Testimony of Fay Clayton
Counsel for the Certified Plaintiff Classes
in
National Organization
for Women, Inc., et al.
v.
Joseph M. Scheidler,
et al.
No. 86 C 7888 (N.D. Ill.)
Before the House Judiciary
Committee
July 17, 1998
INTRODUCTION
I have been invited to testify before this Committee in my capacity
as lead counsel for the plaintiffs, the National Organization
for Women (NOW) and two women's health centers, in the RICO
lawsuit NOW v. Scheidler,
in which a unanimous federal jury verdict was returned April 20, 1998,
after 12 years of litigation. In my brief remarks, I will attempt to explain
the importance of RICO in domestic terrorism situations like this, where
the criminal enterprise is operated by kingpins who largely keep their
hands clean while organizing bands of foot soldiers to carry out acts of
force and violence. I will address how the proposed amendment would eviscerate
RICO, not only in the context of terrorism against clinics whose medical
services include abortion, but also in the context of other ideological
extremist groups. And I will explain why the proposed amendment would do
nothing to protect non-violent advocacy. As I will explain, the federal
jury's verdict in our lawsuit was based strictly on acts and threats of
force and violence, not on advocacy, teaching, leafletting, prayer,
or any other form of lawful speech.
RICO Does Not Criminalize Advocacy
The preface to the proposed bill states that its purpose is to protect
"non-violent advocacy." But non-violent advocacy can never be actionable
under RICO.
Non-violent advocacy doesn't need protection; it is already fully protected
by the First
Amendment to the Constitution.
The plaintiffs in this case have never suggested that non-violent advocacy
could or should be a RICO offense, and our trial had nothing to do with
"non-violent advocacy."
Curiously, when I read the proposed bill, I see that the bill doesn't
even mention advocacy. What this bill would protect is extortion. The shakedowns
that are the centerpiece of the Mafia's activity would no longer be predicate
acts under RICO. This bill would give the Mafia a green light for every
form of extortion. A better title for this bill would be the "Racketeers'
Relief Act" or the "Extortionists' Protection Act." If this bill were to
pass, the Mafia and every hate group that uses violence to intimidate its
ideological opponents would celebrate, and yet lawful speech would not
receive any more protection than it already has.
RICO Is An Important Tool Against Anti-Abortion
Extremists
Let me turn to the reasons that RICO
was needed to stem the campaign of violence that was organized against
my clients by the Pro-Life Action Network. By 1984, Joseph
Scheidler, Andrew Scholberg and a handful of other self-described "radical"
anti-abortion leaders formed a nationwide coalition that they named PLAN
-- the Pro-Life Action Network. (They didn't invite peaceful anti-abortion
groups, like Jack Willke's National Right-to-Life
Committee, to join.) Scheidler vowed to stop abortion by "any means
necessary." He publicly praised convicted arsonists for their effectiveness
and their zeal. Appropriately, Scheidler called PLAN the "pro-life mafia."
In 1985, in the midst of a rash of clinic arsons and bombings, PLAN proclaimed
"a year of pain and fear" for anyone seeking or providing an abortion.
Scheidler and others claimed that their tactics were "non-violent," but
Scheidler also claimed that arson is "non-violent" -- which gives you an
idea of the word games he and his cohorts play.
PLAN's founders knew that a well-organized coalition like PLAN would
be far more effective in closing down clinics than the dozens of constituent
anti-abortion groups operating independently. Because enterprises can be
so much powerful than individuals acting alone, RICO imposes liability
on those who actively operate a criminal enterprise, causing it
to engage in illegal, "predicate," acts. Even if the operators of the enterprise
keep their hands clean and avoid personal liability for the offenses they
incite, under RICO, they will be liable for operating the enterprise through
illegal conduct.
That is precisely what PLAN's leaders did. Having formed the enterprise,
PLAN called its members to nationwide "conventions," where they adopted
agendas of illegal conduct and sent PLAN's members to carry them out. (While
the majority of the illegal acts were carried out by their foot soldiers,
PLAN's leaders committed some of them personally as well.) At the conventions,
they agreed to new tactics, like barricading clinics with Kryptonite locks,
blockading clinic doors with junker cars, and dismantling medical equipment.
