Petitioner
National Organization for Women, Inc. (NOW); Delaware Women's Health Organization, Inc. (DWHO); Summit Women's Health Organization, Inc. (SWHO)
Respondent
Joseph Scheidler, Pro-Life Action Network (PLAN), et al.
Petitioner's Claim
That respondents belonged to a nationwide conspiracy to shut down abortion clinics in violation of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970.
Chief Lawyer for Petitioner
Fay Clayton
Chief Lawyer for Respondent
Robert Blakey
Justices for the Court
Harry A. Blackmun, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), Antonin Scalia, David H. Souter, John Paul Stevens, Clarence Thomas
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
24 January 1994
Decision
That attempts by the anti-abortion groups in question to hinder the businessof the abortion clinics constituted racketeering, even though there was no economic purpose behind such activities; therefore the respondents could be charged under the RICO provisions.
Significance
In National Organization for Women, Inc. v. Scheidler, pro-choice andpro-life forces fought yet another battle in a war that had been going on since the Supreme Court legalized abortion with Roe v. Wade (1973). Likeits predecessor and a number of other abortion-related challenges in the Supreme Court, Scheidler was decisively in favor of the pro-choice side. But the nature of that victory-- involving as it did the reapplication of a crime statute formerly wielded against Mafia bosses and drug lords to prevent abortion protesters from blocking access to clinics--would raise some disturbing First Amendment questions.
Access v. Protest
The long, heated, and bitter battle over the abortion issue can be characterized in any number of ways, depending upon one's views. To feminist groups such as the National Organization for Women (NOW), who helped to initiate the suit that would become National Organization for Women, Inc. v. Scheidler, anti-abortion protests were simply an attempt, orchestrated by religious groups and other male- dominated organizations, to prevent women from exercising free choice over their bodies. To groups based around a religious or moralopposition to abortion--groups such as the Pro-Life Action Network (PLAN), who became respondents in Scheidler--the abortion industry was seen asa big and profitable business which cloaks itself under the banners of feminism and choice. And--to get to the crux of Scheidler--in the eyes of abortion protesters, protesting abortion is a constitutionally protected rightof free speech. To the women going to clinics for abortions, however, the exercise of that right (often accompanied by shouting, pushing, or other abusivebehavior) infringes on their own right of free access.
The fight over protest and access had been going on for many years when NOW took Joseph Scheidler, PLAN, and other abortion opponents to the U.S. DistrictCourt for the Northern District of Illinois. The suit charged them with violations of the Sherman Anti-Trust Act, which forbids any attempt at "restraintof trade"; and--in an innovative use of law--with violations of sections 1962(a), (c), and (d) of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970.
David van Biema of Time magazine described the latter, written in an attempt to impede the spread of the Mafia's criminal empire, as "a law with teeth--and a voracious appetite." Written in broad language, van Biema indicated, the law made not just the crime-syndicate bosses, but all their underlings, culpable for unlawful activities committed by a criminal organization. "RICO quickly proved a sterling Mob stopper," van Biema wrote, "as dozens of capos like New York City's John Gotti can testify." The latter, nicknamed "the Dapper Don" for his elegant style of dress, had been perhaps the most powerfulMafia figure in New York before the FBI captured him on the RICO statute andhe entered prison in 1991. "But when lawyers of the mid-1980s realized how broadly written [RICO] was," van Biema continued, "it mutated wildly." Next tocome under the scope of RICO were junk-bond magnates such as Michael Milken;then came persons charged with sexual harassment. Though the statute was still being used against illegal activity, with each mutation, it was moving further and further away from the crime bosses for whom it had been written.
