. Scheidler then petitioned the Court for another hearing, and once again got certiorari.

On November 30, 2005, the justices once again heard oral arguments. This time Justice John Paul Stevens, who was the only dissenter in the 2003 decision, specifically stated that the Court had meant what it said in that decision.

So on February 28, 2006, the Supreme Court ruled unanimously that Joe Scheidler is not a racketeer. Justice Stevens voted with the majority. Newly seated Justice Samuel Alito did not vote because he had not been on the bench for the oral argument. So the 8-0 decision was unanimous.

As victors, Scheidler and the Pro-Life Action League were entitled to recover the out-of-pocket expenses of the trial and appeals. The National Organization for Women is expected to repay the League for the extremely high cost of defending oneself in a federal lawsuit.

It had taken Federal Judge David Coar more than a year to implement the Supreme Court’s ruling, so the League finally filed a Petition for costs in 2008. As expected, NOW’s attorney, Fay Clayton, objected to the Petition, even though every item was substantiated by an invoice. The federal district court simply set aside the League’s Petition for costs, and Judge Coar retired.

In July 2012 the League, through its attorneys at the Thomas More Society Pro-Life Law Center, raised the cost issue again with the federal court. The new judge, Charles Norgle, has had it under consideration for nearly a year.

And so, the seemingly never-ending saga of NOW v. Scheidler goes on. Tom Brejcha, chief counsel for the Thomas More Society, has frequently compared it to Jarndyce v. Jarndyce, the case in Charles Dickens’ novel Bleak House, which dragged on for generations until all the assets in the disputed inheritance were used up. Much like the victors in Jarndyce, we are not holding our breath waiting for the final word and the payment of our costs.

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