Pro-Lifer Scheidler Won’t be Stopped By Court Defeat
'Racketeering' conviction roundly decried by First Amendment supporters
BY Brian Caulfield
May 3-9, 1998 Issue | Posted 5/3/98 at 2:00 PM
NEW YORK—Two days after being found guilty of conspiracy, extortion, and racketeering by a Chicago federal court, Joe Scheidler was at Villanova University declaring victory for the pro-life movement and vowing to fight abortion “till the day I die.” The pro-abortion groups who sought monetary damages and legal fees against him under the Racketeering Influenced and Corrupt Organizations (RICO) law are on their last legs and will grasp at any straw to stop the effective and life-saving methods of pro-lifers, he said at a conference sponsored by Villanova's pro-life club.
The following day, Scheidler delivered the same message at a pro-life gathering in Minnesota and announced that he will organize a national pro-life convention this summer in Chicago, featuring those who testified on his behalf in the case, National Organization for Women v. Scheidler et al.
“We want to start a new movement of prayer and sidewalk counseling to galvanize and re-energize the movement,” he told the Register. “FACE [Freedom of Access to Clinic Entrances Act] has pretty much ended rescue, that's a thing of the past, so we'll put all our energies into prayer and counseling,” he said, referring to the federal law that imposes heavy monetary penalties and jail time for Operation Rescue-type activities.
He has won the support of a wide range of political commentators, both liberal and conservative, and Cardinal Francis George OMI of Chicago said the archdiocese may file a brief in his behalf.
Scheidler, director of Chicago's Pro-Life Action League, associates Tim Murphy and Andrew Scholberg, and Operation Rescue National were found guilty in the civil suit April 20 by a six-person jury on 21 acts of extortion under RICO, including blocking entrances to abortion clinics, harassing clinic clients, and issuing threats to abortionists in effort to shut down the industry. The defendants are working on post-trial motions and an appeal that they predict will succeed.
They were hit with almost $86,000 in damages against two abortion clinics that stood as plaintiffs and claim to have spent that amount in extra security. Judge David Coar can triple the damages under RICO and slap the defendants with plaintiffs’ legal fees, which amount to more than $1 million in the protracted 12-year trial. As a federally declared racketeer kingpin, Scheidler also may be sued by any abortion clinic in the nation that claims economic injury due to the activities of any pro-life activist who can be linked to the defendants.
He and the other defendants also face a possible “Randall Terry” injunction against all pro-life activities and “disruptive speech” at a June 30 hearing before Judge Coar. Terry, founder of Operation Rescue, was dismissed as a defendant earlier this year for submitting to such an injunction to free himself of legal entanglements during his run for Congress in upstate New York.
Every pro-lifer is in danger of being sued if the verdict is allowed to stand because each one, from rescuer to sidewalk prayer supporter, could be charged as a co-conspirator in Scheidler's “racketeering” enterprise.
G. Robert Blakey, professor at Notre Dame Law School, who was the main author of RICO in the early 1970s, testified at the trial that the law was aimed at organized crime and specifically written to exclude prosecution of conscientious protesters. He argued for Scheidler in 1994 before the Supreme Court, which kept the case rolling by ruling that RICO could be used against demonstrators who do not have an economic motive.
Cardinal George stated that the decision “equates freedom of speech with racketeering” and will have a chilling effect on freedom of speech and religion for those who oppose “the violence of abortion.” The defendants have his prayer and support for their prayerful and non-violent actions and defense of free speech rights, said the cardinal.
In closing arguments April 15 defense lawyer Tom Brejcha pointed out the inconsistencies of much of the plaintiff's evidence, pleaded the right to conscientious protest and read from Martin Luther King's Letter From Birmingham Jail, equating pro-life activists to the civil rights protesters of the ‘60s.
He told the Register that RICO is vague and “tramples the First Amendment.”
First Amendment Threat
In the wake of the trial, Scheidler has received widespread support from the Chicago media and opinion makers across the country who see the decision as a grave threat to First Amendment free speech and association rights that could be used against any group involved in public acts of conscientious protest.
“This is one of the most dangerous decisions that has come down in many years,” said New York Village Voice columnist Nat Hentoff, a staunch First Amendment defender. “If there were ever a case of selective use of a law, this is it.”
Dennis Byrne, a self-described liberal and an editor for the Chicago Sun-Times, pointed out that the pro-abortion feminists who applaud the women who years ago chained themselves outside the door of the Illinois Senate to force passage of the Equal Rights Amendment are the same ones who now proclaim the decision against Scheidler a victory for freedom. Likewise, liberals cheer anti-war activists who chain themselves to the gates of munitions factories or destroy Pentagon property, he said.
“The difference between me and the hypocrites on the left is that I still believe in the necessity of moral protest and civil disobedience,” wrote Byrne. He said that NOW's suit is designed to put such a “fear of destitution into the hearts of people of conscience, that they'll think twice about speaking their minds.”
A New York Times editorial dismissed comparisons to civil rights lunch counter sit-ins, stating, “Those acts of civil disobedience, for which many went to jail, did not involve threats of violence or attempts to destroy the businesses.”