In the present case, the use of RICO and the Sherman Act stemmed from charges, which Scheidler and others did not attempt to deny, that their aim was to shut down abortion clinics and convince women not to have abortions. In theirsuit, which charged the respondents with violations of various state laws, NOW and the other petitioners sought injunctive relief, along with damages, costs, and attorneys' fees. Further pursuing the RICO argument, the petitionersamended their complaint to include a "RICO Case Statement" which offered further details about the enterprise, pattern, and victims of the respondents. According to the amended complaint, Scheidler and others belonged to a nationwide conspiracy to shut down abortion clinics by means of racketeering and extortion in violation of the Hobbs Act, which defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."The petitioners charged that the respondents had, in the words of the U.S. Supreme Court, "conspired to use threatened or actual force, violence or fearto induce clinic employees, doctors, and patients to give up their jobs, giveup their economic right to practice medicine, and give up their right to obtain medical services at the clinics." That conspiracy, in the petitioners' words, had "injured the business and/or property interests" of the clinics.
The district court dismissed the case, citing Eastern Railroad PresidentsConference v. Noerr Motor Freight, Inc. (1961): since the activities in question "involve[d] political opponents, not commercial competitors, and political objectives, not marketplace goals," the Sherman Act was not relevant. Holding that "some profit-generating purpose must be alleged in order to statea RICO claim," the district court held that the petitioners lacked standingto sue. The court of appeals affirmed this judgment. Any income received by the respondents, the court held, had come from voluntary donations of membersand supporters, not from extortion against the clinics.
A New Reading of RICO
The U.S. Supreme Court reversed the lower court's ruling by a unanimous vote.Writing for the Court, Chief Justice Rehnquist first held that the clinics had standing to bring their claim. Citing Hishon v. King (1984), he noted that because their complaint had been dismissed at the pleading stage, itwould not have to be sustained "if relief could be granted under any set of facts that could be proved consistent with the allegations." Nothing was needed to confer standing, the Chief Justice wrote, other than the extortion and injury allegations in the complaint.
Not only did the petitioners have standing to bring their case before the Court, RICO could be used against the respondents. The statutes contained no provision stating that the racketeering enterprise had to be economically motivated, and though "arguably an enterprise engaged in interstate or foreign commerce would have a profit-seeking motive," RICO's use of the word "affect" suggested an alternative interpretation. Consulting the dictionary, the Chief Justice found that Webster defined "affect" as "to have a detrimental influenceon"--something an enterprise could do without making, or seeking to make, aprofit.
Nor does "enterprise" necessarily indicate an economic motive. Whereas in (a)and (b), an enterprise is "an entity acquired through illegal activity or the money generated from illegal activity," in (c) it "connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed." An enterprise, the Court held, "need only be an association in fact thatengages in a pattern of racketeering activity." For further proof that an economic motive need not be cited, the Court made reference to the congressional statement of findings that precedes the RICO chapter and "refers to activities that drain billions of dollars from America's economy." The activities cited in Scheidler, particularly preventing access to clinics, might notbenefit the perpetrators; but they unquestionably drained income from the clinics, and hence impeded the flow of commerce. If the congressional findingswere not enough, one had only to note the 1984 amendments broadening a set ofguidelines on RICO prosecutions issued by the Department of Justice in 1981.Finally, "the statutory language is unambiguous, and there is no clearly expressed intent to the contrary in the legislative history that would warrant adifferent construction." Accordingly the Court overruled the judgment of thelower court.
A Chilling Effect
Not only was it unanimous, the Court's opinion in Scheidler was remarkably short--only eight pages, including footnotes. This belied the complexityof the free-speech issues it raised, issues addressed briefly by Justice Souter in a concurring opinion joined by Justice Kennedy. Quoting from Lucasv. Alexander (1929), Souter noted that "a law `must be construed with aneye to possible constitutional limitations so as to avoid doubts as to its validity." In this particular case, Souter noted, the language of the statute was unambiguous, and therefore it was pointless to challenge RICO on that basis. And even if RICO's meaning were debatable, this would not mean that an economic motive requirement should be written into the statute, "since such a requirement would correspond only poorly to free speech patterns."
