Inc. v. Scheidler National Organization for Women

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 moral opposition to abortion--groups such as the Pro-Life Action Network (PLAN), who became respondents in Scheidler--the abortion industry was seen as a 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 right of free speech. To the women going to clinics for abortions, however, the exercise of that right (often accompanied by shouting, pushing, or other abusive behavior) 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. District Court for the Northern District of Illinois. The suit charged them with violations of the Sherman Anti-Trust Act, which forbids any attempt at "restraint of 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 powerful Mafia figure in New York before the FBI captured him on the RICO statute and he entered prison in 1991. "But when lawyers of the mid-1980s realized how broadly written [RICO] was," van Biema continued, "it mutated wildly." Next to come 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 their suit, 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 petitioners amended 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 fear to induce clinic employees, doctors, and patients to give up their jobs, give up 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 Presidents Conference 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 state a RICO claim," the district court held that the petitioners lacked standing to sue. The court of appeals affirmed this judgment. Any income received by the respondents, the court held, had come from voluntary donations of members and supporters, not from extortion against the clinics.