NOW v Scheidler: Landmark Pro-Life, Public Protest Case

Supreme Court BuildingIn 1986, the National Organization for Women and two abortion clinics in filed a complaint in Federal Court alleging violations of the Sherman-Clayton anti-trust laws against Joseph Scheidler, the Pro-Life Action League and several other defendants. Thus began the landmark NOW v. Scheidler case, which ultimately was won by the pro-life defendants.

NOW v. Scheidler is a significant case not only because it involves the issue of freedom of protest but because it involves the thorny Racketeering Influenced and Corrupt Organizations (RICO) Act, the scope of which has extended far beyond the Congress’ original target of organized crime.

The case has been to the Supreme Court three times. In 1994 a 9-0 decicion allowed the case to go forward to trial as a civil RICO action. In 2003, the Supreme Court ruled 8-1 to overturn the Disctrict Court jury’s 1998 guilty finding against Scheidler and his co-defendants. And in 2006, the Supreme Court unanimously ruled again in favor of Scheidler, putting to rest an effort by NOW to keep the case alive in the Seventh Circuit.

In May 2007, over a year after the Supreme Court ruling, District Judge David Coar signed the final judgment, reversing his 1999 Judgment and vacating the nationwide injunction in effect since July 16, 1999.

The final remaining issue in the case was settled in April 2014, when a federal judge ordered plaintiffs to pay $63,391.45 in court costs. A check from plaintiff’s attorney in that amount was handed over in June 2014, ending the case.

NOW v Scheidler Case Summary

June 1986

Complaint filed by the National Organization for Women and two abortion clinics in Federal Court in Delaware alleging violations of the Sherman-Clayton anti-trust laws, against Joseph Scheidler, Pro-Life Action League, John Ryan, Pro-life Direct Action League and Joan Andrews.

The case is later transferred to Chicago and Joan Andrews is dropped from the list of defendants. NOW alleges that the defendants interfered with interstate commerce in their attempts to shut down abortion clinics.

Attorneys for the plaintiffs are Morris Dees and the Southern Poverty Law Center. Attorneys for the defendants are Americans United for Life Legal Defense Fund. AUL soon arranges for anti-trust lawyer, Thomas Brejcha, to work with them on the case since they had no experience with anti-trust law.

The Southern Poverty Law Center conducts depositions of all the defendants and several other pro-life activists.


The Southern Poverty Law Center pulls out of the case. NOW lawyer Patricia Ireland and Chicago NOW associate Fay Clayton took over for the plaintiffs.

At NOW‘s request, the court issues an order forcing the Pro-Life Action League to turn over all financial records, correspondence and thousands of pages of information from their files, as well as all video and audio tapes on file at their offices.

February 1989

RICO charges are added at the suggestion of Patricia Ireland (new president of NOW). The predicate charge under RICO is extortion.

Plaintiffs expand their scope to a class action suit, claiming to represent all women and all abortion providers. They add Andy Scholberg, Tim Murphy, Monica Migliorino Miller, Randy Terry, Operation Rescue and Conrad Wojnar, as well as Vital-Med pathology lab, to the list of defendants.

The pathology lab is included because pro-lifers had recovered the bodies of 5,000 aborted babies from the lab as a result of information from one of its employees. Burial services for the aborted babies were held in a number of cities in 1988, including a burial and memorial Mass presided over by Joseph Cardinal Bernardin in Chicago.

NOW lawyers also add a list of over a hundred alleged “co-conspirators.” In addition they allude to conspiracy, arson and murder in their complaints, although they do not directly charge the defendants with these crimes.

June 1991

Case is dismissed in Judge Holderman’s Court in Chicago. NOW appeals to the 7th Circuit Appellate Court.


Appellate Court upheld Holderman’s dismissal of the case.

November 1992

The day after Bill Clinton’s election, NOW appeals to the U.S. Supreme Court for a determination of the use of the RICO statute against pro-life activists. The Justice Department files a brief supporting NOW’s right to bring RICO charges.

8 December 1993

Hearing before the U.S. Supreme court. Prof. Robert Blakey (Notre Dame Law School) author of the RICO law and consultant on the case for the defendants, argues the case, claiming that since there was no financial gain on the part of the defendants, the allegation of extortion could not be supported and RICO could not be invoked.

