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For one thing, the stakes were very high. This was not in defense of a single pro-lifer who had been accused of a crime. This was not in support of an injured woman who was seeking recovery from damages inflicted by an abortionist. No, this was a class action suit with potentially national repercussions. It had the potential to liberate or severely harm a significant segment of pro-life activity in the United States. This was the case of the National Organization of [Some] Women vs. Scheidler.
The original case was brought in June of 1986. The NOW organization scooped up many who had been involved in nonviolent direct action. During the next several years, the protagonists maneuvered back and forth. A major development was a court order forcing Mr. Scheidler’s Pro-Life Action League to turn over all financial records, correspondence, and all information in their files -- video, audio tapes, etc. -- to NOW lawyers.
In 1988, Federal RICO (Racketeer Influenced & Corrupt Organizations) charges were added to the case against Scheidler’s organization. Additional individual defendants were added, while others were dropped. In 1991, the case was dismissed in Federal District Court in Chicago, and a year later the 7th Circuit Court of Appeals upheld that dismissal. It was appealed to the Supreme Court which ruled that the RICO law against extortion did not exclude those who were seeking no financial gain. The Court also ruled that that law could be applied, even though there was no monetary gain.
NOW then proceeded with the lawsuit back at federal district level. NOW deposed literally every major pro-life activist leader in the country, including some individuals whose activities had brought them prison sentences. The depositions did not indicate any kind of conspiracy among the defendants. The case, however, continued with Judge David Coar ruling that NOW could represent, as a class action, all women who were not members of NOW but who, at any time -- past, present or future -- might use the services of a facility providing abortion. This included all abortion facilities in the U.S.
NOW’s basic claim is that these pro-lifers have conspired "to shut down the abortion industry" through a pattern of criminal acts of extortion. Pro-lifers have answered that this is a blatant attempt to stifle free expression and deny First Amendment rights. Further, they argue that it is an effort to bankrupt the defendants with years of litigation as well as to intimidate and to silence anyone else who dares oppose abortion. NOW claims that by picketing, leafleting and public speaking, the defendants have conspired to try to force the abortion industry to cease operations through coercion, fear and intimidation. In other words, NOW is equating legal public protest with legal extortion.
The accused are a small number of prayerful, pro-life individuals. They are activists. However, they have had a continuous record of peaceful, nonviolent protesting. NOW calls them mobsters who are trying to extort something from the multi-million-dollar abortion industry. This can only be called ludicrous.
With the passage of the FACE law (Freedom of Access to Clinics), it is obvious that pro-life people are already prohibited by federal law from stopping or interfering with anyone entering an abortion facility. But NOW wants this to move further, and it seems rather plain that they now want to stop legal protests and the use of First Amendment rights of freedom of expression outside of abortion chambers as well. If they prevail, the court will in effect be ruling that it is wrong for a sidewalk counselor to try to talk a woman into giving birth to her own child.
I was asked to testify because, in effect, the NOW lawyers had held me up as a "good pro-lifer" who opposed all of these kinds of activities in front of abortion mills. Mr. Scheidler, in contrast, was being portrayed as a “bad pro-lifer” who did all those nasty things. Their research had shown that during the decade of the ‘80s, when I was president of the National Right to Life Committee, the NRLC had not been involved in any type of pro-life direct action outside of abortion facilities. Therefore, they told the jurors that my organization and I stood in clear opposition to any type of pro-life direct action in froht of an abortion facility. NOW went even further than that, charging by inference that Mr. Scheidler was guilty of aiding and abetting those who burned down clinics and shot abortionists. NOW states that he and his colleagues used “inflammatory rhetoric” and showed “emotionally upsetting photos alleged to be fetuses before and after abortion.”
Having been acquainted with this tactic, I was very pleased to testify for Mr. Scheidler and his co-laborers in the vineyard. First the court did allow me to explain that the National Right to Life Committee had in place a specific set of policies when I became president. NRLC was single issue, i.e., limited itself to the protection of human life already conceived and, therefore, was opposed to abortion, infanticide and euthanasia. It had no policy concerning areas of human activity prior to fertilization, or parallel issues, such as capital punishment, war, nuclear arms, etc. I further explained that NRLC corporate policy was that officials and employees were not to be involved in any type of activity in front of an abortion chamber that might possibly lead, properly or otherwise, to arrest. I noted that this, under no circumstances, indicated opposition to rallies, parades, sidewalk counseling in front of an abortion chamber or elsewhere, public prayer and other such allied peaceful activities.
