N.O.W. v. Scheidler

Landmark Case in American Law and in the Pro-Life Movement

N.O.W. v. Scheidler –

Three Trips to the U.S. Supreme Court, and Final Victory After 28 Years!



It Took An Unprecedented Three Full Dress Hearings Before the U.S. Supreme Court To Defeat The Abortion Industry’s Misuse Of Federal Antitrust, Racketeering, And Extortion Laws To Suppress Pro-Life Activists All Across The U.S.

An Aggressive, Protracted Defense of the Marathon LitigationN.O.W. v. Scheidler, brought about the birth of our Thomas More Society in March, 1997 – some fifteen years ago – just a few months after Tom Brejcha, partner in a Chicago law firm (whom Americans United for Life, “AUL,” had asked to lead the defense back in 1986) was told by his managing partner at a firm meeting that he would either have to “quit the case or quit the firm.”  


Prospects for the defense back then were as grim and gloomy as could be.  But perseverance and aggressive lawyering efforts ultimately were rewarded.  Indeed, the case will go down as a landmark in the annals of American law, having gone before the U.S. Supreme Court for full dress briefing, hearing, and disposition three times! The first appeal, brought by the other side after we had managed to win a dismissal of all charges in the lower courts, culminated in a disastrous 9-0 loss in 1994 for us, when the Justices reversed the lower courts’ rejection of the racketeering (RICO) and extortion claims, which were sent back down for trial. But we won the last two Supreme Court appeals, by decisive, “bipartisan” margins of 8-1 (2003) and 8-0 (2006).


These high Court arguments were occasions of great drama.  For example, flash back to late 2005.  Just two days before the N.O.W. v. Scheidler case was argued for the third time before the U.S. Supreme Court, a large piece of Vermont marble had fallen from the magnificent façade over the main entrance to the Supreme Court building, shattering on the steps near visitors waiting to enter. No one was hurt. It had fallen from just above the sculpted figure representing Authority, near the peak of the building’s pediment, and just to the right of the figure representing Liberty — cradling the scales of justice on her lap.


Dawn broke on November 30th in a blaze of sunshine. The Court’s main entry was closed, so spectators for N.O.W. v. Scheidler and the second case scheduled for argument, Ayotte v. Planned Parenthood, the first true “abortion case” at the high Court in many years—lined up at the two side entrances. Out in front, a row of solemn sentinels — young men and women — stood mute before this great edifice with tape over their mouths to represent the many millions of infants silenced by abortion. Pro-abortion groups chanted slogans while clusters of Christians prayed on the sidewalk. Media set up a forest of cameras and microphones. Susan Hill, co-owner of the chain of abortion centers that had joined N.O.W. (National Organization for Women) in filing the Scheidler lawsuit in 1986, emerged from her black limousine, accompanied by her “bodyguard.” Just a few weeks before this time, another one of Ms. Hill’s abortion centers, the Summit Women’s Health Organization in Milwaukee, Wisconsin, had shut down permanently.


“Scheidler I” — The genesis of NOW v. Scheidler traces back to June, 1986, when it was first filed in Wilmington, Delaware. Later the lawsuit 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 for years in Florida for pulling the plug on a suction machine.


The plaintiffs’ antitrust claim was that Scheidler had authored a book entitled Closed: Ways to Stop Abortion (1985), in which he urged that pro-life citizens undertake a national crusade to “shut down” the entire abortion industry. This was a wholly legitimate goal clearly analogous to the goals of those who urge boycotts or legal bans against the commercial sale of morally objectionable products or services (e.g., gambling, tobacco, 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 (abortion) market. The antitrust laws were clearly intended to regulate economic behavior within lawful markets, not moral and political efforts to get entire markets themselves legally banned or boycotted on public policy grounds. But it took five years to persuade the federal trial judge to throw out this spurious antitrust claim.  Then N.O.W. and the abortion plaintiffs 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 — each pro-life “sit-in” or “rescue” 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’ abortion 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 in this case. 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 ever attempted, much less achieved.


Finally, in May, 1991, we convinced our first trial judge to throw out both the antitrust, RICO, and extortion claims as legally baseless.  The dismissal was affirmed by the court of appeals without a single judge dissenting.  Our opponents appealed to the U.S. Supreme Court, which declined to review the antitrust dismissal—signaling our final defeat of that claim. But the high Court did agree to hear the abortionists’ appeal of the RICO and extortion dismissal. In January, 1994, the Justices reversed the dismissal and we lost 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 by 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 down for trial in spring and early summer, 1998.  Our witnesses included Norma McCorvey, the “Jane Roe” in Roe v. Wade; Sandra Cano, the “Mary Doe” in Doe v. Bolton, (Roe’s companion case); the late revered pro-life Congressman Henry Hyde, then chairman of the House Judiciary Committee; Dr. Jack Willke, head of the National Right to Life Committee; and many other prominent pro-life figures.


Throughout the trial, the District Court Judge was antagonistic toward us, threatening defense counsel, Tom Brejcha, with citations for contempt of court five times and even threatening to hold Dr. Willke in contempt when he tried to give entirely truthful answers instead of just answering “yes” or “no.”  The Judge rejected our extortion defense, approving jury instructions whose terms cast such a wide dragnet under RICO that would have rendered Dr. Martin Luther King and his Southern Christian Leadership Conference (SCLC) “racketeers,” if Dr. King had lived past 1970, when RICO was passed by Congress and signed by President Nixon.  Our appeal drew a hostile 3-judge panel headed by a Clinton appointee who had been a N.O.W. member before she was appointed to the court. (We only found this out much later). The panel affirmed the trial judge and commended him for his “fairness” in his rulings against us.