24 January 1994

Supreme Court rules 9-0 in favor of the plaintiffs, saying, in effect, that the RICO law itself was not clear on the issue of monetary gain and that the NOW could proceed with a lawsuit under the RICO statue.

April 1995

AUL, financially unable to bear the expenses of trial in this case, requests to withdraw and pledges a $50,000 bequest they are expecting toward the defense for the attorney who continued to defend the case. Defendants choose to continue with Tom Brejcha, who is thoroughly familiar with the case from the beginning.

1994 to 1997

NOW continues with depositions of every major por-life activist leader in the country and demands that the Pro-Life Action League turn over additional correspondence and files so that the plaintiffs could substantiate their allegations of conspiracy and violence.

NOW deposes Paul Hill, on death row in Florida for the shooting death of Dr. Britton and his security guard, as well as Rochelle Shannon, in jail for shooting Dr. George Tiller in Wichita, KS. Their depositions do not indicate any kind of conspiracy with the defendants in the NOW v. Scheidler case.

League Director Joseph Scheidler spends a total of ten days giving his deposition.

April 1997

Abramson & Fox withdraw from the case. The Pro-Life Law Center is established, with Tom Brejcha as Counsel.

November 4, 1997

Judge David Coar rules in favor the plaintiffs’ class-action motion, certifying that the National Organization of Women could represent all women who are not members of NOW and would at any time in the past, present or future, use the services of a facility that provides abortions, and that NOW could represent all abortion clinics in the United States.

Judge Coar sets the trial date for 2 March 1998.

March 2, 1998

RICO trial begins in Judge David Coar’s courtroom of the U.S. District Court for the Northern District of Illinois, Eastern Division. Two days are spent on jury selection, opening statements begin March 4. The trial lasts seven weeks.

April 20, 1998

The six-member jury returns a verdict of guilty of racketeering against defendants Joseph Scheidler, Tim Murphy, Andy Scholberg, Pro-Life Action League and Operation Rescue.

June 30, 1998

A three-day injunction hearing (mini trial) is held, including witnesses on both sides to determine if an injunction is necessary.

July 16, 1999

Judge David Coar issues his memorandum of opinion and nationwide injunction.

August 6, 1999

Defendants file an appeal of the injunction.

January 6, 2000

Appeal briefs are submitted to the 7th Circuit Court of Appeals

September 14, 2000

Oral Arguments before the 7th Circuit Court of Appeals

October 2, 2000

Court of Appeals affirms the District Court finding that the defendants are guilty of RICO violations.

January 28, 2002

Pro-Life Action League files Petition for Certiorari with the United States Supreme Court

April 22, 2002

U. S. Supreme Court grants Certiorari in Scheidler v. NOW (the title of the case now that the defendants are the Petitioners and the original plaintiffs are Respondents.

October 7, 2002

Oral hearing before the U.S. Supreme Court scheduled for Wednesday, 4 December 2002, 10:00 a.m.

December 4, 2002

Oral Hearing before the U. S. Supreme Court begins at 10:00 a.m. Attorney Roy Englert of the firm of Robbins, Russell, Englert, Orseck and Untereiner, argues the case for the Petitioners (Scheidler). Solicitor General Ted Olsen argues on behalf of the government, on our side with respect to the injunction, on NOW‘s side with respect to extortion. Fay Clayton argues on behalf of NOW and the abortion clinics. The hearing lasts one hour.

February 26, 2003

Supreme Court opinion is released: 8-1 in favor of the Scheidler Petitioners. Pro-Lifers across the country applaud this victory.

April 18, 2003

Parties submit Statements of Position to the Appellate Court in response to the Supreme Court decision, indicating what action they wish the court to take in light of the majority Opinion.

April 21, 2003

Scheidler receives notice that he must participate in a mandatory settlement conference with attorneys from NOW and a mediator from the Appellate Court.

May 15, 2003

Mandatory settlement conference is held. No point of agreement is found between the parties.

February 26, 2004

Diane Wood, speaking for the 3-judge panel (Wood, Ilana Rovner and Timothy Evans), remanded the case to the Federal District Court here in Chicago to consider Clayton’s theory of the four acts. Scheidler and the League petitioned the Court of Appeals for a re-hearing en banc.

March 11, 2004

Scheidler petitions the full Seventh Circuit for a re-hearing en banc of the three-judge panel’s decision.

