In Roe v. Wade,(1) the United States Supreme Court held that women have a constitutional right to choose to have an abortion. Yet, since shortly after Roe, women have often found themselves unable to exercise that right because of forcible and violent interference by abortion opponents.(2) In March 1998, the National Organization for Women (NOW) and two women's health clinics that provide abortions went to trial in NOW v. Scheidler to ensure that the constitutional right recognized twenty-five years earlier would exist not just in theory, but in reality.(3) After a seven-week trial, the federal jury found each of the defendants liable for 121 predicate (criminal) acts under the Racketeer Influenced and Corrupt Organizations Act (RICO).(4)
NOW v. Scheidler was filed in federal court in 1986.(5) The case was brought by NOW, the Delaware Women's Health Organization (DWHO), and the Summit Women's Health Organization ("Summit")(6) against Joseph Scheidler; Randall Terry;(7) Andrew Scholberg; Timothy Murphy; the Pro-Life Action League, Inc.; ("Scheidler's organization"); and Operation Rescue ("Terry's organization") for violations of the racketeering laws by operating an enterprise--the Pro-Life Action Network (PLAN)--through a pattern of criminal acts.(8) Part I of this Article will discuss the historical context in which that suit arose. Part II will detail how the Racketeer Influenced and Corrupt Organizations Act (RICO) applies to Scheidler. Part III will discuss the evidence presented at trial. Part IV will show that, given the true facts of their conduct, the defendants' cry of First Amendment infringement rings hollow.
THE CLIMATE OF TERRORISM IN THE EARLY 1980S
While Roe v. Wade(9) guaranteed women the right to choose to have an abortion, even after Roe, women's health clinics that provide abortions, together with their volunteers, staff, and patients, continued to encounter enormous difficulties exercising that right, due to physical interference from abortion foes.(10) By the early 1980s, anti-abortion extremists had embarked on a campaign of terrorism designed to chill the exercise of this constitutional right.(11) They vowed to stop at nothing to prevent abortions from being performed, and their tactics ranged from forcible harassment, like shoving patients and staff and blocking entrances, to the most violent of crimes, such as bombings, arson, and kidnappings.(12) In 1986, after futile attempts to persuade President Ronald Reagan and his Attorney General to take steps to end the violence, NOW and two clinics decided to fight back.(13) Realizing the need for a nationwide remedy against anti-abortion extremists, these plaintiffs brought a national class action lawsuit in federal court against Joseph Scheidler and the other key leaders and organizations.(14) This suit was both brave and novel. It was brave because it was brought against terrorists by those they had terrorized. It was novel because it was a new use of the racketeering laws,(15) and it was the first such case brought as a class action.(16)
Because PLAN's campaign of terrorism had been launched against every woman who sought an abortion and every clinic in the country that offered them, NOW brought the case for both its members and the class of all women who had used or would use the clinics; and the clinics brought the case for the class of all women's health clinics in the continental United States that provided abortion services.(17)
Since Roe, anti-choice forces had tried a variety of tactics to make clinics and women give up their rights to provide or receive abortions, but by the early 1980s, the tactics had turned truly ugly.(18) Glue was poured into door locks, and clinics were bombed, set on fire, and polluted with butyric acid.(19) While the tactics varied, the goals were the same: to shut down the clinics so women could not receive any medical services there and to force the clinics to stop performing abortions.(20) Although the class of clinics provided a full range of women's health services from general gynecology and birth control to abortion,(21) Scheidler, Terry, and their followers targeted the clinics as "abortion mills" in their efforts to marginalize them and incite acts of violence against them.(22)
Abortion opponents who protested outside the clinics ran the gamut from lawful protesters who prayed, sang, and passed out leaflets, to lawful but obnoxious protesters who screamed "murderer" and "baby-killer," to outright thugs who physically assaulted the women and the clinic escorts and barricaded the doors.(23) While the first two types of protests are, of course, protected by the First Amendment, the third is not. But the limits of the law made no difference to Scheidler and his followers, who declared themselves above the law, and who wove obtuse arguments about how their end justified their means.(24) Answering only to what they called "higher laws," PLAN activists used whatever tools of force and violence they found effective.(25) Scheidler declared that he would "[n]ever" follow the law of the land(26) and urged his growing band of followers to "stop abortion in every way possible."(27)
The women who used the clinics were harassed regardless of the reason for their visit, as the evidence at trial would demonstrate.(28) Even if they were merely seeking annual physicals, contraceptives, or cancer screening, they were threatened, attacked, shoved, and grabbed.(29) NOW members and others who volunteered as escorts to shield the patients were subjected to the same brutal harassment.(30)
Some of the extremists' worst tactics were saved for doctors and other clinic staff. They stalked them, threatened their lives and those of their families, and damaged or destroyed their cars and other property.(31) They even printed and distributed "wanted" posters detailing where they lived, descriptions of their cars and the routes they took to work, and the names, ages, and schools of family members.(32) The terrorism was not isolated: it happened across the entire country, and it happened in remarkably similar ways--it was not only relentless but highly organized.(33)
It was in this climate of terrorism that NOW, Summit, and DWHO brought their case.
