Sir Thomas More, portrait by Hans Holbein

About NOW v. Scheidler

N.O.W. v. Scheidler is still pending as the federal court weighs our claim for compensable “costs” for more than 21 years of nationwide class action litigation. The case's genesis traces back to June, 1986, when it was first filed in Wilmington, Delaware. Later it was transferred to Chicago. The original suit—filed by Morris Dees and his Southern Poverty Law Center for the National Organization for Women (N.O.W.) and two abortion providers in Delaware and Florida—asserted a federal antitrust “class action” claim for all abortion providers and all women seeking access to abortion in the entire United States. Defendants were Joseph Scheidler and his Chicago-based Pro-Life Action League, St. Louis pro-lifers, and pro-life heroine Joan Andrews who had been jailed in Florida for pulling the plug on a suction machine.

The thrust of plaintiffs' antitrust claim was that Scheidler had authored a book entitled Closed: 99 Ways to Stop Abortion (1985), in which he urged that pro-life citizens actively campaign to “shut down” the abortion industry. This was a wholly legitimate goal clearly analogous to the goals of those who urge fellow citizens to boycott or win legal bans against the commercial sale of products or services deemed morally objectionable (e.g., assault rifles or other firearms, tobacco, illicit narcotics, pornography, body parts, foie gras, etc.). Yet, Scheidler's advocacy was perversely attacked as “anti-competitive,” i.e., as a conspiracy to achieve an “unreasonable restraint of trade” in a lawful market.

The antitrust laws were clearly intended to regulate economic behavior within lawful markets, and not moral and political efforts to get markets legally banned or boycotted on public policy grounds. But it took us five years to persuade the federal trial judge to throw out this baseless antitrust claim. Meanwhile, N.O.W. and the abortion providers also had amended their complaint to add new defendants (Randall Terry and his “Operation Rescue,” a campaign of peaceful civil disobedience) and new claims under the federal extortion and racketeering (RICO) laws.

In a nutshell, the RICO claim was that pro-life sit-ins or “rescues” constituted the federal felony crime of extortion. But federal law defines “extortion” as “obtaining” of “property” of another by means of actual or threatened force, fear or violence. Clearly, pro-life “rescuers” who peacefully blocked the doors to abortion providers weren't trying to obtain anybody's property, let alone the providers' business. And contrary to plaintiffs' propaganda, there was no valid or credible evidence of actual physical violence on the part of pro-life defendants. The few pro-life activists (e.g., Paul Hill) who espoused or engaged in violence were never sued. The only real “force” involved in Operation Rescue was what Gandhi called “truth force” or “soul force”—a self-sacrificial surrender of one's body intended to melt hearts, not break heads. Like the sit-ins of the 1960's civil rights activists, whose tactics Dr. King celebrated in his classic April, 1963, Letter from Birmingham Jail as “peaceable, nonviolent direct action,” the pro-life rescues were peaceful and no “obtaining” of “property” was attempted, let alone achieved.

Yet it took us until May, 1991, to convince our first trial judge to throw out both the antitrust and RICO claims as legally baseless. Dismissal of the entire case was affirmed by the court of appeals, without a single appellate judge dissenting. Our opponents appealed to the U.S. Supreme Court, which declined to review the antitrust dismissal—sealing our final defeat of that claim. But the high Court did agree to hear the abortionists' appeal of the RICO dismissal. In January, 1994, the Justices reversed the RICO dismissal by a 9–0 vote. Chief Justice Rehnquist wrote for the Court that the trial judge's rationale—that RICO did not apply to non-economic protesters—was overbroad as non-economic “enterprises” could be misused by “racketeers” and should be exposed to RICO suits. The Court didn't reach our principal defense that the “extortion” claim underlying the entire RICO case was fatally flawed.

The case went back to district court for trial in spring and early summer, 1998. The district court rejected our extortion defense, instructing the jury in terms casting such a wide dragnet under RICO as would have rendered Dr. King a “racketeer.” Our appeal drew a hostile 3-judge panel whose head, a Clinton appointee, had been a N.O.W. member before she ascended the federal appellate bench. (We only found this out much later.) The panel affirmed the trial judge and commended him for ruling against us.

Those were dark days in the wake of 9/11/01. But we persevered. Our last-ditch petition for Supreme Court review, supported by a broad coalition of other activist groups including Dr. King's SCLC, was granted. Then after further briefing, the Justices ruled for our side, 8–1! The Chief Justice wrote in the Court's majority opinion that the RICO judgments “must be reversed” and “must necessarily be vacated.” The case was over. But the court of appeals panel seized on a frivolous contention that the Supreme Court had overlooked a few findings at the trial. Incredibly, the panel revived the RICO case, ordering further proceedings against our clients—as if throwing the dice on a gambit that the Justices wouldn't dare hear an unprecedented third appeal in our case. We took collective deep breaths, gritted our teeth, and filed that third appeal. Mirabile dictu! The Justices granted review a third time, ruling unanimously, 8–0 (Justice O'Connor having retired) that our pro-lifers deserved to win, period!

Note: The following briefs are in .pdf format and require Adobe's free Acrobat Reader (Most files are LARGE; be patient during download.)

Oral Arguments on the NOW vs Scheidler Case, Heard Before The United States Supreme Court - Dec 4, 2002 (5,921 kb)

In the Supreme Court of the United States. On Writs of Certiorari to the United States Court of Appeals for the Seventh Circuit.

In the Supreme Court of the United States, Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.