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Home Action News December 2002 Supreme Court (Part 2)

December 2002 ACTION NEWS | VOL. XXI No. 3

NOTE: Due to its length and number of pictures, this article is split into two parts.

Part 1 Part 2

U.S. Supreme Court Hears Scheidler Appeal, cont.

Olson Concedes Need for Remand, Maybe New Trial

Justice Sandra Day O'Connor suggested to Olson that even if clinic owners could claim extortion, women seeking abortions couldn't. "If we agreed with your view—and I'm not sure we will—about property including the right to control business assets . . . could the jury verdict be upheld here?"

O'Connor: "Is your bottom line a new trial?"
Olson: "That might have to be the result."

Olson replied, "I think that it would have to be sent back to the Seventh Circuit for a remand to examine that question." A remand would send the case back to the Circuit Court for clarification.

The jury was never instructed to distinguish between "extortion" of clinic owners' right to conduct the business of abortion and "extortion" of women's "property right" to receive abortion services. There is no way to know which species of "extortion" the jury had in mind.

O'Connor remarked that "we have no idea what the jury went on," and asked Olson, "Is your bottom line a new trial? Because the charge doesn't match the theory you're putting forward."

[Attorneys Brejcha, Untereiner and Englert]

Attorneys Tom Brejcha, Alan Untereiner and Roy Englert
[Photo by Wendy Wright]

Olson answered, "I think . . . that might have to be the result."

Olson argued against the injunction, backing Englert's argument that the RICO statute does not allow private parties to receive injunctive relief, as the Court has consistently held.

Fay Clayton Out of Her Depth

NOW's position was already weakened by the Justices' exchanges with Engler and Olson before Fay Clayton began her defense of the lower court ruling.

Clayton's argument in favor of the injunction didn't seem to impress the Justices. She claimed that the language of the RICO statute doesn't restrict private parties like NOW from seeking injunctive relief. In concert, Justices Scalia and Breyer asked, "What else could it mean?" suggesting they thought the statute clearly allows only the Government to seek an injunction.

[Petitioners and attorneys confer after hearing]

(From left) Attorney Roy Englert, Tim Murphy, Joe Scheidler and Attorney Tom Brejcha confer after the oral arguments
[Photo by Wendy Wright]

Justice Ruth Bader Ginsburg seemed unconvinced by Clayton's argument that women have some kind of "property right" to abortion services which was "extorted" from them, and suggested that NOW's own brief seemed to concede that. This echoed Justice O'Connor's earlier remarks to Ted Olson.

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Scalia Interrogates Clayton

Justice Breyer expressed concern that extortion charges could be brought against protests like the lunch counter sit-ins of the civil rights movement. Clayton responded, "Martin Luther King didn't tell his followers to go into the Woolworth's and bash people around."

Justice Scalia interjected, "You've used the term 'violence' several times. That's not what the instruction required. As your argument to the jury itself indicated, it was enough if they obstructed the entrance and 'failed to part like the Red Sea' if somebody wanted to go in."

[Attorneys Wilson and Gaffney ]

California Attorneys Colette Wilson and Ed Gaffney wrote key court briefs
[Photo by Wendy Wright]

"Not true," Clayton insisted.

Scalia then read aloud Clayton's own words from the trial transcript. She had told the jury that the defendants would be guilty of an extortionate act unless they were to "part like the Red Sea, and let a woman through" to the abortion clinic. "In other words," said Scalia, "you told the jury that you could find an offense . . . by the mere blockade. It wasn't smacking people around. It was just not letting people in."

"No, your honor," Clayton insisted.

"So," said Scalia, "you're changing your position here."

"No, your honor."

"I see," said Scalia skeptically.

The hearing ended with a rebuttal by Roy Englert.

Scheidler Cautiously Optimistic

The Justices seemed unwilling to accept the notion that "extortion" is involved when a woman is temporarily prevented from getting an abortion. NOW's case depended largely on highly emotional testimony from women who claimed to feel threatened when approaching clinics. If only clinic owners can claim extortion of their property rights, much of NOW's case goes out the window. Several Justices seemed reluctant to accept even the clinic owners' extortion claims.

[Racketeers]

"Racketeers" (from left) Tim Murphy, Joe Scheidler and Andy Scholberg with Tom Brejcha
[Photo by Wendy Wright]

The federal injunction also came under close scrutiny, especially since a 1994 Freedom of Access to Clinics (FACE) law makes it redundant. But upholding the injunction could impact other protest groups, as attested to by the nearly seventy groups and individuals that submitted amicus briefs supporting Scheidler's appeal.

Until a decision is handed down next year we remain cautiously optimistic. Though it seems unlikely, the court could decide in NOW's favor, upholding the extortion charges and the monetary damages that go with them, as well as the federal injunction. They could also reverse the jury verdict in toto, handing the pro-life side an outright victory.

It is also possible that the court could remand the case to the Appelette Court or send it all the way back to District Court for a retrial. This would still be a victory for the pro-life side. NOW would return to the lower court with a far weaker case than it had in 1998.

A decision is expected by June.

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