WASHINGTON — A 16-year-old case against veteran pro-life activist Joseph Scheidler and his Pro-Life Action League will reach the U.S. Supreme Court this term. This marks the second time NOW v. Scheidler has reached the high court in its long history.

“It started in June of 1986, so for 16-and-a-half years it's been hanging over like the Sword of Damocles,” Scheidler said.

Scheidler, one of the deans of the pro-life movement in America, and his Chicago-based group were targeted in 1986 by an evolving group of lawyers basing their case on evolving legal grounds. The case against him is now based on the civil law portion of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act and the federal Hobbs Act, laws that were meant to target organized crime.

“They're trying to break us. They've said that,” Scheidler said. “They're trying to bankrupt us.” RICO provides for triple damage awards, making losing a RICO case exceptionally expensive.

Scheidler and his wife have been forced to put their house in escrow for the duration of the case. “We could lose our house if we lose the case,” he said.

“There are two legal issues before the court,” said Scheidler's attorney, Thomas Brejcha of Chicago's Thomas More Society. “One is the question of whether peaceable nonviolent direct action constituted the federal felony crime of extortion, so that conducting a ‘pattern’ of such demonstrations violated the federal racketeering law.”

By preventing or delaying the entry of women into abortion clinics, Scheidler said, “we supposedly took their property. We denied the abortionists their fees and the women their ability to get an abortion.”

Brejcha noted that federal law says someone must “obtain” property in order to violate the law. “Here, there was no obtaining of property and, in fact, there was no property,” he said.

In addition, the plaintiff claimed — successfully before a jury in 1998 — that Scheidler, the Pro-Life Action League and co-defendants Andrew Scholberg and Timothy Murphy used “actual or threatened force, violence or fear,” as the Hobbs Act requires.

“They never claimed that I or the Pro-Life Action League did anything violent,” Scheidler said. “They said that I created an atmosphere of fear and intimidation that promoted violence. They said that violent acts committed by other protesters were inspired by me. They made me the kingpin, the capo, of violence.”

The plaintiffs did, however, come up with examples of what they called threats of violence. “I wrote on a card I gave to an abortionist ‘Choose Life,’” he said. “They introduced that as a death threat.”

Brejcha said the Supreme Court would also consider the relatively minor question of whether a private group can obtain an injunction under RICO. An injunction against the defendants prevents them from obstructing abortion clinics.

Oral arguments will be held Dec. 4. A decision will likely be rendered in the first half of next year.

“The Bush administration, while it supports us on the injunction, is against us on the guts of the case,” he said. “They are not exactly supporters of civil disobedience. … We invoke the name of Dr. [Martin Luther] King here because he is recognized as the apostle of nonviolent protest. If we lose this case, similar arguments can be made against any protesters.”

He said the case was not necessarily over, no matter which way the Supreme Court ruled. “If we win,” he said, “there are predicate acts other than extortion [that the plaintiff could use].”

Scheidler said there were other ways for him to challenge the case if the Supreme Court ruled against him this time. “I don't want to get into that now,” he said.

Support for Scheidler

When the case was originally filed, it was handled by lawyers for the Southern Poverty Law Center, not the National Organization for Women (NOW), and was based on antitrust laws, not RICO, Brejcha said. The RICO law argument was added in 1989.

The civil liberties concerns raised by this case have attracted many other groups to Scheidler's side. The Illinois Catholic Conference, the Seamless Garment Network, the Southern Christian Leadership Conference, Martin Sheen, Pax Christi USA and People for the Ethical Treatment of Animals are among those who support Scheidler in the case.

“All of the amici, whether individuals or communities, join this brief because the novel view of extortion expressed by the court of appeals exposes them to liability under the [RICO] act in a manner that they deem clearly at odds with the history of civil disobedience in this country and to the core principle of the First Amendment,” said a large group of supporters who filed an amicus curiae brief.

“Despite a deluge of inaccurate news reports and false claims by the defendants, NOW v. Scheidler is only about whether courts are permitted to prohibit violence and in no way seeks to limit peaceful protest on any issue,” said NOW President Kim Gandy in a statement Oct. 4. “This lawsuit is about the coordinated use of fear, force and violence aimed at the clinics and the women who use them.”

“We wrote an amicus brief in support of the Scheidler side,” said Robert Gilligan, acting executive director of the Catholic Conference of Illinois. “NOW's position is that it's extortion to be protesting in front of abortion clinics. We disagree with that. We believe in free speech.”

Gilligan said the long-running case has been much discussed in Illinois's Catholic circles, and he and other pro-life Catholics there feared a loss by Scheidler. “In terms of being under RICO, they can go after you for triple damages,” he said. “We're concerned about that.”

Scheidler said that although the case has been expensive, he has continued his pro-life activism. “As long as I am still free,” he said, “I will fight abortion.”

Joseph D'Agostino writes from Washington, D.C.