VOICE OF THE PEOPLE (LETTER)

NOW's arguments

Tom Brejcha, Defense counsel, NOW vs. Scheidler,
Chief counsel, Thomas More Society

April 5, 2003

Chicago -- This is regarding "Abortion clinics protected" (Commentary, March 19). Kim Gandy, president of the National Organization for Women, and Fay Clayton, counsel to NOW, claim that NOW vs. Scheidler, their racketeering (RICO) suit against abortion protesters -- recently decided by the U.S. Supreme Court -- was "a victory for reproductive rights, not a loss." The court voided NOW's nationwide RICO injunction, upset the clinics' $258,000 judgment for "triple damages" and stopped NOW from bankrupting protesters by charging them its legal fees.

This was NOW's "victory'?

NOW repeats its weary litany about "terror," "bombings" and other "physical violence." When NOW filed suit in 1986, it alleged nothing about bombing but attacked Joseph Scheidler's 1985 book, "Closed: 99 Ways to Stop Abortion," advocating non-violent protest tactics. Out of thousands of nationwide protests over 12 years, jurors found just four minor acts or threats of violence by unidentified others merely associated with defendants' loosely affiliated coalition--a vast throng pegged by NOW at up to a million people.

NOW's target in Scheidler was a pattern of peaceful acts of civil disobedience--sit-ins! Under NOW's theory of "extortion," merely blocking access to businesses was "obtaining ... property" by "force, violence or fear," a federal felony crime. Conducting protest through a "pattern" of such "direct action" (as few as two acts in 10 years!) would transform peaceful protest leaders into racketeers.

Indeed, at oral argument last December, U.S. Solicitor General Ted Olson, arguing in support of NOW, had to concede to Justice Ruth Bader Ginsburg that this broad extortion theory could have applied to civil rights protests.

Lower courts let NOW stretch the definition of federal extortion this far, but by its decisive 8-1 vote, a bipartisan Supreme Court rejected NOW's theory. This preserves our precious legacy of non-violent protest for the future.

Copyright © 2003, Chicago Tribune

Abortion clinics protected

By Kim Gandy and Fay Clayton. Kim Gandy is president of the National Organization for Women and Fay Clayton is counsel to NOW

March 19, 2003

Let's be clear about the meaning of the U.S. Supreme Court's recent decision in the 17-year lawsuit the National Organization for Women brought against Joseph Scheidler, his Pro-Life Action League and other anti-abortion extremists. Although the court vacated the injunction that NOW won in its 1998 trial against these defendants, the suit has been a victory for reproductive rights, not a loss. Not only did the nationwide injunction end the reign of terror, it spawned a new federal law specifically designed to protect women's health clinics.

NOW brought this case in 1986 amid a rash of bombings, violent invasions and brutal blockades that terrorized women's health centers across the nation. Frustrated by the ineffectiveness of efforts under state and local laws, and even under federal laws, including the Civil Rights Act, NOW turned to the Racketeer Influenced and Corrupt Organizations Act, the federal anti-racketeering law known as RICO.

In a 1998 federal district court trial in Chicago, the jury found Scheidler's group responsible for extortion and physical violence against the women's clinics and their patients. The court's judgment yielded not only money damages, but more important, a nationwide injunction that has protected every reproductive health clinic in the country for the past four years from the kind of conduct orchestrated by Scheidler's group. Just before the 1998 trial, one of the key defendants, Randall Terry, head of Operation Rescue, agreed to a permanent injunction barring him from interfering with any clinic's operations or from encouraging anyone else to do so. The Supreme Court's decision, while vacating the Scheidler injunction, had no effect on Terry's settlement.

While this lawsuit was on its first appeal to the Supreme Court, NOW and the other supporters of reproductive rights successfully lobbied Congress to pass the Freedom of Access to Clinic Entrances Act. That law gave clinics and their patients a powerful new tool to combat anti-abortion violence. It lets clinics and patients, as well as federal and state attorneys general, sue any person who interferes with, intimidates or threatens patients or medical service providers. FACE is far simpler and more straightforward than RICO and it potentially provides greater damages.

The majority opinion in the recent Supreme Court decision, written by Chief Justice William Rehnquist, confirmed that Scheidler's group committed deplorable acts against clinic staff, patients and property, but held that RICO doesn't protect against these acts because medical services are intangible and cannot be "acquired" or carried away.

Although NOW was disappointed with the court's ruling, women's health centers now have a significant legal tool in FACE, and we intend to use it. Scheidler has said that henceforth he and his anti-abortion cohorts will use only peaceful tactics. We hope he's telling the truth.

Copyright © 2003, Chicago Tribune

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