Finally, the economic requirement would be unnecessary, Souter suggested, because it would make more sense to challenge RICO on the basis of free speech.In fact, he all but invited future petitioners to do so: "Accordingly," he wrote, "it is important to stress that nothing in the Court's opinion precludesa RICO defendant from raising the First Amendment in its defense in a particular case." In National Association for the Advancement of Colored Peoplev. Claiborne Hardware Co. (1982), for instance, the Court had ruled thata state law prohibiting interference with business could not constitutionallybe allied to a civil rights boycott of white merchants. Justice Souter concluded by warning that "I think it prudent to notice that RICO actions could deter protected advocacy, and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake."
Feminists and pro-choice advocates were exultant over the decision, as van Biema noted in Time soon afterward. Judith Lichtman of the Women's LegalDefense Fund called it "a victory for women . . . By this decision, the Court rightly recognized the danger that this national conspiracy of harassment,stalkings, bombings, shootings and chemical attacks poses to women and healthcare providers." Such a statement, van Biema observed, offered a too-broad interpretation of what was in fact a narrow Court opinion--and, incidentally,a too-broad interpretation of the constituency it benefited. Regarding the characterization of Scheidler as "a victory for women," van Biema wrotethat this "may depend on whether a woman is for or against abortion rights."The ruling seemed a solution to the tragic situation surrounding abortion clinics, which was symbolized by the shooting of Dr. David Gunn in Alabama in March of 1993 by an anti-abortion zealot. Clearly the extremist fringes of thepro-life movement had created a threat to personal safety and individual liberty, but the Scheidler decision offered protection against such incidents with a ruling that introduced the potential for a chilling effect on freespeech. Randell Terry, a leader in the Operation Rescue organization, calledthe decision "A vulgar betrayal of over 200 years of tolerance toward protest." Scheidler, Terry's one-time mentor, viewed with disdain attempts to obtain treble damages from him: "You can't get blood from a turnip," he said.
One individual who expressed deep concern about the ruling- -and high hopes for the next round of legal battles, the federal civil trial--was G. Robert Blakey. In the present case, he was the lawyer for Scheidler and other respondents; but 23 years before, he had held a role that gave him special insight onRICO. Blakey, it turns out, was the individual who drafted the statute as chief counsel to the Senate Judiciary Subcommittee on Criminal Laws. At the time, he said, Senator Edward Kennedy expressed fears that President Richard M.Nixon would use the statute against anti-war protesters. Therefore Blakey andKennedy sat down in the Monocle Restaurant in Washington, D.C. one day to alter the bill's language. Later, after the federal civil trial that followed Scheidler, Blakey decried the methods used to criminalize forms of freespeech and protest: "This ruling," he said, "makes the Boston Tea Party a RICO [violation]."
Impact
Later in Madsen v. Women's Health Center, Inc. (1994), the Court ruled6-3 that judges could establish "buffer zones" to keep protesters away fromabortion clinics. Though not potentially as restrictive of free speech as Scheidler, the Madsen ruling still raised concerns, even on the Court that passed it. Chief Justice Rehnquist, again writing for the majority,warned judges not to "restrict more speech than necessary." Also in 1994, Congress passed the Freedom of Access to Clinics Act, which prevented protestersfrom blocking access to an abortion clinic. As for the civil trial that followed Scheidler, it did not go well for PLAN. Ordinarily a protest group would enjoy the support of the ACLU, the NAACP, and other civil-liberties and -rights organizations; but given PLAN's anti-abortion stance and the political realities that create inflexible and opposing power blocs, such groups did not take up PLAN's cause. Nor did the support of its traditional constituency--religious and conservative groups--prove a powerful force in PLAN's favor. Terry and Operation Rescue settled out of court in February of 1998, and ajury in Chicago in April found the remaining defendants guilty of conspiracyunder RICO. The defendants were liable to two clinics for $85,000 in damages, which under the racketeering law would be multiplied by three--to $255,000.More facilities were expected to file claims under the class-action suit.
Related Cases
National Organization for Women, Inc. (NOW); Delaware Women's Health Organization, Inc. (DWHO); Summit Women's Health Organization, Inc. (SWHO)
Respondent
Joseph Scheidler, Pro-Life Action Network (PLAN), et al.
