"Pro-life action news: Mark Wednesday, Feb. 26, in red letters because it is one big red letter day for the pro-life movement. We were having a slice of cherry pie for breakfast when we got word that the U.S. Supreme Court had ruled 8 to 1 that we are not racketeers."
With these words, Joseph M. Scheidler announced victory over the National Organization for Women and other pro-abortion forces in a case that had lasted 17 years and come to symbolize the struggle between the culture of life and the culture of death. Hanging in the balance was nothing less than the good name of the pro-life movement. Scheidler and his Pro-Life Action League are now using the victory to infuse new energy into the movement against abortion.
The decision, written by Chief Justice William H. Rehnquist, not only vindicates the peaceful protests of pro-lifers who pray, counsel, or picket outside clinics. It also protects social protestors and civil-rights activists of all stripes from crippling lawsuits brought under the Racketeer Influenced and Corrupt Organizations (RICO) act. Recognizing the threat the case posed to practitioners of all sorts of civil disobedience, a number of organizations that are far from being pro-life filed amicus briefs on Scheidler's side. The day after the decision, a Chicago Tribune editorial described it as a victory for free speech.
Conscious of its image as a champion of free speech and civil rights, NOW long ago posted a Q & A about the case on its website to appease liberal supporters. The lead (leading) question says it all: "Are Scheidler's protests like those of the Civil Rights movement . . . or the Ku Klux Klan?"
With such rhetoric hurled at him, Scheidler was proud to state after the Court's decision: "It's nice to know the First Amendment is still in force, even for pro-lifers in this country."
A Man for Many Seasons
Colorful, quotable, and irrepressible, Joe is known among his supporters as the grandfather of the pro-life movement. Yet to NOW and other pro-abortion forces he is not a grandfather but a godfather mobster in the mold of fellow Chicagoan Al Capone. NOW brought civil charges of extortion under RICO--and used images of Scheidler sporting his signature black hat and bullhorn to back up the portrayal of him as an anti-choice gangster. NOW also presented spurious testimony to associate Scheidler with every act of violence ever committed against an abortion clinic or an abortionist. (This journal has covered the case extensively, with a forum on the use of RICO in Summer 1998 and a study of the questionable testimony in Fall 2000.)
Scheidler never let his opponents stop him, although every aspect of his personal and professional life was placed under a microscope and he was threatened with bankruptcy. His suburban Chicago house was placed in escrow to enable him to post a $440,000 bond while appealing a lower-court judgment. Throughout the legal ordeal that began in 1986 he was active at the clinics, counseling, praying, and persuading women to turn away from abortion. He even played with the mobster image, continuing to wear his black hat and introducing himself at rallies as a "racketeer for life." In November 2002--with oral arguments before the Supreme Court scheduled for December, a time when most appellants would shy away from controversial actions--Scheidler was making waves in the media and abortion capital of New York, helping to launch a campaign in which pro-lifers hold up posters of aborted babies in high-traffic areas. It was more than simply (and literally) an in-your-face tactic. Scheidler wanted to dramatize his belief that the charges against him amounted to a phantom case that could not be taken seriously.
"The case didn't slow us down," he reflected a few days after his Supreme victory. "I would say that it pepped us up. We didn't know how much time we had before we would be shut down by the courts. We always knew, though, whether it's by us or someone else, the battle goes on because it's right."
"The biggest problem," he continued, "was hiring people for our [Pro-Life Action League] operations because we couldn't guarantee that we'd still be in business the following year. They tried to make me out as the man running all these pro-life operations nationwide. It was very flattering, but it just wasn't true."
In a victory letter to friends and supporters addressed to "Dear Fellow Former-Racketeers," he stated, "As much as I have enjoyed being known as a 'racketeer,' I am now happy to have been vindicated."
One of his regular action news updates (phone hot-line messages that he's been composing since 1974) put the Court's decision in perspective: "Abortion will end one day just as surely as the day came when slavery was outlawed . . . Pro-life attorneys think this Supreme Court victory will open new action against other unconstitutional restrictions on pro-life activities. The court must recognize that it is unconstitutional to have special laws against people who disagree with abortion." He cited as examples the federal Freedom of Access to Clinic Entrances (FACE) Act passed during the Clinton years, and the "bubble zones" imposed by local governments that keep even people who are only praying away from clinic doors.
The Hand of God
A former Benedictine, who left religious life before final vows because "I wasn't cut out for obedience," Scheidler attributes victory ultimately to God. "I saw and experienced directly the power of concerted and persistent prayer," he said. "I knew without a doubt that God has His hand in this victory."
