July/August, 1998 Volume XIII Number 1
Chicago, IL — Joe Scheidler is unmoved.
He stands tall in front of the abortuary in his trademark hat, narrowed, sparkling eyes, and bullhorn. He’s a racketeer — a racketeer for life.
When a federal jury found Scheidler, director of Pro-Life Action League of Chicago, his associate, Tim Murphy, and a long-time friend and fellow activist, Andrew Scholberg liable for nearly $86,000, none was more vocal than the 70 year-old former Benedictine monk that he would not surrender in his very personal and public war on "child killing" in America and elsewhere.
As the acknowledged father of the pro-life activist movement who spurred thousands to activism through his ground-breaking book, Closed: 99 Ways to Close An Abortion Clinic, and helped birth many anti-abortion groups - including Operation Rescue - by helping organize yearly Pro-Life Action Network (PLAN) conventions, Scheidler is unbowed by his new title of racketeer conferred by the jury under the Racketeering Influenced and Corrupt Organization (RICO) Act.
A kaleidoscope of changes
The case decided on April 20, 1998 is not the same case which was started in 1986.
Along with Scheidler, a number of pro-life activists were named in the original 1986 complaint. Tim Murphy, a long-time associate of Scheidler's and one of the "human dynamos" who keep pro-life activism moving at the Pro-Life Action League (PLAL), was included in the suit. Andrew Scholberg, another PLAL associate who now is involved in other pro-life efforts, was also named.
The organizations, PLAL and PLAN, were named on the original complaint.
Randall Terry was added later in the case after the formation and activism of Operation Rescue. Terry settled with opposition attorneys a few months before trial (Life Advocate, January/February 1998).
A number of other individuals and groups, including Andrew Burnett of Advocates for Life Ministries (AFLM), however, appeared and were dropped from the case over the years.
Even the charges evolved. At first it was aimed solely at picketing. Later it advanced to include rescues and the recovery of scores of aborted children's remains and giving these bodies a decent burial.
"The case started as an anti-trust case," notes Tom Brejcha (BREKka).
RICO extortion charges were added later - in 1988. The case was dismissed in 1991 at the U.S. District Court in Chicago. The decision was upheld in the U.S. Seventh Circuit Court of Appeals. All this was over the claim by pro-life attorneys, Brejcha, Richard Caro, and Debbie Fischer, that RICO charges required a finding of a motivation of economic gain. This halted the case while the question worked its way up to the U.S. Supreme Court. The high court determined that economic motive was not specified in the statute and returned the case to Chicago for trial.
In addition to the other elements, the NOW attorneys, Fay Clayton, backed by four major corporate law firms, proceeded with the suit as a "class action" which meant that, if they won, any of the nation's 900 abortuaries could bring a suit under the auspices of the NOW v. Scheidler verdict.
Brejcha says that, since the verdict, he and the other pro-life attorneys have been working first on preparing for the injunction hearing scheduled for late June. NOW is demanding a "nationwide injunction" at this mini-trial. After that, he says, they will begin to wade through the numerous errors made by Judge David Coar during trial.
Premiere among the errors was the refusal of Judge Coar to acknowledge the free speech arguments raised by the defense team - especially the 1960s case which in which Dr. Benjamin Spock was convicted of crimes for his anti-war activities and the case of NAACP v. Claiborne Hardware. Claiborne is one of the landmark civil cases standing for protection of freedom of speech and freedom of association. Many of the charges in the two cases were parallel - "violent" rhetoric at rallies, people loosely associated with the group committing acts of threat and violence, loss of business, and intimidation.
"Judge Coar hated it when we brought up Claiborne," said Brejcha.
Also, there could possibly be a direct challenge to the federal RICO statutes as overbroad. Overbreadth refers to a law which is written in such a way as to allow it to capture not only the legally proscribable activity such as extortion or threats of violence, but also to reach and punish constitutionally protected activities.
G. Robert Blakely, a Notre Dame professor and the one who drafted the RICO statute, said that it was never intended to apply to political groups.
"If you look at this case and say it's about abortion, you're missing the point," Blakely said after hearing the verdict. "Everybody who loves the First Amendment has got to sleep uneasily tonight."
But these concerns were raised by liberals when Blakely first unveiled the draft of the law, and those concerns were not heeded at the time.
Brejcha will no doubt challenge the judge's definition of a sit-in as a "threat of violence" and the loss of money from canceled abortions as "extortion."
Judge Coar also limited important testimony. He permitted Norma McCorvey, the "Roe" of Roe v. Wade, and Sandra Cano, the "Doe" of Doe v. Bolton, to testify, but would not allow then jury to hear them identify their part in the historic abortion cases decided by the U.S. Supreme Court in 1973.
When Dr. John Willke, former president of the National Right to Life Committee and current director of Life Issues Institute, testified, he was asked whether he agreed with the first sentence of a 15-line statement issued by Joseph Scheidler concerning the use of force.
"It begins with a sentence that stated in effect that violence was at times justified," Willke says. "I carefully studied the balance of the paragraph, which is basically a discussion of violence in a just, defensive war, and a brief description of the legality of capital punishment."
When Willke tried to balance his reply by pointing out the remainder of the quote, he was ordered to confine his answers to "yes" or "no."
Congressman Henry Hyde provided some of the most compelling testimony and made direct comparisons between the Nazi death camps and pro-life activism.
"He's been playing hardball for a long time," says PLAL's Tim Murphy. "The NOW attorneys and the judge did not intimidate him."