“Scheidler II”— Those were the dark days in the wake of September 11, 2001. But we persevered, and we also prayed. Our last-ditch petition for Supreme Court review, bolstered by a broad coalition of other activist groups (including Dr. King’s SCLC), was granted on a wonderful day in April, 2002!


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 verdict, judgment, and nationwide injunction – which arguably applied not only to the named defendants but also to those unnamed persons in “active concert or participation with the defendants,” whom plaintiffs claimed included as many as a million persons, “must be reversed” and “must necessarily be vacated.”


The defense prevailed in Scheidler II largely because we had won support from a broad range of allies whose own protest activities were jeopardized by the threat of ruinous civil litigation, or even federal criminal charges, brought under RICO. We traveled far and wide in the effort to win support from these amici curiae, or “friends of the Court,” who filed or joined briefs in support of the pro-lifers’ appeals.  Groups from all over the political spectrum supported our advocacy, including, among many others, Fr. Daniel Berrigan, Pax Christi USA, Sr. Helen Prejean, Not Dead Yet, Martin Sheen, Sojourners, Feminists for Life, Voices in the Wilderness, Catholic Peace Fellowship, Consistent Life, Agape, Catholic Worker, 8th Day Center for Justice, PETA, Nevada Desert Experience, Peter Maurin Center, Witnesses for Reconciliation, Plowshares, as well as others.


Our having won support from Dr. King’s SCLC  and other civil rights groups and leaders prompted Justice Ruth Bader Ginsburg to ask Solicitor General Ted Olson (the lawyer who won the case, Bush v. Gore, which decided the 2000 federal presidential election and propelled George W. Bush into the White House), who was arguing against the pro-lifers on the key liability issue in the appeal, “Mr. Olson, could your legal theory about the use of RICO against protest groups have been used against the civil rights protesters back in the 1960s”?


Olson had to answer, “Yes,” and it was at that point that Tom Brejcha recalls that he knew the case would be won. In fact, Justice Ginsburg, joined by Justice Breyer, filed a separate concurring opinion in support of the pro-lifers’ victory in the second of the three Scheidler Supreme Court appeals, handed down in 2003, and she quoted this exchange with Ted Olson in a footnote in that concurring opinion.


“Scheidler III” — The case should have been over at that point.  But abortion cases are notorious for what we’ve come to call their “distortion factor.”  Incredibly, the court of appeals panel (led by the former NOW member Judge) seized on a frivolous contention that the Supreme Court purportedly had overlooked four findings contained in the complicated jury verdict form used at the trial. The panel then took the drastic step of reviving the RICO case, ordering further proceedings against our clients before the same antagonistic Trial Judge who had presided over the earlier trial—as if throwing the dice on a gambit that the Justices of the Supreme Court wouldn’t dare hear an unprecedented third appeal in the same case. We took collective deep breaths, gritted our teeth, and filed that third appeal. Mirabile dictu! The Justices granted review a third time!


This Appeal Was “Déjà Vu All Over Again”!This time the Supreme Court ruling was unanimous, 8-0 (Justice O’Conner having retired, and Justice Stevens, the lone dissenter in 2003, now joining the majority) to the effect that our pro-lifers deserved to win, period!


Professor Chemerinsky Gets Pummeled —At oral arguments Justice O’Conner said that she was “disturb[ed] to think that some court below deliberately was trying to defy what this Court said.” Justice David Souter said to Duke Law Professor Erwin Chemerinsky (who argued for the other side), “We made it clear. We said expressly, that the judgment had to be reversed, which seems to sweep everything within it doesn’t it?” When Chemerinsky disagreed, Justice Souter retorted, “[I]f the question is, ‘Did the Seventh Circuit honor the judgment of this Court?,’ I think there’s a pretty good argument that…it did not, based upon the fact that we, in effect, summed up everything we were purporting to say with the phrase that the judgment itself had to be reversed.” Justice Roberts also said the ruling was clear: “[I]t says…all the predicate acts supporting the jury’s findings of a RICO violation…so, it’s quite clear what ‘all’ meant.” Justice Scalia scoffed at the suggestion that the trial judge “becomes a second fact finder, and …he can pick…perhaps four [findings] that the jury had not picked…and …contradict the jury.” Justice Scalia further complained that the lower court “interpreted ‘reversed’ to mean ‘remanded.’” Justice Ginsburg criticized the lower court for assuming “that this Court has an obligation to reason why” it gives an order. Even the lone Scheidler II dissenter, Justice Stevens, emphasized the Supreme Court’s mandate, “We also actually entered a mandate too.”


So, it was clear, victory went to Scheidler and the lawsuit was over, once and for all!  And yet, over two and a half decades after the case was first filed, the federal district court in Chicago still had to weigh our claim for compensable “costs” for having endured and finally prevailed after so many years of nationwide class action litigation.


Final update: 

On April 29, 2014, the Seventh Circuit ruled decisively that Plaintiffs  must cover the costs that had been awarded by Judge Coar in May of 2013 to the Thomas More Society as a result of the lawsuit from the National Organization for Women and the abortion clinics that sued Scheidler in 1986. The Seventh Circuit closed its decision in favor of the pro-life defendants by saying “This litigation has lasted far too long.  At last it is over.” Now it really is over, once and for all!


Read the Seventh Circuit’s final decision here.