NOW Applauds Supreme Court Refusal to Hear First Amendment Challenge in NOW v. Scheidler, Urges Court to Uphold Landmark Injunction

April 22, 2002

Today the Supreme Court agreed to review the National Organization for Women's historic victory against Joe Scheidler, Operation Rescue and other anti-abortion terrorists. In good news for women's rights, the Court specifically declined to review the appellate court's unanimous decision that campaigns of terror against abortion clinics are not protected by the First Amendment. Instead, the Supreme Court will consider two technical issues raised by the defendants.

"We are gratified that the Court did not even give Joe Scheidler and Operation Rescue the time of day on their claim that the First Amendment justifies their violent acts," said Kim Gandy, NOW President. "NOW has a proud history of social protest, activism and non-violent civil disobedience."

"Unfortunately, some news reports are suggesting that these and other forms of peaceful protest are threatened by this case. Nothing could be farther from the truth. This lawsuit is about coordinated violence aimed at the clinics and the women who use them, not about lawful speech," Gandy continued.

"NOW v. Scheidler has never challenged praying or picketing or protesting. But hitting a woman over the head with a picket sign is not speech. Grabbing a woman by the hair and throwing her to the ground is not speech," said Fay Clayton, NOW Foundation attorney who represents NOW in the case. "Terrorism is not protected by the First Amendment. The Supreme Court has agreed with us that those who engage in terrorism may not escape responsibility for the violence they orchestrate by claiming First Amendment protection."

The Supreme Court will review the district court's issuance of an injunction forbidding Scheidler and the other defendants from further violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). "The question is whether women and clinics victimized by the defendants' violence can be protected from future crimes, and not merely compensated for their losses after the damage is done," said Gandy. "Operation Rescue and Scheidler are arguing that, even though the jury found an extensive pattern of racketeering activity, their victims can't ask a court to say 'No more. You may not commit any more of these crimes.'"

The Supreme Court will also decide whether anti-abortion terrorists whose motivation is religious and political, rather than economic, may be held to have violated the Hobbs Act, the federal extortion statute. "Scheidler can't weasel out of responsibility by saying that he didn't profit from shutting clinics down," Gandy said. "When you use fear, force and violence—and the threat of it— to take away the right of women to use these clinics and the right of the clinics to serve them, that's extortion, plain and simple."

Background on NOW v. Scheidler

The Supreme Court took this case in 1993, and held that Scheidler, Operation Rescue and the other defendants are not exempt from RICO laws, even though they claimed religious, not monetary, motives for their acts of terrorism.

In 1998, after 13 years of litigation, NOW won a unanimous jury verdict in which the jury found the defendants responsible for numerous crimes in violation of RICO, including violence and threats of violence, and the judge issued a nationwide injunction prohibiting future violence. "The evidence proved that these militants used brutal force to keep women from exercising their rights. And they didn't just target women seeking abortions at women's health clinics; they targeted women seeking to use the services of those clinics for any reason, including cancer patients, women seeking contraceptive services, and a whole host of other reproductive services," said Fay Clayton, the NOW Foundation lawyer who argued the case in the Supreme Court in 1993 and represented the nationwide class of women in the jury trial in 1998.

In 2001 the 7th Circuit unanimously affirmed the jury's finding that the defendants had violated RICO by committing crimes against the class of plaintiff clinics as well as the class of women represented by NOW.

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