Introduction

In November 2023, our Thomas More Society—a non-profit public interest law firm based in Chicago and now blessed with lawyers at offices across the country—will mark a major milestone: 25 years of lawyering for protection of life, family, and religious liberty. We have spent this past quarter century in the pursuit of justice for a host of good people—brave souls and their supportive groups who have become embroiled in legal controversies for having labored in these vineyards.

While the Thomas More Society was incorporated a quarter century ago, my own experience with pro-life litigation goes back earlier. It was 37 years ago, in summer 1986, when I first met Joseph Scheidler, a pro-life leader who lived in Chicago but had achieved nationwide fame (our adversaries would say, notoriety or infamy) for having published a protest manual entitled Closed: 99 Ways to Stop Abortion (Ignatius Press, 1985 ed.). Worse (from the perspective of the nation’s cash-rich abortion industry and the pro-abortion National Organization for Women or NOW), Scheidler was an activist as well as an author. He had organized a nationwide alliance of likeminded pro-life activists dubbed the Pro-Life Action Network or “PLAN.”

The Scheidler book’s 99 chapters were largely innocent but bold, covering topics like Sidewalk Counseling, Truth Teams, Picket and Demonstration, Leafleting, Rallies and Marches, etc. Only a single chapter (Chap. 32) advocated lawbreaking (i.e., trespass), namely, “Sit-Ins (The Rescue).”

But Scheidler’s major premise, stated forthrightly in his Introduction, caused sparks to fly among pro-abortion advocates: “This book is based on the equation that abortion equals murder. It will make sense only to those who believe without question that abortion is the unjust, premeditated taking of an innocent human life.” This stark, sharp-edged proposition was endorsed by the prominent American Evangelical Protestant leader Franky Schaeffer. Schaeffer’s Foreword in Closed signaled and fostered a powerful new alliance between Catholic and Protestant pro-life activists, reflected in a growing roster of PLAN activists.*

The alliance of Scheidler and Schaeffer struck a raw nerve among abortionists and their partisans. Represented by Morris Dees and Richard Cohen of the Southern Poverty Law Center (“SPLC,” famous for bankrupting the last Southern remnants of the Klu Klux Klan), NOW and a pair of abortion providers retaliated. They filed a single-count class action complaint charging Scheidler, other named activists in St. Louis and Florida, and unnamed “co-conspirators” allied with PLAN, with unreasonably agreeing and acting to “restrain trade” in abortions in violation of the 1890 Sherman Antitrust Act. Dees and Cohen sought a nationwide injunction suppressing the defendants’ and PLAN’s campaign of illegal acts.

This case, captioned as NOW v. Scheidler, would steer my legal career in a new direction—and with it, the fledgling origins of the Thomas More Society began to be written. Our Thomas More Society was “forged in the crucible of courtroom conflict”—namely, in defense of this uniquely peculiar and immensely challenging litigation that traced an erratic path of ups and downs through all levels of the federal judiciary over nearly three decades.

In the summer of 1986, I was a veteran Chicago business litigator, having worked on a pair of cases that reached the U.S. Supreme Court, one of which involved the federal antitrust laws. I had volunteered to play an off-stage, merely advisory role for a group of younger lawyers at Americans United for Life (AUL), a public interest law firm then based in Chicago. AUL had undertaken to defend Scheidler and his Pro-Life Action League against the abortionists’ lawsuit spearheaded by Dees and Cohen.

AUL’s young lawyers urged a perfectly valid defense that the abortionists’ antitrust theory was fatally flawed, given that Scheidler’s protest was wholly non-economic, but our early motions to dismiss the antitrust claim on this legal ground were all denied. Thereafter, Scheidler had to testify under oath about his protest activities, whereupon AUL (whose lawyers were superb brief writers but lacking in trial experience) asked me to formally appear in court as his lead counsel. My senior partner, James Fox, Esq.—a devout Catholic prolifer and Chicago’s preeminent commodities lawyer—gave me his blessing. So, I filed my formal appearance. Little did I anticipate that this case would dominate my entire professional career; that it would soon morph into a massive federal racketeering (RICO) and extortion class action claim; or that it would trigger three successive appearances before the Supreme Court.

Despite the erratic trajectory of the case over three decades, one key tactic of opposing counsel’s strategy was consistent. They tried repeatedly to cast a dark cloud over the pro-life activist movement as indelibly tainted by violence, to stigmatize prolifers and incite others to shun them as unfit for public discourse. In retrospect, I believe that a signal achievement of our Scheidler defense—apart from winning a just result—was to counter and repulse this smear narrative. The abortion forces’ aim to erase the pro-life issue from public debate was thwarted, as protesters, rescuers, and sidewalk counselors kept the issue “alive.”