Congressman Hyde will seek to reform the RICO statute, but that will not affect the NOW v. Scheidler defendants.
Scheidler says, "Our attorneys were gagged from bringing up abortion malpractice. They weren't allowed to tell [about the sidewalk counseling] we do at the abortion mills."
The pro-lifers has amassed evidence that the plaintiff abortion clinics had engaged in numerous instances of malpractice, but they were not allowed into evidence.
Scheidler also tells of the time the judge ordered Brejcha to stop "gesticulating" and "put your hands in your pockets" in full view of the jury. Nor was Brejcha permitted to use the term "abortion mill."
None of the defendants was accused of any act of violence, but the judge allowed NOW to proceed on the assumption that a sit-in was criminal extortion.
NOW was allowed to bring the testimony of anonymous witnesses whom Brejcha was not to verify in any way.
Finally the jury instructions were all canted to represent NOW's novel legal theory. The jury was allowed to find Scheidler and his friends liable if "persons associated with PLAN" engaged in more than one threat or extortion - "including threats of damage to economic interest" (read, lost abortions).
Brejcha says that there were so many inequities in the trial that it will be a chore just to select those which stand the best chance of overturning the verdict.
The verdict's repercussions
Scheidler is confident of victory on appeal. He says he knew almost immediately that the trial would be lost by watching the behavior of Judge Coar.
But while appeal is pending, depending on how broad the scope of the injunction Coar hands down, numerous other mini-suits could be filed across the country against local pro-life groups.
The $85,926.92 verdict will be automatically tripled and attorney fees will be added as part of the RICO judgment. The defendants may be required to either put up an appeal bond covering those costs or suffer attempts to collect the judgment while the appeal is ongoing.
The worst-case scenario is that the NOW v. Scheidler verdict could be upheld all the way to the U.S. Supreme Court. If this happens, free speech for unpopular political activities will be seriously, if not fatally, impaired. The protections of free speech and freedom of association, so hard-fought by the civil rights movement, will all but disappear. The only safe free speech will be within the shifting confines of politically correct speech. The only "benefit" is that conservatives could gloat when many who represent liberal causes are caught by their own snare.
The best-case, of course, would be the overturning of the verdict and a strong opinion supporting and restating the principles originally articulated in NAACP v. Claiborne Hardware.
Between now and then, there is the danger that the NOW victory will be used to put further pressure on pro-life activists. Murphy, Scholberg, and Scheidler, though, have no intention of quitting the fight to save the lives of the unborn.
So which one is this RICO verdict against Murphy, Scholberg, and Scheidler: The infamy of a Scarlet Letter, or the honor of a Red Badge of Courage?
Scheidler apparently sees it as an honor.
"You might be discouraged," Scheidler said in a letter to supporters. "Don't be. I'm not."
Defendant Andrew Scholberg
Andrew Scholberg is best known for his colorful, provocative, persuasive writing.
It was this talent which he used during his first forays into pro-life activism - fundraising and ghost-writing speeches and articles for Paul Marx, the Catholic priest who founded Human Life International, back in 1978.
After several years there, Scholberg moved to writing and editing Life & Family News through most of the 1980s.
"It was a major influence in the pro-life activist movement during that decade," says Scholberg.
From there, he hooked up with Joseph Scheidler and Pro-Life Action League (PLAL) of Chicago as the chief fundraiser for the legal defense of the already-filed RICO lawsuit. This is also where the National Organization for Women began tracking him. It was this association and his being listed as a co-sponsor of Operation Rescue in one of Randall Terry's 1987 brochures and engaging in rescues that resulted in his being listed as a defendant, then finally as a racketeer for life, in the NOW v. Scheidler lawsuit.
After leaving PLAL, Scholberg, 45, went to work fundraising for several other pro-life organizations including Women's Center (formerly Des Plaines Pro-Life).
Finally, in 1997, he opened up Scholberg Communications, a fundraising company primarily focused on raising support for pro-life, religious non-profit organizations.
"Andy considers being a racketeer in the eyes of the NOW ladies a real plus," said Scheidler. "He's proud of the title 'racketeer for life.'"
Defendant Tim Murphy
Tim Murphy joined the staff at PLAL in 1988 after several years of organizing and street activism with other groups. He was a multi-faceted activist who had organized "body finds" to recover the bodies of score of aborted children and arrange for their decent burial (Life Advocate July 1993). It was this particular activity which made him the object of NOW's wrath.
In addition to regular street activism from rescuing to organizing, Murphy was especially well-known for his investigative work. He uncovered evidence for more than 300 maternal deaths from "safe-legal" abortion.
True to his creative nature, Murphy and a couple of friends used the information to create a stunning set of large headstone-shaped placards with the name of a dead mother and other information on each one. The headstones were used in Wichita, Kansas during the Summer of Mercy in 1991 and were featured on the cover of Life Advocate in August of that year.
His files of lawsuits against abortionists and abortion clinics is in demand by activists across the country - though the information was banned for use by the defense during the NOW v. Scheidler trial.
Murphy is also sought after to teach others how to use legal means to research and develop files on abortionists and clinics. He is an accomplished writer and assists in publishing PLAL's Pro-Life Action News and has contributed work to The Wanderer and other publications.
"Tim said the NOWs know that their case is a big joke from beginning to end," said Scheidler. "They're trying to tie us up, but it isn't working. We win in the end."
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