The NOW attorneys were not pleased. For the balance of that day and most of the next morning, I was subject to cross-examination. We labored under some very rigid rules set by the judge. One example may suffice. The NOW attorney showed a letter written by Mr. Scheidler who had been questioned whether or not he condoned violence. His answer was a lengthy one comprising about fifteen, single-spaced, typewritten lines, but it began with a sentence that stated in effect that violence was at times justified. That first sentence was highlighted, and I was asked, did I agree that Mr. Scheidler in this statement said he favored violence? “Please answer yes or no,” she stated. I carefully studied the balance of the paragraph, which was basically a discussion of violence in a just, defensive war, and a brief description of the legality of capital punishment. Abortion was mentioned, in a clear statement stating that the violence of killing the unborn should never be countered by violence against the abortion clinics or its practitioners. Clearly, in context, this was a statement against violence. In answering, I began to make the point that she could not ask me to answer only “yes or no” on the basis of the first sentence alone, but that I had to consider the sentence in context, as explained in the entire paragraph. Their attorney jumped up -- “Objection, Your Honor!” The judge said, “Dr. Willke, please answer the question, yes or no.” I felt helpless. She waited. Finally I said, “I’m sorry, Ma’am, I cannot answer the question the way you have asked it.”
This type of insinuated guilt by taking a sentence, or even a phrase, out of context was repeated time and time again for several hours. Sometimes I could answer. Occasionally I was allowed a little elaboration, but typically it was “Please answer yes or no.” I appealed to the judge, asking for advice, and was told to answer yes or no. He actually seemed like a nice enough guy, but these were the rules he had set down, which I found to be too restrictive, to put it mildly. However, overall, through the hours of cross-examination and the subsequent questioning by Scheidler’s very able attorney, Tom Brejcka, I believe my message did get across.
I have known Joe Scheidler for 25 years. We certainly have trod different paths in the pro-life movement. Mine has been one of wearing a three-piece suit, running major organizations, talking to elected officials, lecturing, being interviewed, etc. Joe has been called the “Green Beret” of the pro-life movement, and he’s been on the sidewalk, in rain and shine. He has directly saved babies by talking to their mothers. He has organized protests and rallies. In effect, we were both working very hard to save babies, but we did it in different ways. They claimed this showed that I was opposed to what he was doing. I tried to refute that message by explaining that there are many other paths in the pro-life movement -- praying, stuffing envelopes, acting as a taxi, contributing, etc. Joe and I have walked different paths, but I clearly was supportive of his.
My testimony threw great doubt on NOW’s continuous assertion that there was an organized, calculated, conspiratorial enterprise underground throughout the whole U.S., with Joe Scheidler calling the shots for that entire subversive, etc., etc. I made the point that Joe and his colleagues were a relatively small number of deeply dedicated individuals who were absolutely peaceful and nonviolent. They were totally convinced, as I was, that you don’t solve the violence inside the doors by committing violence outside the doors. My own record in decrying violence had been straight as an arrow and had been repeated thousands of times in front of cameras. I stated that I was sure that Joe’s convictions of nonviolence were the same as mine. I was able to state that, rather than being a tightly organized movement, the non-violent direct action that I knew so well was in fact a grass-roots movement. It springs up independently in different places at different times led by different people, and almost always locally engendered and carried out.
I told the jury that NOW’s description of an organization called Pro-Life Action Network (PLAN) as “powerful” was blown all out of reality as to size and influence. In fact it was very loosely knit, an alliance of a sort of pro-life activists who met occasionally, sometimes annually, to discuss issues and, to some extent, at least, plan some coordinated activities. Civil disobedience, I noted, was not my style, but that Dr. Martin Luther King, suffragists, anti-Vietnam people, etc., had all used such tactics in the past.
Through it all I tried to maintain a calm demeanor, a deliberate and somewhat authoritative way of speaking, in my best bedside, family-doctor manner. I was always polite -- “Yes, Ma’am ... Yes, Your Honor” -- and tried my best to match my wits using nothing but the truth, as I knew it. During which the radical pro-abortion prosecuting attorney was assailing me with the single purpose of destroying a valuable and necessary part of the pro-life movement.
In my mind, Joe Scheidler, and those who have worked with him, are true heroes of the pro-life movement. Each of us in the movement, contributing in very different ways, has tried to do our best to save babies and help women. Even so, these peaceful sidewalk warriors are a breed apart. They put not just their minds and hearts on the line, but their bodies too. This has made me think, from time to time, that my own contribution, such as it has been, on a personal level, at least, was quite small compared with theirs. I’m convinced that their reward before the throne above will be great.
Editor’s note. As this newsletter goes to print, the jury has ruled in favor of NOW, and has awarded two abortion clinics approximately $85,000 in damages.
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Posted 9 Sep 2000.
Copyright 1998 by Life Issues Institute.
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