NOW v. Scheidler—the Legal Issues

Our opponents were angling to buttress their dubious legal claims with a flurry of publicity about “anti-abortion violence,” namely, their smear campaign linking Scheidler and his Pro-Life Action League to recent arsons and bombings at abortion clinics. The abortionists claimed in press releases—but not in court—that NOW was suing in order to “stop the violence.” At Scheidler’s deposition, Dees and Cohen dwelt on his controversial remarks—that he didn’t shed tears when abortion clinics were shut down, by whatever means. But Scheidler emphatically denied any link to violence, and kept citing Closed, in which Chapter 81 was entitled “Violence: Why It Will Not Work.”

Scheidler insisted that his tactics and advocacy alike were non-violent. After he elaborated on this theme at his deposition (noting that even midnight arsons or bombings at abortion clinics posed mortal danger to human beings, namely, police and firefighters, not merely damaging inanimate objects), Dees and Cohen suddenly withdrew from the case. They claimed they were “too busy” suing Alabama’s state police for racial bias. NOW’s general counsel Patricia Ireland and Chicago civil rights lawyer Fay Clayton then took over the reins.

One of Scheidler’s young activist recruits was an Evangelical preacher named Randall Terry, from Binghampton, New York. Terry organized a new round of protests called “Operation Rescue,” staging mass “rescues” that impeded access to abortion clinics in Cherry Hill, N.J., New York City, and elsewhere. In Chapter 32 of Closed, Scheidler endorsed “Sit-Ins (The Rescue),” but he advocated that “rescuers” invoke the common law defense of “Necessity”—contending that the law should excuse trespass violations when human lives were in imminent peril.

Late in 1988, NOW’s new lawyers, Ms. Ireland and Ms. Clayton, staged a press conference at the National Press Club, announcing that, because President Reagan would not prosecute “domestic terrorists”—like Terry and Scheidler—they were adding civil RICO and extortion claims to the Scheidler case. They also added Terry and Operation Rescue, among others, as new co-defendants. The RICO claim alleged that Scheidler, Terry, and the other defendants had conducted an “enterprise,” that is, PLAN, to force abortion clinics to give up their abortion business through a pattern of “predicate acts of racketeering.” The main “predicate act” alleged was “extortion”—that is, that Randall Terry’s “rescues” amounted to “threat, force or violence” that coerced abortion providers to “give up their property” by having to close down and thereby forced women to “give up” their rights of access to abortion providers.

Federal extortion law—the Hobbs Act—and state extortion laws modeled on federal law forbid “obtaining” of “property” by forcible or violent means. Yet, no rescuer obtained or even tried to obtain any “property” from the clinics or their patients. Rather, they were trying to save infants’ lives. Likewise, the antitrust claim hinged on the defendants’ engaging in “anti-competitive practices” by shutting down clinics through illegal “rescues,” blocking access to abortion providers.

These contentions were fatally flawed. The plaintiffs misapplied laws designed to protect “property” and to regulate competitive behavior within lawful economic markets by extending their reach to the domain of moral and political rights. Antitrust and unfair competition laws govern the behavior of competitors (actual and prospective) within lawful markets. Extortion laws protect property owners or possessors against others bent on forcible takeover of their property.

On the other hand, society’s decisions about whether and to what extent trade in certain products or services should be banned or regulated, and how property should be protected against predators, are political decisions. They are not economic ones. Public policy decisions within the political sphere are governed through the political process. And political debates are governed by First Amendment principles, not antitrust or criminal extortion laws.

Indeed, infants’ lives are not “commodities” or items of “property” that may be bought or sold. Whether those lives may be protected or killed on demand is a political question, not an economic one.

In other words, our clients were advocating for the “de-commodification” of abortion. They were not engaging in anti-competitive market practices. They were advocating that the abortion market be declared illegal.

Nor were they trying to acquire anybody’s property. Judge James Holderman used our terminology (“de-commodify”) in granting our motion to dismiss the plaintiffs’ antitrust claim. But it took him all of five years to grant the latest in our string of dismissal motions. He also threw out the RICO/extortion claims on the similar ground that our clients’ motives were political, not economic. The U.S. Court of Appeals for the Seventh Circuit affirmed his rulings with no dissenters.

The Supreme Court Unanimously Snatches Defeat from the Jaws of Our Victory

Alas, our victory celebration proved short-lived. The abortionists’ antitrust appeal to the Supreme Court was rejected. But the justices agreed to hear our opponents’ appeal of the RICO dismissal. On a cold day in January 1994, we received the bad news that the justices had ruled unanimously to reinstate the RICO and extortion claims, as the RICO law defined the pivotal concept of “enterprise” in terms that encompassed non-economic “associations” misused for criminal purposes.