Thomas Brejcha, lead counsel for Scheidler's side, also assessed the outcome in very unlawyerlike terms. "We got not a single vote in the [Chicago] Court of Appeals, and we get an 8-1 decision from the Supreme Court," he marveled. "It's a remarkable, a miraculous turnaround."
The case was full of ironic twists. Anyone familiar with the pro-life movement knows that far from having centralized control and powerful bosses, pro-life groups are often hampered by their inability to unite. Yet NOW, in a sense, produced what it condemned. It raised Scheidler to the status of head man in legal proceedings and persuaded other pro-lifers to rally around him. As Joe goes, so goes the movement, many began to think.
Not all, to be sure. In 1999 federal appeals judge David Coar slapped Scheidler and the other defendants, Andrew Scholberg and Timothy Murphy, with a nationwide injunction. With the loose wording of this injunction, anyone working with Scheidler or adopting the methods outlined in his book Closed: 99 Ways to Stop Abortion could have been touched by it. Many pro-lifers shied away for fear of later being collared as cooperators in Scheidler's "network."
But enough others came to Scheidler's side, including brave donors who helped him pay his mounting legal fees. Pro-life leaders who had stood by him from the start were quick to applaud his victory. "This litigation was clearly an attempt by NOW to eliminate pro-life voices from the public square," said Dennis M. Burke, staff counsel for Americans United for Life, also based in Chicago. Judie Brown of American Life League called Scheidler a good friend "who has fought valiantly for years."
"This decision is a tremendous victory for those who engage in social protests," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed a brief for Operation Rescue. (A related case, Operation Rescue v. NOW, was included in the decision although Operation Rescue has effectively been out of business for years.) "The ruling clearly shuts the door on using RICO against the pro-life movement."
"Abortion is not just a legal procedure. To groups like NOW it is a sacred ritual," said Father Frank Pavone of Priests for Life. "Their efforts have hit the brick wall of our nation's sacred right of protest. Long live that right!"
Francis Cardinal George of Chicago, who led a prayer vigil with Scheidler's group outside a Planned Parenthood facility shortly after the decision, stated, "If the courts had been used to stop organized sit-ins at lunch counters in the Sixties, there would have been no civil rights movement."
Columnist John Leo pointed out that the American Civil Liberties Union had opposed the passage of RICO from the start, but "they didn't fight it when it was used against pro-lifers."
Editorials in conservative and liberal papers alike applauded the decision. The Wall Street Journal said it upholds 'the right of all Americans, left or right, to protest under the First Amendment.' The Chicago Tribune stated: "No matter where they stand individually on the divisive issue of abortion, all Americans should applaud."
There were 74 amicus briefs filed by groups ranging from labor organizations to "tree-hugging" environmentalists to nuclear weapons protestors to the Seamless Garment Network. Also joining were high-profile Catholics more commonly associated with other issues: Maryknoll Father Roy Bourgeois, founder of the School of the Americas Watch; death penalty activist Sister Helen Prejean; Jesuit Father Daniel Berrigan; and Martin Sheen, known to millions as the President on The West Wing.
Craig M. Bradley, who wrote the brief for PETA, summed the issue up nicely: Scheidler & Company "wanted to shut the abortion clinics down. They didn't want to take them over. Just like PETA protestors might want to shut down an animal-rendering plant, not take it over."
The High Court agreed.
"Obtaining" a Decision
In the end, the 17-year case that made two trips to the Supreme Court was shockingly simple. To violate RICO one must commit a series of specified acts or conspire to commit these acts. Scheidler and his colleagues admitted that they had broken the law--though only laws against trespassing and related minor offenses, which don't qualify under RICO--and that they did so in concert with others with the express intent of shutting down abortion clinics. NOW claimed that by depriving or attempting to deprive clinics of their right to do business, Scheidler et al. were engaged in extortion, one of the criminal acts specified by RICO.
The court stated, "But even when their acts of interference and disruption achieved their ultimate goal of 'shutting down' a clinic that performed abortions, such acts did not constitute extortion because petitioners did not 'obtain' respondents' property. [They] may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received 'something of value from' respondents that they could exercise, transfer or sell."
The court concluded that Scheidler's tactics more nearly constituted coercion, a lesser crime not covered by RICO. "If the distinction between extortion and coercion, which we find controls these cases, is to be abandoned, such a significant expansion of the law's coverage must come from Congress, and not from the courts."
