WASHINGTON — When Joseph Scheidler left the Supreme Court on Nov. 30, he felt “pretty optimistic” that the nearly 20-year legal battle pitting him and other pro-life activists against the National Organization for Women will end in his favor.
He even dared to hope for a 9-0 victory that would end a nationwide injunction and prevent protesters from being held liable for triple damages under the auspices of the Racketeering Influence and Corrupt Organizations statute.
“Our lawyers were really upbeat about it because the justices had done their homework. They really understood the case,” Scheidler, who heads the Pro-Life Action Network, said.
“I think the court was receptive to our argument and gave the other side a difficult time,” added Alan Untereiner, who argued on behalf of Scheidler.
The justices were particularly interested in why the case was before them for an unprecedented third time when in their 2003 ruling, they had explicitly reversed the decision of the 7th Circuit Court of Appeals in Chicago. They also were concerned about the chilling effect the consolidated Scheidler v. NOW and Operation Rescue v. NOW could have on protest activities by any group, not just organizations in the pro-life movement.
At the heart of the matter is whether the tactics used by anti-abortion protesters can be equated to the mafia-like crimes traditionally prosecuted under the anti-racketeering law and the associated anti-extortion Hobbs Act. Extortion generally implies an exchange of money or property under the threat of violence. One of the remaining questions in front of the court is whether the protesters’ activities could be classified as extortion despite the absence of financial gain.
“The theory of NOW was that sitting down in front of a clinic is an act of physical force,” Thomas Brejcha, an attorney for the Thomas More Society and lead counsel for Scheidler since 1986, said. “The question is whether organized crime encompasses civil disobedience.”
Three years ago, the Supreme Court seemingly said No. The justices voted 8-1 to reverse all of the so-called predicate acts that the lower court said violated the anti-racketeering law and ordered that the injunction be lifted. The 7th Circuit, however, found cause to say that four of these acts had not been considered by the high court.
During oral arguments, the justices wondered whether their original mandate had been disregarded. Justice Antonin Scalia questioned why the 7th Circuit interpreted the order to mean “remand” instead of “reverse.” And, National Organization of Women attorney Erwin Chemerinsky was asked by Chief Justice John Roberts to address why “all” the predicate acts didn't include the four. “The question, of course, is, ‘What does all refer to here?” Chemerinsky said.
“It [was] Clintonese…. The implication is that ‘all’ doesn't mean ‘everything.’ That was really symbolic of their whole presentation that words mean what you want them to mean,” Scheidler said.
Justice John Paul Stevens, the lone dissenter in the 2003 decision, however, asked “Do you think it is conceivable that we just didn't realize those four points were at issue?”
As for the blanket effect the ruling could have on all demonstrations, at least 23 organizations, spanning the political spectrum, including the AFL-CIO, filed friend of the court briefs expressing concern. The justices took note of this.
“Justice [Stephen] Breyer [spoke] very strongly about the AFL-CIO saying that this would jeopardize organized labor and create the possibility that any alleged violence on the picket line could make strikes illegal because they would be prohibitively expensive under the risk of RICO,” Brejcha said.
Scheidler is hopeful that a verdict will be reached sooner rather than later, and said his lawyers estimate six weeks. In the meantime, the injunction remains in place. In addition, anti-abortion protesters already are prohibited under the Freedom of Access to Clinic Entrances Act from “physically” preventing entrance to an abortion clinic. The penalties under that legislation, however, are milder than they would be under the anti-racketeering law.
The National Organization of Women holds that since the injunction was put in place violence at clinics has decreased although protesters have continued to “picket and shout.”
“They want to return to the days of using physical assault to terrorize patients and doctor, in order to shut down these facilities,” Kim Gandy, NOW's president said.
“We hope that the Supreme Court will recognize these crimes for what they are — an organized campaign to stop abortion by closing every clinic that performs them,” she added.
Scheidler said he always has advocated non-violence and weeds out troublemakers.
“We don't even yell. We are trying to win people over,” he said. The anti-abortion protest movement hasn't been slowed down by the injunction or the passage of the Freedom of Access to Clinic Entrances Act, Scheidler added, noting that his demonstrators “saved” seven women outside an abortion clinic recently.
The Pro-Life Action Network, expecting a positive outcome, plans to hold another national convention after the Supreme Court decision.
“We want to have this thing completely settled that we have a constitutional right to do what we are doing and not have the threat of triple damages,” he said. “We are not a conspiracy. The plan is to coordinate peaceful activities that will ultimately impress enough people that abortion is the wrong way to go.”
Monta Monaco Hernon is based in La Grange Park, Illinois.