National NOW Times >> Summer 2006  >> Article

High Court Overturns Injunction that Curbed Clinic Violence

by Campbell Roth, Publications Coordinator

A legal fight that spanned 20 years ended on Feb. 28, 2006, when the U.S. Supreme Court ruled in NOW v. Scheidler that a federal racketeering law could not be used against those who organized violence aimed at closing women's health clinics.

In 1986, after years of increasing violence at clinics across the United States, the National Organization for Women and two reproductive health clinics sued Joseph Scheidler, the Pro-Life Action Network (PLAN) and others in an effort to stop their reign of terror. NOW later added Operation Rescue and Randall Terry as defendants, and sought a nationwide injunction under RICO (the Racketeer Influenced and Corrupt Organizations Act) to stop these organizations from planning, conspiring and urging others to engage in violent acts.

"We used RICO, a law designed to reach mafia dons, because we wanted to stop those at the top of the violent anti-abortion movement," said NOW president Kim Gandy, who has worked on the case since 1987. "RICO allows you to reach the top organizers, the ones who direct and fund the violence, but who may never personally light the match or commit the assault. It wasn't enough to go after the footsoldiers in city after city—we wanted an injunction to stop the kingpins."

NOW v. Scheidler went to the Supreme Court three times during its 20 years. The case was initially dismissed by a trial judge who ruled that the RICO Act only applies those who have an economic motive for their crime. The Supreme Court unanimously reversed in 1994 (perhaps not coincidentally after several abortion doctors had been murdered), saying the plain language of the RICO Act does not require an economic motive.

NOW and other abortion rights activists used the publicity of the case to lobby for the Freedom of Access to Clinic Entrances (FACE) Act—a law that prohibits individuals from blocking, intimidating or attacking anyone trying to enter a reproductive health clinic. It also prohibits individuals from damaging or destroying health clinics. The law was passed in 1994, after the unanimous ruling in NOW v. Scheidler. But NOW continued to pursue the RICO case, because it would allow an injunction against those who instigated the violence, not just the ones who carried it out.

After a three-week trial in Chicago federal court and a unanimous jury verdict finding the defendants to be racketeers, the trial judge issued a nationwide injunction against the self-proclaimed "pro-life Mafia." While protecting the defendants' rights to pray, speak or leaflet peacefully on public property, the judge enjoined the defendants, including Joe Scheidler and Operation Rescue, from interfering with the right of women to obtain services from clinics, and the right of the clinics to provide these services, including abortion.

"The Supreme Court's ruling, overturning our injunction, will add to the increasing difficulty women face in obtaining reproductive health services," said NOW President Kim Gandy. "This case was one of our most successful long-term strategies to quell the violence at women's health clinics. The jury agreed that thugs cannot call violent attacks 'free speech' and get away with it—but the new Supreme Court had other ideas."

"A political shift has put our reproductive rights on the line. Roe v. Wade is still the prevailing law," Gandy said, "but without strong protections against clinic assaults, and judges who will uphold them, the legal right to abortion could become meaningless."

Not surprisingly, shortly after the Court reversed NOW's injunction, Operation Rescue (now called Operation Save America) announced their first clinic assault in many years—a week-long blitz in July, targeted at the lone remaining clinic in Mississippi. And, of course, NOW will be there.