RICO: TAILOR-MADE FOR SCHEIDLER
The Racketeer Influenced and Corrupt Organizations Act (RICO),(34) prohibits those engaged in an interstate "enterprise" from conducting the affairs of that enterprise through "a pattern of racketeering activity."(35) RICO allows either a government prosecutor or private plaintiffs who have been injured in their business or property(36) to hold the leaders of the "enterprise," responsible for the criminal acts of its foot soldiers.(37) Even if those who operate the enterprise keep their hands clean and avoid personal liability for the underlying illegal ("predicate") acts, they may be held responsible under RICO for operating the enterprise through a pattern of that illegal conduct.(38)
The elements of a RICO violation are straightforward. First, under 18 U.S.C. [sections] 1962(c), there must be an enterprise, which can be any type of entity, whether a formal, legal organization, like a corporation, or an informal association-in-fact, such as a coalition of anti-abortion groups.(39) The enterprise need not be an illegal organization in itself; it is enough that it carries out illegal acts along with some lawful ones.(40) The enterprise must have some structure, although not much is required.(41)
Second, the defendant must be associated with the enterprise and must operate or manage it.(42) Third, the enterprise must affect interstate commerce.(43)
Fourth, the enterprise must be conducted through a "pattern of racketeering activity."(44) Racketeering activity includes any act or threat involving several enumerated state-law felonies or any act that is punishable under several enumerated federal statutes.(45) These enumerated crimes are called acts of "racketeering" or "predicate acts."(46) RICO's "pattern" requirement calls for some continuity among the predicate acts, although it may be satisfied by as few as two related acts within a ten-year period.(47) These elements fit the defendants' conduct like a glove, as the jury in Scheidler would conclude.(48)
Among the most visible anti-abortion leaders in the mid-1980s were Joseph Scheidler, Andrew Scholberg, Timothy Murphy, Randall Terry, and their organizations, the Pro-Life Action League, Inc., and Operation Rescue.(49) In 1984, Joseph Scheidler, Andrew Scholberg, and a handful of other self-described "radical" antiabortion leaders formed a loosely organized coalition that they named PLAN--the Pro-Life Action Network.(50) PLAN was a nationwide organization of anti-abortion groups that got together to plan ways to intimidate clinics so that they would stop offering abortions.(51) PLAN functioned largely through annual conventions held in cities all across the country,(52) with private sessions for "known radicals" only.(53) The individual defendants rarely missed a PLAN meeting, and they often played organizational roles in planning them, setting their agendas, and organizing field training to teach new ways to interfere with clinic operations.(54) PLAN also had a Leadership Council that met at irregular intervals between the annual conventions.(55) At these meetings, the Leadership Council members assigned tasks such as networking, fund raising, handling public relations, and developing new tactics.(56) It was a classic RICO "enterprise."
PLAN operated much like the Mafia.(57) In fact, in early correspondence, Scheidler called PLAN the "pro-life mafia."(58) Tellingly, mainstream groups like the National Right-to-Life Committee, which was pledged to oppose abortion through lawful means, were not invited to participate.(59) Instead, PLAN took its inspiration from felons who had committed violent crimes, like bombings, arson, and kidnapping of doctors.(60) Scheidler praised...