Supreme Court Hears Key Abortion Cases, Scheidler v. NOW and Operation Rescue v. NOW on Nov. 30

November 25, 2005

After nearly twenty years of litigation, and two trips to the U.S. Supreme Court to protect patients and clinics from organized violence, the National Organization for Women (NOW) will return to the Court on Nov. 30 for the third time. Oral arguments in its landmark suit to hold organizers legally responsible for their violent attacks on women's health clinics will begin at 10am, just before arguments in another abortion-related case, Ayotte v. Planned Parenthood of Northern New England.

Last June, the Court agreed to hear for a third time this class-action lawsuit brought by NOW (on behalf of U.S. women who might seek to use any services at women's health clinics) and by two named clinics on behalf of thousands of clinics across the country. At issue will be the nationwide injunction NOW obtained seven years ago against the Pro-Life Action Network (PLAN), Joe Scheidler, Operation Rescue, and other anti-abortion terrorists.

"We're grateful that this injunction has increased women's safety and increased protection for the clinics since 1998," said NOW President Kim Gandy. "We hope the Supreme Court will recognize these crimes for what they are — an organized campaign to stop abortion by closing every clinic that performs them, without regard to the fact that these clinics provide many other necessary services, such as contraception, pap smears, routine exams, infertility treatments and other non-abortion-related health services."

NOW filed this lawsuit in 1986 — nearly 20 years ago — to protect women and clinic staff from anti-abortion violence committed by individuals and groups including Scheidler, PLAN, Randall Terry, and Operation Rescue. The suit, under the Racketeer-Influenced and Corrupt Organizations (RICO) Act, is part of NOW's multi-tactical strategy to protect women's constitutional right to abortion and other reproductive health services.

After years of legal wrangling, the case finally went to trial in 1998 and a unanimous jury agreed with NOW that the defendants had violated the federal RICO Act by organizing and coordinating a violent campaign to close clinics nationwide. In 1999, the judge granted the first-ever nationwide injunction against perpetrators of anti-abortion violence, forbidding Scheidler, Operation Rescue, and others from interfering with the right of women to obtain reproductive health services at clinics and the right of the clinics to provide those services.

During the pendency of the case and after the jury's decision, clinic violence declined significantly. Protestors continued to picket and shout outside the clinics, but the physical harm and property damage was a fraction of what it had been when the case was filed. Not surprisingly, the defendants have relentlessly challenged this prohibition on their violent scheme.

In 2002 the court agreed to review NOW v. Scheidler on the basis of two technical issues raised by Scheidler and Operation Rescue, but refused to hear their challenge that the First Amendment was violated by earlier rulings or that free speech was even at issue in the case.

In February 2003, eight justices ruled that while anti-abortion groups did commit crimes and interfere with clinic operations, the injunction could not be supported by the more than 100 acts of extortion based on a technicality: that no money or property had been obtained from the clinics. The Supreme Court sent the case back to the Seventh Circuit for further action, where a three judge panel referred the case back to the trial judge to decide whether the injunction could be supported by the four acts of violence and threats of physical violence, even without the various acts of extortion.

The defendants again appealed to the Supreme Court, demanding that the injunction be lifted without further proceedings in any other court.

"Of course they want the injunction lifted," Gandy said. "They are not happy simply yelling at women and girls, taking their photographs, copying their license plate numbers, harassing the clinic's employees and vendors, and all of the other things they do to make it difficult for women and the clinics. They want to return to the days of using physical assault to terrorize patients and doctors, in order to shut down these facilities."

Nearly 10 years after NOW first filed its suit, our campaign was successful to enact the Freedom of Access to Clinic Entrances (FACE) Act. Gandy, who was on the drafting committee for FACE, notes that while FACE was a step in the right direction, women's rights advocates are concerned that it will not provide the same protection as RICO laws — including triple damages and broad injunctions against future illegal acts.

"Women's access to reproductive health care is at great risk," said Gandy. "Time and again, our fate is put in the hands of nine justices. With three critical cases set for hearing, the power and consequence of who sits on the Supreme Court will be demonstrated mightily on Wednesday."

Read more in a detailed timeline of the NOW v. Scheidler case.