By Michelle Martin
Staff writer

Anti-abortion activist Joe Scheidler has been a lightning rod for controversy in the highly charged debate. But whether they agree with him or not, activist groups of all stripes have lined up in support of the landmark Scheidler vs. the National Organization for Women case now before the U.S. Supreme Court.

Joe and Ann Scheidler could lose hundreds of thousands of dollars and their home. Activist organizations could lose the ability to protest perceived injustices.

The U.S. Supreme Court was to hear oral arguments in the case Dec. 4, shortly after this issue of The Catholic New World went to press. The case is making a second trip to the high court 16-plus years into its legal lifetime.

The issue goes beyond pro-life matters: labor organizations, People for the Ethical Treatment of Animals, traditional pro-life groups, School of the Americas Watch founder Maryknoll Father Roy Bourgeois and death penalty activist Sister Helen Prejean, a Sister of St. Joseph, were among the 74 people or organizations that either filed or joined in others’ briefs in the case.

Just one brief, from the Seamless Garment Network, includes signatures from the Southern Christian Leadership Conference, peace activists Voices in the Wilderness and Vieques Support Committee.

At issue is when and if protest activities can become extortion and whether the courts can bar organizations from further protest activities at the request of private plaintiffs.

“If you can’t protest an injustice—and we certainly think abortion is an injustice—then it would affect anybody,” Scheidler said. “That’s what’s making them nervous.”

Alan Untereiner, the Washington D.C. lawyer who was to argue the pro-lifers’ case, said that under the district court’s ruling, the students who staged sit-ins to integrate Southern lunch counters in the 1960s could have been charged with extortion.

That’s true, said Craig M. Bradley, a professor at the Indiana University School of Law who wrote a brief supporting the pro-lifers for PETA.

“Even if NOW loses this case, it won’t have much of a practical effect on (pro-life protestors),” Bradley said. “This case will have more of an effect on a group like PETA.”

That’s because the Freedom of Access to Clinic Entrances Act of 1994—passed eight years after this case started—bars many of the actions covered in the case specifically when it comes to protests at abortion clinics.

The fear of the other groups who filed briefs in the case is that those actions could be seen as illegal in all kinds of political protests.

In the PETA brief, Bradley joined in the pro-lifers’ argument that what they did could not be considered extortion under the federal law, because the law talks about “obtaining” property by threat.

“They wanted to shut the abortion clinics down,” he said. “They didn’t want to take them over. Just like PETA protesters might want to shut down an animal-rendering plant, not take it over.”

In the Scheidler case, it was considered enough that pro-life protesters separated clinics and their patients from their property—whether by blocking patients’ access to services or forcing clinics to spend money on repairing facilities and hiring security guards. But none of that enriched any pro-life activist.

The case began in 1986, when the National Organization for Women and two abortion clinics filed a federal lawsuit claiming that the Pro-Life Action Network, a loose organization of pro-life groups, had interfered with interstate commerce by stopping women from using the services of the clinics. Eventually, the suit was modified to claim that the defendants had created a criminal conspiracy under federal racketeering laws, most often used to go after organized crime figures.

The network, which included Scheidler’s Pro-Life Action League and Randall Terry’s Operation Rescue, offered seminars on how to protest, including ways to get clinic workers to quit and patients to leave without entering the clinics. It also offered a newsletter and hotline to keep members abreast of upcoming protests—several of which ended up including violent incidents, from pinning workers against a clinic building to entering clinics and damaging equipment.

In one key incident, Scheidler sent letters to every clinic in the Chicago area in December 1985, asking them to shut down for a particular day and warning that non-compliance would mean they would be the subject of unspecified “non-violent direct action.”

When the case was first heard, the federal district court and the Chicago-based 7th Circuit Court of Appeals agreed with the pro-lifers’ argument that since they had no economic motive, their actions were not covered by racketeering laws.