The implications of the case, of course, go beyond semantic distinctions. Although Scheidler was barred from raising a First Amendment defense and NOW tried to narrow the case to anti-abortion activism alone, Scheidler's legal team succeeded in portraying pro-life protestors as being in the mainstream of civil disobedience. During oral arguments, some justices raised the First Amendment themselves, wondering aloud whether the right to free expression would not be violated by a wide application of RICO. "When we heard these statements in defense of our position, we were thinking that maybe we could win this thing," Scheidler recalls.
Justices Ruth Bader Ginsburg and Steven Breyer joined the majority with their own concurring opinion. They noted the chilling effect that NOW's application of RICO could have on all social protest, while at the same time keeping their pro-abortion credentials in order. "In the Freedom of Access to Clinic Entrances Act of 1994 . . . Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. . . . Thus the principal effect of a decision against petitioners here would have been on other cases pursued under RICO." In other words, since we can get pro-lifers on FACE, why risk weakening PETA?
NOW attacked this position in its rants after the decision. "We will work to ensure that the [FACE act] is enforced. But that is not enough," read a press release. "FACE is too limited and doesn't reach the organizers of the violence . . . We are looking at every avenue available to us to protect women, doctors and clinic staff from these ideological terrorists."
In 1994 the Supreme Court allowed the proceedings against Scheidler to continue by ruling 9-0 that he did not need to have an economic motive to be accused under RICO. Why did the court now rule 8-1 in his favor? The technical explanation is that a slightly different legal point was under consideration; the larger implication is that the mood of the court and the nation has shifted slightly toward life. "America, I believe, is on the brink of a new appreciation for the value of human life, especially unborn human life," Scheidler said. "We are on the cutting edge of a subtle but very clear shift in our attitudes."
Characteristically, Scheidler's victory celebration in June was not only for pro-life advocates but for all Americans. Joe is a patriot who loves his country and the freedoms proclaimed and protected by the Constitution. There were U.S. flags as well as prayers at his rally to "Bring America Back to Life."
Alongside Scheidler's populism, NOW and its sister organizations come off as angry and anti-American. The National Abortion and Reproductive Rights League showed a certain Brave New World arrogance in changing its name to NARAL Pro-Choice America. With polls showing increasing numbers of citizens opposing abortion on demand, and more young people coming out against killing unborn babies at any stage, NARAL thinks that by proclaiming America to be "pro-choice" it can make it so.
Yet the liberal tower of "choice" constructed in the Seventies is beginning to totter, as the support base ages and thins. Try as they may to refashion themselves according to the findings of Madison Avenue focus groups, the fact is that the pro-abortion forces are increasingly outsiders whose language and tactics do not resonate with most Americans. A NOW leader's argument against bringing double murder charges to include Laci Peterson's unborn baby is a perfect example of how NOW-style rhetoric has confounded common sense and left pro-abortion forces talking mostly among themselves.
It is far too soon to sound the death knell of the abortion mindset. Yet it may be time to define a new category of American malcontent that has yet to be recognized by the mainstream media. To go with the angry white male, we now have the angry white female. The poster girl, hands down, would be Fay Clayton, NOW's lead lawyer. She demonstrated her graciousness on "The O'Reilly Factor" after the decision. She attacked Scheidler and repeatedly cut off Bill O'Reilly, saying in a dozen different ways that the decision was really not a defeat, that NOW is really not finished, and that FACE gives abortion forces all the power they need to keep anti-choicers at bay. Huff and puff as she may, the Supreme Court decision speaks for itself. The name of the case itself symbolically marks a change in momentum. Though usually called by its original name, NOW v. Scheidler, the case heard by the Supreme Court was in fact the appellate version, Scheidler v. NOW. The tables have been turned on the pro-abortion movement. They've gone from bringing suit to defending.
The future looks bright. Against Roe and its progeny come Scheidler and his: seven children and (so far) 10 grandchildren. Two of his children, Eric, 36, and Annie, 26, work full-time for the Pro-Life Action League. And they are NOW's worst nightmare: educated, energetic, erudite and fully as determined as their dad. Eric, whose wife recently delivered their sixth child, handles communications and the web. Annie heads Generations for Life, which educates and mobilizes young people on abortion and a range of other issues, including chastity.
"Such a complete victory in answer to so many prayers is a tremendous encouragement to our peaceful pro-life activism," Eric Scheidler writes. "NOW's long effort to thwart our pro-life work has never stopped us from saving babies and helping women, but now we are prepared to redouble those efforts."
Read this article in Human Life Review. Reprinting allowed.