January 28, 2005

Wood, on behalf of the full court of 11 judges, announced that they rejected the petition for re-hearing. Judge Ripple, who is pro-life, recused himself. Judge Manion, Kanne and Chief Judge Flaum voted for re-hearing, three justices short of the six needed for rehearing.

April 12, 2005

Scheidler petitions the Supreme Court for the third time, this time asking for a final ruling on the case in light of the Appellate Court’s rejection of the petition for a re-hearing en banc.

May 24, 2005

Scheidler replies to NOW’s brief of opposition submitted to the Supreme Court in response to the April 12 filing.

June 28, 2005

In it’s final action of the 2004 term, the Supreme Court grants Certiorari to Scheidler’s appeal. NOW v. Scheidler heads to the Supreme Court for the third time, with briefing and oral arguments held over until the Fall 2005 term. Later, a date of Nov. 30 is set for hearing oral arguments.

November 30, 2005

The Supreme Court hears oral arguments in Scheidler v. NOW (or Scheidler III), with Alan Untereiner arguing for petitioners (Scheidler et al.), Duke law professor Erwin Chemerinsky arguing for respondents (NOW and the abortion clinics) and Solicitor General Lisa Blatt arguing on behalf of the U.S. government in support of Scheidler. Questions and comments from the Justices strongly suggested a pro-life victory when the court releases its decision in early 2006.

February 28, 2006

The Supreme Court issues a unanimous decision in favor of Scheidler et al., ruling that the Hobbs Act cannot be construed to provide a general remedy for violence or threats of violence that impact interstate trade; the Hobbs Act encompasses such acts only when in furtherance of robbery or extortion. (The Court had already decided in 2003 that Scheidler and the other pro-life defendants were not guilty of extortion.)

The 8-0 decision was written by pro-abortion judge Stephen G. Breyer. Justice Samuel Alito, who was not on the court at the time oral arguments were heard, did not participate in the decision.

June 8, 2006

One day short of the twentieth anniversary of the original 1986 filing of NOW v. Scheidler, the parties met for a hearing in Judge David Coar’s federal district courtoom. Though Judge Coar said he was ready to sign the judgement that would formally end the case once and for all, NOW attorney Fay Clayton prevailed upon him to continue the case until June 22, saying that she had not had time to consult with her clients, the abortion clinics.

However, Judge Coar did sign an order releasing Scheidler’s home—which had been placed in escrow to fulfill the obligations of the bond appeal—and papers were filed later that day transferring his Chicago home back into his own name.

May 1, 2007

Judge David Coar denied the Motion of Randall Terry to set aside his Settlement Agreement with NOW, based on the Supreme Court decision in NOW v. Scheidler.

May 8, 2007

Judge David Coar issues his Final Judgment in favor of the Scheidler petitioners, reversing his 1999 Judgment and vacating his nationwide Injunction.

March 13, 2012

U.S. District Judge Charles Norgle rules that Scheidler and the Pro-Life Action League are entitled to petition the court for recovery of costs incurred during the course of the lawsuit.

May 9, 2013

Judge Charles Norgle awards most of the costs requested by Scheidler and the League. In a very detailed opinion, he denies several hundred dollars of costs, but rules that the defendants were entitled to $63,391.45.

July 1, 2013

NOW appeals Judge Norgle’s ruling to the U.S. Court of Appeals for the Seventh Circuit.

November 20, 2013

Attorneys for Scheidler and the League file a brief defending their submission of costs.

January 6, 2014

NOW responds to the brief filed by Scheidler and the League.

April 18, 2014

Attorney Ariel Lavinbuk of the firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, which had handled oral arguments of the case in the U.S. Supreme Court in 2002 and in 2005, presents oral arguments on behalf of Scheidler before the Seventh Circuit panel of Judges William Bauer, Frank Easterbrook and David Hamilton.

April 29, 2014

The U.S. Court of Appeals for the Seventh Circuit issues a unanimous opinion, written by Judge Frank Easterbrook, finding for Scheidler and the League. Judge Easterbrook concludes his opinion with this comment, “This litigation has lasted far too long. At last it is over.”

June 26, 2014

Fay Clayton, attorney for the National Organization for Women issues a check for $63,391.45 “for costs due to defendants,” as ordered by the Seventh Circuit Court of Appeals, thus concluding the NOW v. Scheidler saga.

More on NOW v Scheidler

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