But in 1994, NOW’s appeal reached the U.S. Supreme Court, which ruled that no economic motive is necessary for racketeering. In a concurring opinion, Justice David Souter wrote, an “economic motive requirement would protect too much with respect to First Amendment interests, since it would keep RICO from reaching ideological entities whose members commit acts of violence we need not fear chilling.”

With those comments, the court unanimously sent the case back to district court, where a jury awarded $258,000 in damages to two clinics and the judge issued a permanent injunction, barring the defendants from trespassing on, blocking access to or committing acts of violence at clinics. The pro-lifers would also be liable for all of NOW’s legal bills, for which they as yet have no estimate.

Defendants in the case who appealed to the Supreme Court include Scheidler, Andrew Scholberg and Timothy Murphy, as well as the Pro-Life Action League and Operation Rescue. Terry settled in 1998 and is no longer part of the case.

According to the Pro-Life Action League, the injunction specifically permits carrying picket signs, praying, making speeches, speaking to individuals approaching clinics and handing out literature, as long as those activities take place on public property. The league objects to the injunction, according to its Web site, “because, although it sounds like (it prohibits) activities we do not do anyway, the language is vague and it is possible to interpret sidewalk counseling as ‘interfering with’ a woman’s access to a clinic or ‘harassment’ of a client.”

“It’s unfair, and it’s very vague,” Scheidler said. “What’s intimidation? Is handing someone a leaflet intimidation?”

The defendants’ appeal said that under the RICO law, courts cannot grant injunctions to benefit private plaintiffs; that their activities are not extortion under federal law; and that the injunction violates their First Amendment right to free speech.

The Supreme Court turned down the First Amendment appeal last spring, letting stand a 7th Circuit decision saying the First Amendment does not protect threats or violence. But it will take up the other two issues.

Margaret Connolly, acting director of the Archdiocese of Chicago’s Respect Life Office, said she fears a chilling effect on pro-life activists if the Supreme Court upholds the lower court’s ruling, although she noted that the church has always spoken against any violent protests.

Scheidler and his co-defendants never directly advocated violence or made threats of illegal activity, she said. They were sued under RICO, she said, because they—as the title of Scheidler’s book, “CLOSED: 99 Ways to Stop Abortion,” acknowledges—want to put abortion providers out of business. But doing so by legal means shouldn’t be illegal, Connolly said.

“Apparently, that can be construed as a type of extortion,” she said. “It’s almost guilt by association, that these gatherings of people somehow encouraged people to resort to violence.”

Indeed, Scheidler said, the district court ruling found him and his co-defendants liable for scores of instances of extortion, but never specified exactly what they did wrong.

“It is so vague to me why I’m a convicted federal racketeer when I haven’t made one nickel, I haven’t threatened anyone, I never extorted anything,” Scheidler said.

Chicago attorney Jim Geoly, who wrote a brief for the Catholic Conference of Illinois, said it’s difficult to separate the extortion issue and the injunction from the First Amendment issue, even though the court decided not to take up Scheidler’s claim that the ruling violates the right to free speech.

In previous cases, the court has ruled that protesters’ free speech rights can’t be curtailed, even if some incidental violence occurs at a political protest, Geoly said. The ruling under appeal seems to fly in the face of that, and it will definitely have a chilling effect, he said.

“No one’s going to organize an abortion protest if you’re going to lose your house if three guys decide to throw rocks,” he said.

Scheidler said he expects the justices themselves to bring up First Amendment questions.

“There’s almost no way you can dodge it,” he said.

But for Bradley, the justice’s decision to listen to the appeal on the extortion and injunction grounds seems to be a positive omen. If the court rules that there can be no extortion if the alleged racketeers did not receive anything from their crimes, he said, then there was no violation of the racketeering law and the case can be overturned.

“I don’t see how they could uphold it without considering the First Amendment issues,” he said.

Whatever happens, Scheidler said, he will not be beaten.

“I’ve been fighting this for more than 20 years, and I’ll keep fighting,” he said. “Even if NOW wins and they take my home and my business, they’ll lose, because I’ll keep fighting from a tent if I have to.”