Petitioner's Claim
That respondents belonged to a nationwide conspiracy to shut down abortion clinics in violation of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970.
Chief Lawyer for Petitioner
Fay Clayton
Chief Lawyer for Respondent
Robert Blakey
Justices for the Court
Harry A. Blackmun, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), Antonin Scalia, David H. Souter, John Paul Stevens, Clarence Thomas
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
24 January 1994
Decision
That attempts by the anti-abortion groups in question to hinder the businessof the abortion clinics constituted racketeering, even though there was no economic purpose behind such activities; therefore the respondents could be charged under the RICO provisions.
Significance
In National Organization for Women, Inc. v. Scheidler, pro-choice andpro-life forces fought yet another battle in a war that had been going on since the Supreme Court legalized abortion with Roe v. Wade (1973). Likeits predecessor and a number of other abortion-related challenges in the Supreme Court, Scheidler was decisively in favor of the pro-choice side. But the nature of that victory-- involving as it did the reapplication of a crime statute formerly wielded against Mafia bosses and drug lords to prevent abortion protesters from blocking access to clinics--would raise some disturbing First Amendment questions.
Access v. Protest
The long, heated, and bitter battle over the abortion issue can be characterized in any number of ways, depending upon one's views. To feminist groups such as the National Organization for Women (NOW), who helped to initiate the suit that would become National Organization for Women, Inc. v. Scheidler, anti-abortion protests were simply an attempt, orchestrated by religious groups and other male- dominated organizations, to prevent women from exercising free choice over their bodies. To groups based around a religious or moralopposition to abortion--groups such as the Pro-Life Action Network (PLAN), who became respondents in Scheidler--the abortion industry was seen asa big and profitable business which cloaks itself under the banners of feminism and choice. And--to get to the crux of Scheidler--in the eyes of abortion protesters, protesting abortion is a constitutionally protected rightof free speech. To the women going to clinics for abortions, however, the exercise of that right (often accompanied by shouting, pushing, or other abusivebehavior) infringes on their own right of free access.
The fight over protest and access had been going on for many years when NOW took Joseph Scheidler, PLAN, and other abortion opponents to the U.S. DistrictCourt for the Northern District of Illinois. The suit charged them with violations of the Sherman Anti-Trust Act, which forbids any attempt at "restraintof trade"; and--in an innovative use of law--with violations of sections 1962(a), (c), and (d) of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970.
David van Biema of Time magazine described the latter, written in an attempt to impede the spread of the Mafia's criminal empire, as "a law with teeth--and a voracious appetite." Written in broad language, van Biema indicated, the law made not just the crime-syndicate bosses, but all their underlings, culpable for unlawful activities committed by a criminal organization. "RICO quickly proved a sterling Mob stopper," van Biema wrote, "as dozens of capos like New York City's John Gotti can testify." The latter, nicknamed "the Dapper Don" for his elegant style of dress, had been perhaps the most powerfulMafia figure in New York before the FBI captured him on the RICO statute andhe entered prison in 1991. "But when lawyers of the mid-1980s realized how broadly written [RICO] was," van Biema continued, "it mutated wildly." Next tocome under the scope of RICO were junk-bond magnates such as Michael Milken;then came persons charged with sexual harassment. Though the statute was still being used against illegal activity, with each mutation, it was moving further and further away from the crime bosses for whom it had been written.
In the present case, the use of RICO and the Sherman Act stemmed from charges, which Scheidler and others did not attempt to deny, that their aim was to shut down abortion clinics and convince women not to have abortions. In theirsuit, which charged the respondents with violations of various state laws, NOW and the other petitioners sought injunctive relief, along with damages, costs, and attorneys' fees. Further pursuing the RICO argument, the petitionersamended their complaint to include a "RICO Case Statement" which offered further details about the enterprise, pattern, and victims of the respondents. According to the amended complaint, Scheidler and others belonged to a nationwide conspiracy to shut down abortion clinics by means of racketeering and extortion in violation of the Hobbs Act, which defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."The petitioners charged that the respondents had, in the words of the U.S. Supreme Court, "conspired to use threatened or actual force, violence or fearto induce clinic employees, doctors, and patients to give up their jobs, giveup their economic right to practice medicine, and give up their right to obtain medical services at the clinics." That conspiracy, in the petitioners' words, had "injured the business and/or property interests" of the clinics.
