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By June, the U.S. Supreme Court will settle a 17-year-old legal battle between abortion providers and the prolife movement. The court will decide if abortion clinics can use a federal racketeering statute against prolife organizations that protest outside the clinics.

The prochoice National Organization for Women (NOW) is helping to represent abortion clinics in their class-action suit. The chief defendant is Joseph Scheidler, the renowned Roman Catholic anti-abortion activist. Scheidler said NOW's "real goal is to bankrupt prolifers and prolife organizations, and put them out of the business of saving babies from being murdered."

Jay Sekulow, chief counsel for the American Center for Law and Justice (ACLJ), says, "The outcome of this case will have a direct impact beyond the abortion debate and will include free speech parameters for the entire social protest movement."

Sekulow worked with attorneys who presented oral arguments before the nine justices on December 4. A coalition of 70 activists and prolife groups is asking the Supreme Court to overturn a federal district court jury's landmark 1998 decision, NOW v. Scheidler.

In the suit, filed in 1986, NOW argued that Scheidler's Pro-Life Action League, Operation Rescue, and others conspired to shut down the abortion industry through a "pattern of racketeering activity," violating the 1970 Racketeer Influenced and Corrupt Organizations (rico) Act. Those convicted under the act must pay triple damages.

In 1991, a federal judge ruled that the rico law, designed to fight organized crime, was not applicable to prolife protests. But three years later, the Supreme Court overturned the 1991 decision, leading to the trial. Before the trial began, defendant Randall Terry, founder of Operation Rescue, settled with NOW. He agreed to not engage in any illegal acts at abortion clinics—or be fined $150,000.

In 1998, the jury convicted the remaining defendants of extortion and racketeering. The judge ordered Scheidler, two other prolife leaders, the Pro-Life Action League, and Operation Rescue to pay $85,900 to two abortion clinics. Under rico, the amount became $257,000, plus attorney fees. A year later, the trial judge, David Coar, issued an injunction against blocking, obstructing, or impeding women at abortion clinics. Coar permitted sidewalk counseling, picketing, speaking, literature distribution, and praying on public property.

In October 2001, the Seventh Circuit Court of Appeals upheld the jury's decision and the judge's injunction. Last April, the Supreme Court agreed to take up the case.

Sekulow warned that the federal injunction limiting prolife activity is dangerously vague. He said the ACLJ was "handling 50 cases where prayer vigils and pamphleteering are considered intimidating."

John Whitehead of the Rutherford Institute, which filed a brief on behalf of Scheidler, agrees. "rico has been used as a bludgeon to silence dissenters from rightfully expressing their views in a public forum."

During Supreme Court oral arguments in December, attorneys for Scheidler challenged the notion that prolife protests, or any acts of nonviolent protest or civil disobedience, amount to "extortion" under rico. They said prolife protesters seek no property from abortion clinics. NOW's attorney, Fay Clayton, however, said property means "anything tangible or intangible that someone obtains from someone else." In this case, she said, prolife activists used violence to temporarily shut down clinics.

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February 2003, Vol. 47, No. 2