And a PLAN conference was not complete without "Field Training," in which
the PLAN participants went to a local clinic to practice the unlawful tactics
they had agreed to use. One agenda included a "Day of Amnesty" on which
PLAN members threatened abortion providers all across the country that
if they did not close voluntarily, they would be closed by tactics such
as blockades.
The Lawsuit Was Based on Force and Violence,
Not Speech
It's important to dispel the myth that PLAN engaged in nothing but peaceful,
First Amendment-protected activity. It did not. PLAN's blockades, invasions
and the other RICO
violations that the jury found PLAN committed are acts of force and violence.
The jury heard testimony from patients and clinic workers who were attacked
during PLAN's blockades, including blockades at which Joseph
Scheidler and Randall
Terry were personally on the scene. One doctor, Dr. Susan Wicklund,
was grabbed and slammed against a car as she tried to get through the blockade
and into her office. Patients were tripped and pushed to the ground. One
clinic administrator was grabbed by her hair and thrown to the ground by
an Operation Rescue leader. Another was
viciously choked by Operation Rescue protesters, leaving serious bruises
on her neck. One patient, who was trying to enter the clinic -- not for
an abortion but for post-operative care following cancer surgery -- was
beaten with an Operation Rescue protester's sign. The protesters clawed
at her and attacked her, causing her sutures to rupture, and she passed
out. This is not speech or advocacy.
This case is not about First
Amendment activity. My clients have never objected to peaceful picketing,
leafletting, or even to hateful, ugly speech by abortion opponents. Calling
our clients "murderers," "whores" and "sluts" is not a RICO violation,
and we have never claimed it is. The First Amendment protects speech, even
ugly speech. But it does not protect the acts of force and violence on
which our suit was based. Our case was not based on speech or advocacy,
but on acts and threats of force and violence.
RICO Is Needed to Reach the Operators
of the Criminal Enterprise
Let me offer an illustration of how RICO fits the facts of the Scheidler
case, just as it fits the facts of the typical Mafia operation. One of
the incidents that led to the filing of this suit occurred in Pensacola,
Florida, in March 1986. Scheidler
and other Pro-Life Action Network leaders were in town, staying at the
home of John Burt, another anti-abortion activist. On the evening of March
25, Joe Scheidler, John Burt, Joan Andrews, and others discussed what form
of "protest" they would conduct at the clinic the next day. Several, including
Joan Andrews, who was well-known for destroying medical equipment, agreed
to invade the clinic the next morning. Scheidler also agreed to enter,
if he thought he could do so without being arrested. Sure enough, the next
day, John Burt, Joan Andrews and others invaded the clinic. They threw
the clinic's administrator down the stairs, injuring her badly; they shoved
a NOW volunteer against a wall, causing her permanent injury; and they
wrecked the medical equipment, putting the clinic out of business for several
days. During the mayhem, Scheidler stood outside, handling press relations
for his group. He praised those who went in and took credit for the invasion
and property destruction. Although criminal charges were filed against
Burt and Andrews, because of his key role in organizing the violence, Scheidler
was equally responsible, but it took RICO to hold him liable for those
wrongs.
In 1986, there was no other law to address effectively the problems
of clinic violence and forcible blockades. There still isn't. Since the
passage of the Freedom
of Access to Clinic Entrances Act (FACE) in 1994, that law has been
an important tool against individuals who have obstructed clinic
entrances. But RICO is needed to reach the people who direct the foot soldiers
of the criminal enterprise from a distance, as PLAN's leaders do.
The campaign of terror that PLAN has conducted for over 14 years is
not hypothetical; it is real. Since the early 1980s, women's health centers
all across the country have been under siege by PLAN's terrorist bands.
With the unanimous jury verdict in this case, that reign of terror should
stop. To "amend" RICO retroactively to give comfort to those who organized
these acts of violence would be an insult to all law-abiding citizens and
especially to the women of America whose Constitutional rights were finally
vindicated in this case.
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