The district court dismissed the case, citing Eastern Railroad PresidentsConference v. Noerr Motor Freight, Inc. (1961): since the activities in question "involve[d] political opponents, not commercial competitors, and political objectives, not marketplace goals," the Sherman Act was not relevant. Holding that "some profit-generating purpose must be alleged in order to statea RICO claim," the district court held that the petitioners lacked standingto sue. The court of appeals affirmed this judgment. Any income received by the respondents, the court held, had come from voluntary donations of membersand supporters, not from extortion against the clinics.
A New Reading of RICO
The U.S. Supreme Court reversed the lower court's ruling by a unanimous vote.Writing for the Court, Chief Justice Rehnquist first held that the clinics had standing to bring their claim. Citing Hishon v. King (1984), he noted that because their complaint had been dismissed at the pleading stage, itwould not have to be sustained "if relief could be granted under any set of facts that could be proved consistent with the allegations." Nothing was needed to confer standing, the Chief Justice wrote, other than the extortion and injury allegations in the complaint.
Not only did the petitioners have standing to bring their case before the Court, RICO could be used against the respondents. The statutes contained no provision stating that the racketeering enterprise had to be economically motivated, and though "arguably an enterprise engaged in interstate or foreign commerce would have a profit-seeking motive," RICO's use of the word "affect" suggested an alternative interpretation. Consulting the dictionary, the Chief Justice found that Webster defined "affect" as "to have a detrimental influenceon"--something an enterprise could do without making, or seeking to make, aprofit.
Nor does "enterprise" necessarily indicate an economic motive. Whereas in (a)and (b), an enterprise is "an entity acquired through illegal activity or the money generated from illegal activity," in (c) it "connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed." An enterprise, the Court held, "need only be an association in fact thatengages in a pattern of racketeering activity." For further proof that an economic motive need not be cited, the Court made reference to the congressional statement of findings that precedes the RICO chapter and "refers to activities that drain billions of dollars from America's economy." The activities cited in Scheidler, particularly preventing access to clinics, might notbenefit the perpetrators; but they unquestionably drained income from the clinics, and hence impeded the flow of commerce. If the congressional findingswere not enough, one had only to note the 1984 amendments broadening a set ofguidelines on RICO prosecutions issued by the Department of Justice in 1981.Finally, "the statutory language is unambiguous, and there is no clearly expressed intent to the contrary in the legislative history that would warrant adifferent construction." Accordingly the Court overruled the judgment of thelower court.
A Chilling Effect
Not only was it unanimous, the Court's opinion in Scheidler was remarkably short--only eight pages, including footnotes. This belied the complexityof the free-speech issues it raised, issues addressed briefly by Justice Souter in a concurring opinion joined by Justice Kennedy. Quoting from Lucasv. Alexander (1929), Souter noted that "a law `must be construed with aneye to possible constitutional limitations so as to avoid doubts as to its validity." In this particular case, Souter noted, the language of the statute was unambiguous, and therefore it was pointless to challenge RICO on that basis. And even if RICO's meaning were debatable, this would not mean that an economic motive requirement should be written into the statute, "since such a requirement would correspond only poorly to free speech patterns."
Finally, the economic requirement would be unnecessary, Souter suggested, because it would make more sense to challenge RICO on the basis of free speech.In fact, he all but invited future petitioners to do so: "Accordingly," he wrote, "it is important to stress that nothing in the Court's opinion precludesa RICO defendant from raising the First Amendment in its defense in a particular case." In National Association for the Advancement of Colored Peoplev. Claiborne Hardware Co. (1982), for instance, the Court had ruled thata state law prohibiting interference with business could not constitutionallybe allied to a civil rights boycott of white merchants. Justice Souter concluded by warning that "I think it prudent to notice that RICO actions could deter protected advocacy, and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake."