Yet, there were kernels of hope in the High Court’s opinion. In a footnote, Chief Justice Rehnquist said the Court saw no First Amendment issue raised, so that issue remained fully open for further consideration. Justices Souter and Kennedy, in a concurring opinion, “stress[ed] that nothing in the Court’s opinion precludes a RICO defendant from raising [the] First Amendment.”

NOW and the abortion plaintiffs were emboldened by their Supreme Court victory. A new Clinton appointee, Judge David Coar, took over the case back in the lower court. The plaintiffs now went so far as to allege in an amended complaint that our clients had conspired with murderers and kidnappers of abortion doctors, escorts, and workers. To our chagrin, a few purported “prolife” activists openly advocated “justifiable homicide.” We found ourselves starved for funds while having to defend depositions of many pro-life activists nationwide. Over the next four years we were hanging tough while embarked on what I’ve grimly recalled as our “pilgrimage through the valley of the shadow of death.” We were in desperate straits, with barely enough funds to pay out-of-pocket costs. Violence flared up repeatedly, as abortion doctors, escorts, or workers were assassinated or wounded.

The mystics (and nowadays even existentialists) would say we were going through the dark night of the soul. But we were heartened and even enthralled by the righteousness of our cause. The Scheidlers refused to compromise. We pressed ahead.

My law partners were at wits’ end, as the case had devoured huge quantities of my otherwise billable time. After 11 years, any “pro bono” glow had faded. Judge Coar denied summary judgment and certified the case as a national class action, ruling that it would culminate in a widely publicized jury trial targeting our “extortionists” and “racketeers.”

Jim Fox had retired from my law firm leadership. My new managing partner told me at a meeting I should either “quit the case or quit the firm.” Quitting the case was not an option.

A Groundswell of Support

We mounted a spirited defense at trial, though the verdict and judgment were adverse. But there were some positive factors at work too. Our loss at the Supreme Court spurred a groundswell of support, some from quarters one would not readily expect.

Most encouraging was a paid New York Times advertisement from the Seamless Garment Network that appeared on March 27, 1994, headlined “A Sub-Zero Blast Against Conscientious Protest” and calling the ruling “a draconian measure for strangling social and political dissent.”

Among the signatories listed on the ad were Joseph E. Lowery, President of Dr. Martin Luther King Jr.’s organization, the Southern Christian Leadership Conference, or SCLC, and Rev. Bernice King, Dr. King’s daughter. A host of other distinguished individuals and groups from protest movements also signed, including PETA, peace activists, environmentalists, civil rights leaders, the American Indian Movement, and more. Suddenly, we had allies! Just prior to trial, Randall Terry surprised us by secretly negotiating a settlement, on terms never made public. But Terry’s lawyers, associates of Jay Sekulow and the American Center for Law & Justice (ACLJ), continued as defense counsel for “Operation Rescue.”

Before the trial, Judge Coar ruled that “a plethora of evidence” supported plaintiffs’ claims that our clients adversely impacted the “intangible property” of the abortionists and their doctors and patients. He found no support, however, for plaintiffs’ smear tactic—the claim that our clients engaged in crimes of violence, such as the RICO “predicate crime of murder” or “kidnapping.” Those claims were deemed out of bounds. Nor was there evidence to support any link between defendants and “various acts of arson or robbery.”

We received critical help from many defense witnesses. The eminent Congressman Henry Hyde, chair of the House Judiciary Committee, and Fr. Ted Hesburgh, president emeritus of Notre Dame, agreed to testify as character witnesses for Scheidler (although Fr. Hesburgh later was unable to testify, his mere inclusion on our witness list provoked our opponents’ wrath). “Miss Norma” McCorvey, the anonymous Roe in Roe v. Wade, as well as Sandra Cano, the Doe in Roe’s companion case, Doe v. Bolton—both of whom had embraced the pro-life cause—testified on the peaceful nature of pro-life protest.

Among our other defense witnesses was one young mother who had decided—owing to pro-life intercession—not to abort her child. When she identified her baby son sitting on the lap of co-defendant Tim Murphy, and Murphy stood up so the jurors could see him, the pro-abortion lawyers erupted, calling it “inflammatory” and “prejudicial.” But it wasn’t a planned tactic, only vivid proof of the truth at the heart of our defense. These nameless “fetuses” were not disposable commodities but live (albeit often unseen) human beings—part of human life as a continuum.