Hentoff, who was involved in some of those ‘60s demonstrations, told the Register that the Times is blind to civil rights abuses when abortion is involved. King and others “engaged in serious sitins” that were designed to close down restaurants in the South unless blacks were admitted on an equal basis, he said.
Scheidler told the Register that he “sat down” with King in Montgomery, Ala., during a civil rights protest.
“That was okay then, but if you're doing it to try to save babies, then you're a racketeer,” he said.
Rep. Henry Hyde (R-Ill.), chairman of the House Judiciary Committee, testified at the trial that Scheidler was acting within the bounds of American political tradition in breaking a minor law like trespassing to pursue the greater good of saving unborn babies from abortion. If such heroic action had been taken by German citizens in World War II, he said, the atrocities at Dachau and Auschwitz may never have occurred.
NOW lawyers tried to lessen the weight of Hyde's testimony by asking that he not be referred to in court as “congressman” or “honorable.” The judge ruled in their favor and Brejcha was restricted to calling him “Mr. Hyde,” a name that NOW lawyers slyly associated with “Dr. Jekyll” in cross examination. Brejcha did manage to get the congress-man's title on the record, however, by simply asking what he did for a living.
The defense was hamstrung by such restrictions throughout the seven-week trial. Norma McCorvey was prohibited by the judge from mentioning anything about her role as “Roe” in Roe v. Wade, and Sandra Cano was likewise not identified as the “Doe” in the 1973 companion case, Doe v. Bolton. Both women are ardently pro-life and could have given eloquent accounts of how they were used and discarded by pro-abortion advocates seeking legalization of abortion.
“I was under a gag order about who I was,” McCorvey said in a Register interview from her home in Texas. “If that had been told to the jury that would not have been good for the pro-aborts.”
Joan Andrews Bell, originally named as a defendant in the case, said that she was deeply saddened “by the grave injustice against a great pro-lifer.”
Her husband, Chris Bell, who runs four homes for unwed mothers and their babies in New York, called the suit “a last gasp of the evil of the other side trying to prevent the successful work of pro-lifers.”
Professor Blakey thinks Scheidler has a good chance on appeal. He said Judge Coar did not instruct the jury carefully and the verdict was almost inevitable given the one-sided presentation. He added that RICO was rewritten in the early 1970s after Sen. Edward Kennedy (D-Mass.) objected that the law could be used by the Nixon Administration to go after anti-war demonstrators. The law as passed includes four areas of offense—murder, kidnapping, arson and extortion—and the last one does not include the acts that Scheidler and the others have been charged with, said Blakey.
“Extortion is a technical legal term which refers to a property offense,” he said. “To be guilty of extortion, the person has to get—to obtain—the property in question, not just destroy it or not just cause someone to lose income as a result of an action.”
He said that to block entrances and dissuade women from going into clinics is a form a coercion, a petty offense that Judge Coar “has morphed into extortion,” a federal offense. “He's rewritten the statute in a way Congress did not want it written. It's outrageous.”
A 1981 Supreme Court decision, NAACP v. Clayburn, should be cited as a precedent in the appeal, said Blakey. In the case, the court upheld the legality of a well-orchestrated boycott that was designed to coerce a store into hiring black employees.
Redemptorist Father Richard Welch, who recently had a five-year RICO case against him dropped in Puerto Rico, said the NOW suit is “part of a massive campaign to silence the pro-life movement.”
Father Welch, president of Human Life International, said the “co-conspirators” in the campaign are “the judicial and legislative branches of government, together with the captive liberal media, [who] are pawns of the abortion industry.”
The priest was arrested eight times for rescues in Puerto Rico but was never convicted. The Center for Reproductive Law and Policy in New York City represented three abortion clinics seeking $1.2 million in damages against him. Pointing out that the Church and bishops in Puerto Rico and his religious superior were originally named in the RICO case, Father Welch said the suit was brought as a form of intimidation.
Brejcha, who was threatened with contempt many times for using words the judge had banned, will wait until after the June 30 injunction hearing to file an appeal. Meanwhile, he has filed for a mis-trial and entered motions for the judge to dismiss the verdict. One point of motion, he said, is that NOW lawyers made repeated references to bombings and shootings during the trial and in closing arguments, which the judge had ruled out in pre-trial hearings.
“Our clients’ positions were stigma-tized repeatedly during the trial,” he said. A letter Scheidler had written against a statement of the late Cardinal Joseph Bernardin was highlighted to make Scheidler appear at war with his own Church, but the judge did not allow the chancellor of the Chicago archdiocese to testify that Scheidler was given a pro-life award from Cardinal Bernardin.
Whether the appeal succeeds or not, Scheidler protected himself against monetary damages years ago by divesting himself of all property and assets.
“I can't in conscience give a nickel to an abortionist. I'll be a pauper all my life,” said the one-time Benedictine monk.
Never one to lose his sense of humor, he added that the examination of his every word and action during the past 15 years was “like a rehearsal for the Last Judgment.”
Brian Caulfield writes from New York.
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