Feminists and pro-choice advocates were exultant over the decision, as van Biema noted in Time soon afterward. Judith Lichtman of the Women's LegalDefense Fund called it "a victory for women . . . By this decision, the Court rightly recognized the danger that this national conspiracy of harassment,stalkings, bombings, shootings and chemical attacks poses to women and healthcare providers." Such a statement, van Biema observed, offered a too-broad interpretation of what was in fact a narrow Court opinion--and, incidentally,a too-broad interpretation of the constituency it benefited. Regarding the characterization of Scheidler as "a victory for women," van Biema wrotethat this "may depend on whether a woman is for or against abortion rights."The ruling seemed a solution to the tragic situation surrounding abortion clinics, which was symbolized by the shooting of Dr. David Gunn in Alabama in March of 1993 by an anti-abortion zealot. Clearly the extremist fringes of thepro-life movement had created a threat to personal safety and individual liberty, but the Scheidler decision offered protection against such incidents with a ruling that introduced the potential for a chilling effect on freespeech. Randell Terry, a leader in the Operation Rescue organization, calledthe decision "A vulgar betrayal of over 200 years of tolerance toward protest." Scheidler, Terry's one-time mentor, viewed with disdain attempts to obtain treble damages from him: "You can't get blood from a turnip," he said.
One individual who expressed deep concern about the ruling- -and high hopes for the next round of legal battles, the federal civil trial--was G. Robert Blakey. In the present case, he was the lawyer for Scheidler and other respondents; but 23 years before, he had held a role that gave him special insight onRICO. Blakey, it turns out, was the individual who drafted the statute as chief counsel to the Senate Judiciary Subcommittee on Criminal Laws. At the time, he said, Senator Edward Kennedy expressed fears that President Richard M.Nixon would use the statute against anti-war protesters. Therefore Blakey andKennedy sat down in the Monocle Restaurant in Washington, D.C. one day to alter the bill's language. Later, after the federal civil trial that followed Scheidler, Blakey decried the methods used to criminalize forms of freespeech and protest: "This ruling," he said, "makes the Boston Tea Party a RICO [violation]."
Impact
Later in Madsen v. Women's Health Center, Inc. (1994), the Court ruled6-3 that judges could establish "buffer zones" to keep protesters away fromabortion clinics. Though not potentially as restrictive of free speech as Scheidler, the Madsen ruling still raised concerns, even on the Court that passed it. Chief Justice Rehnquist, again writing for the majority,warned judges not to "restrict more speech than necessary." Also in 1994, Congress passed the Freedom of Access to Clinics Act, which prevented protestersfrom blocking access to an abortion clinic. As for the civil trial that followed Scheidler, it did not go well for PLAN. Ordinarily a protest group would enjoy the support of the ACLU, the NAACP, and other civil-liberties and -rights organizations; but given PLAN's anti-abortion stance and the political realities that create inflexible and opposing power blocs, such groups did not take up PLAN's cause. Nor did the support of its traditional constituency--religious and conservative groups--prove a powerful force in PLAN's favor. Terry and Operation Rescue settled out of court in February of 1998, and ajury in Chicago in April found the remaining defendants guilty of conspiracyunder RICO. The defendants were liable to two clinics for $85,000 in damages, which under the racketeering law would be multiplied by three--to $255,000.More facilities were expected to file claims under the class-action suit.
Related Cases
- Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).
- United States v. Turkette, 452 U.S. 576 (1981).
- National Association for the Advancement of Colored People v. Claiborne Hardware Co. 458 U.S. 886 (1982).
- Hishon v. King, 467 U.S. 69 (1984).
- Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).
- United States v. Flynn, 488 U.S. 974 (1988).
- Northeast Women's Center, Inc. v. McMonagle, 493 U.S. 901 (1989).
- Madsen v. Women's Health Center, Inc., 513 U.S. 753 (1994).
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