Still, Judge Coar agreed with plaintiffs’ theory that wholly passive temporary blocking of physical access to abortion providers’ premises constituted “forceful” or even “violent” extortion—even though the rescuers lacked the slightest intent to acquire any “property” from the abortionists whom they blockaded.

The abortionists’ legal theory attacked the very concept of non-violent protest, turning Gandhi’s notion of satyagraha (“soul force” or “truth force”) upon its head. Putting one’s physical self between a woman seeking “health services”—in NOW’s typical euphemistic vocabulary—and the clinic she was trying to enter was said to be an aggressive, violent act. According to this logic, going limp upon being arrested wasn’t “non-violent” but rather aggressively “resisting arrest.” And pro-life handbills were “thrust” at others as if the very effort to persuade was weaponized.

Recalling NOW’s pretrial publicity about “stopping the violence,” and in the teeth of Judge Coar’s prior ruling that the claims of “violence” including “murder” and “arson” were out of bounds, plaintiffs’ lawyers repeatedly brought up “pro-life violence.” In our opponents’ opening statements alone, shootings and bombings were highlighted no fewer than five times. But motions for mistrial were rebuffed.

Following brief deliberation, the jury returned a verdict, finding all defendants liable for extortion and RICO violations. But it was clear that the case would turn on the critical issue of law, not evidentiary issues. Was Dr. King’s tactic of “peaceable, non-violent direct action” (see, Letter from Birmingham Jail, April 1963) punishable as “extortion”? Was directing a campaign featuring any “pattern” of such demonstrations “racketeering”? Was sitting on a lunch counter stool an “acquisition” of the owner’s “property”?

Our prolifers were not “racketeers,” on par with gangsters and hit men! Yet that was the jurors’ verdict, given the tight strictures of Judge Coar’s instructions on the pivotal legal issues.

After hearing more testimony and argument at the second phase of our trial on whether the court should enter a nationwide injunction, Judge Coar entered his final judgment in July 1999. Damages were assessed and tripled under RICO, up to more than a quarter million dollars. A nationwide injunction barred the conduct or threat of “rescues” throughout the U.S.

We Lost Our Initial Appeal. But We Won (8-1) at the Supreme Court!

We appealed to the Seventh Circuit Court of Appeals, after the Scheidlers put up their family home equity as collateral to cover the amount required for the appeal bond.

But the Seventh Circuit unanimously affirmed the RICO judgment. Not a single judge voted for rehearing. Our last chance was to seek relief from the same Supreme Court whose justices had unanimously rebuffed our appeal a decade earlier. But mirabile dictu, the High Court agreed to review NOW v. Scheidler a second time, and the result this time was different.

Chief Justice Rehnquist’s 8-1 opinion, handed down on February 22, 2003, was decisively in our favor. He concluded his opinion by saying that “the effort to characterize [defendants’] actions here as an ‘obtaining of property from’ [the abortion providers, women, and doctors] is well beyond” the scope of extortion and RICO. He wrote: “Because all of the predicate acts supporting the jury’s findings of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” And then, in conclusion: “The judgment of the Court of Appeals is accordingly REVERSED.” 537 U.S. 393, 411 (2003) (emphasis in original). These directions could not have been any more clear or explicit.

Having joined the chief justice’s majority opinion, Justice Ginsburg, along with Justice Breyer, also wrote a separate concurring opinion. She added a footnote memorializing her stunning exchange with Ted Olson, President George Bush’s Solicitor General, who was arguing against us on the core issue about the scope of the federal extortion law:

At oral argument, the Government was asked: “[D]o you agree that your interpretation would have been applicable to the civil rights sit-ins?” The Solicitor General responded: “Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating.”

In retrospect, I believe this was a pivotal moment for our case and also for pro-life activism. The message sent by our host of amici curiae—as Justice Ginsburg’s footnote proved—was powerful. This was true especially of the Southern Christian Leadership Conference (SCLC), whose old headquarters on Atlanta’s Auburn Avenue (up the street from the famed Ebenezer Baptist Church) I had visited repeatedly. SCLC filed or joined a succession of amicus briefs, as did many other amici from across the spectrum of social reform movements. The late former U.S. Attorney General Ramsey Clark sat next to me as co-counsel on the last day of our injunction hearing before Judge Coar. Now our “optics” were altered. We were no longer civil society’s violent outcasts. Rather, we now held ourselves out as human rights reformers who could plausibly lay claim to the legacy of America’s civil rights movement.

The Abortion Forces Try to Overturn the Supreme Court’s Ruling

But the abortion forces were adamant in resistance to our victory. The case was far from over. The 8-1 Supreme Court majority, they said, had overlooked four findings by the jury that unnamed perpetrators somehow “associated” with our clients had committed four unidentified acts or threats of violence.

