Tonight you'll hear on the news that Scheidler v. NOW is a seminal abortion case. You'll see protesters with signs, and chanting, and even a little shoving. You'll see footage of pro-life activist Joe Scheidler and his colleagues asking why people who "kill babies and maim women" are innocents while abortion protesters are persecuted as "racketeers" and bankrupted in court. You'll see attorney Fay Clayton, and NOW President Kim Gandy on the steps of the high court, insisting that women seeking abortions were physically brutalized by pro-life protesters in the 1980s. You may even get to hear Operation Rescue protesters, heckling with such pithy lines as: "Babykiller!" and "Liar!" (One of my great frustrations about this case is that, with 30 years to invent better jeers, both sides of this debate keep shouting the same banal sound bites.) My eternal gratitude to the first Fraygrant who comes up with something more original than, "What about the dead babies" or, "It's my body."
If you were to base your opinion of today's case on what you see on the news tonight, you would come away thinking that the high court heard one hell of an abortion case today and that the future of abortion stands in the balance as it hasn't since the court decided Roe v. Wade in 1973. Actually, what the court heard today was rather a tedious little case about statutory interpretation. It may have real consequences for free speech in this country but will impact abortion law not at all. It's a testament to how utterly bonkers both sides in this debate have become, that they alone can't see that.
In the mid-'80s, Operation Rescue members joined with other pro-life activists to create the Pro-Life Action Network, or PLAN, led by Joe Scheidler, Randall Terry, Timothy Murphy, and others. PLAN sought to aggressively interfere with clinic workers and abortion-seekers through "missions," ranging from prayer vigils and leafleting to violent attacks or threats of violence against individual abortion clinics. It is undisputed in this case that in at least some incidents, clinic staff and patients were violently assaulted (pinned against a glass wall until it broke, etc.), although PLAN's attorney, Roy T. Englert, seems to take the position that since there were only four truly violent incidents (as opposed to 30, alleged by NOW), this violence is a-OK.
NOW, adopting a new strategy in 1986, filed suit against PLAN for violating the federal racketeering statute—the Racketeer Influenced and Corrupt Organizations Act. RICO provides better penalties than garden-variety trespass statutes. NOW's theory was that PLAN's missions represented a pattern of "extortion" that differs very little from a Tony Soprano-type shakedown, except with less leather jackets. NOW lost in both the trial court and at the 7th Circuit Court of Appeals but prevailed in the Supreme Court in 1994, when the court unanimously held in NOW v. Scheidler that it was not necessary under RICO that the "extortionists" in question benefit financially from their racketeering.
So the case went back to the trial court in Chicago, where a jury found for NOW and a judge awarded $257,780 in damages against PLAN and issued a permanent national injunction prohibiting PLAN from trespassing on or committing violence at abortion clinics. PLAN appealed to the 7th Circuit and lost, then appealed to the Supreme Court, where we find ourselves today. The only issues before the court: Does RICO allow private parties to seek injunctive relief? And can extortion—which requires that the racketeer in question "obtain property" through the "wrongful" use of actual or threatened force—be used to prosecute political protesters?
Englert opens on this point: Since when is stopping people from accessing abortion clinics "obtaining property" under the law? Were the civil rights boycotts of racist white merchants extortion? When Carry Nation trashed saloons with hammers, was that extortion?
Justice John Paul Stevens, presiding again today because Chief Justice William H. Rehnquist is benched while recovering from leg surgery, points out that those people weren't charged with extortion. Justice Sandra Day O'Connor asks, "Aren't we talking about acts that constitute criminal offenses?"
Englert replies—so cheerfully that it makes my teeth hurt—"Oh yes! Yes they were trespassing!" O'Connor points out that it was more than trespassing; in some cases, the PLAN missions involved assault. Englert agrees, again cheerfully. Maybe it was assault, he tells her, but it was not extortion.
Englert goes on to explain that there is no "property" being "obtained" in these cases, so extortion cannot be found. Justice David Souter suggests that if strangers take control of your property, they have "obtained" it. "No," says Englert, "control is not property. Property is property."
Stevens pulls a Socratic shaming tactic out from his law school years, quizzing Englert on "an 1890 New York case involving work stoppage." When counsel admits that the case is not coming to mind, Stevens cites the case name. Englert again admits that he's blanking on the reference. People shift uneasily.