On remand from the Supreme Court, a “settlement clerk” on the Seventh Circuit staff suggested that we should consider some form of “settlement” (provoking our great surprise and concern). We demurred, but in February 2004, our three-judge Court of Appeals panel, headed by Judge Diane Wood, ordered a remand to Judge Coar with directions that he consider resuscitating his earlier RICO decree, to whatever extent necessary. Judge Wood directed that Judge Coar address the fact that the justices had “overlooked” four acts of threats of violence. Then he should also consider adopting a sweepingly new construction of the Hobbs Act, the federal extortion law, as outlawing any acts or threats of violence affecting interstate commerce, even if unconnected to any effort at acquiring “property” by threat, force, or violence.

This was a startling turnabout. On rehearing, Judge Manion, one of only two dissenting judges in active service on the Seventh Circuit, said that the abortion lawyers should have asked the Supreme Court for a rehearing so they could have addressed this supposed mistake, rather than flouting the justices’ 8-1 dismissal mandate. This time even the AFL-CIO supported us as an amicus curiae, arguing that Judge Wood’s suggested new legal interpretation of the Hobbs Act would expose striking unions to ruinous RICO lawsuits whenever a series of scuffles broke out on picket lines.

We Took a Third Long-shot Appeal to the Supreme Court. We Won Again!

Yet again we had to seek Supreme Court review. The odds against securing review by the Supreme Court are over 100:1—even on the first try. Here, we were trying to secure review for an apparently unprecedented third hearing. We believe that Judge Wood’s gambit was based on our steeply unfavorable odds. She lost her gambit.

We won review. We also prevailed on the merits, this time unanimously. The Court’s third Scheidler opinion was issued on February 28, 2006. Justice Breyer quickly disposed of Judge Wood’s contrived new legal theory: “Congress did not intend to create a freestanding physical violence offense in the Hobbs Act.” The justices were notably silent about our initial argument, that the Seventh Circuit had flouted the High Court’s mandate, perhaps in deference to judicial decorum. But Justice Stevens (the sole dissenter in Scheidler II), who was presiding because Justice Rehnquist was ill, made a closing comment at the oral argument that clearly suggested serious resentment on the justices’ part that their earlier mandate had been ignored.

Quibbling over Recoverable Costs: 2006 to 2014

NOW v. Scheidler’s last eight years were spent in protracted battles over our claim for a fraction of the out-of-pocket costs incurred over the prior two decades. The abortionists fought tooth and nail over every penny. But their last-gasp appeal trying to deny us the meagre amount of costs we could document was finally dismissed in 2014 by a new Seventh Circuit appellate panel, headed by Judge Frank Easterbrook, as “preposterous.”

In retrospect, the epithet might well apply to the entire case—a long, arduous, and erratic federal judicial proceeding premised on one fatally flawed claim after another.

Does Pro-Life Activism Play a Significant Role in Winning Hearts and Minds?

During the latter years of the Scheidler litigation, and more recently in this post-Dobbs environment, we have been aggressively engaged, both on offense and defense, in most of the 50 new state battlegrounds where abortion issues are now so hotly contested.

Wholly apart from Roe’s patent defects as a matter of legal (and historical) scholarship, the Dobbs ruling on June 24, 2022, was also the fruit of more than a half century of sustained, ardent, and indomitable pro-life protest across the entire United States. Time and again, we encountered the abortion forces’ refrain that Roe was absolutely “entrenched” and “settled” law, and that those of us who recoiled against its abortion-on-demand regime were futile in our opposition and wholly stymied by Roe’s pseudo-constitutional mandate. Yet pro-life outcry and protest never faded, let alone ceased.

We’ve been blessed to have crossed paths with so many of the pro-life heroes who labored in this vineyard. Many of their names have been featured in our recounting the protracted narrative of the NOW v. Scheidler case. But there were so many others. We salute them, but especially the late Joe Scheidler, his widow Ann, and their helpers Andy Scholberg and Timothy Murphy, who stayed the course and refused to surrender in the teeth of the abortionists’ legal onslaught.

Amen!

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* Franky Schaeffer, son of the late Francis Schaeffer (1912-1984), has since repudiated his antiabortion activism.

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Original Bio:

Thomas Brejcha is the founder, President, and Chief Counsel of the Thomas More Society, a notfor-profit national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty. The Society has assisted many pro-life leaders, including David Daleiden, Lila Rose, and the late Joe Scheidler, whose decades-long “RICO” case he chronicles here.