By Terry Vanderheyden

WASHINGTON, November 22, 2005 ( – After almost 20 years of harassing litigation, the case of National Organization for Women v. Scheidler, Operation Rescue and three other pro-life defendants is heading back to the US Supreme Court for an unprecedented third time.

With oral arguments scheduled to take place on Nov. 30 at the high court, at issue is a federal appeals court decision that purported to reopen the case despite the Supreme Court’s complete rejection of NOW’s lawsuit in 2003.

“We are hopeful that the high court will reinforce what it said two years ago and finally bring this case to a conclusion,” said Jay Sekulow, chief counsel of the ACLJ, who serves as Counsel of Record for Operation Rescue in the case. “In a clear decision in 2003, the Supreme Court correctly concluded that the use of the federal Racketeer Influenced and Corrupt Organizations (RICO) statute – a law designed to combat drug dealers and organized crime – was wrongly used against the pro-life movement.”

The ACLJ response brief contends that there are three independent reasons why NOW’s RICO suit must fail. First, the Supreme Court said so in 2003. Second, the supposed remaining claim, namely, the crime of “violence” that “affects commerce,” simply does not exist under the relevant federal statute (the Hobbs Act, which prohibits robbery and extortion). Third, the only judicial relief NOW seeks – an injunction – is not available to private parties under RICO. The ACLJ brief concluded: “It is time for this marathon case to end.”


The case has been litigated since 1986, when NOW filed a lawsuit against various pro-life individuals and organizations by attempting to exploit the RICO statute to severely harass and hopefully personally bankrupt leading US pro-life activists and organizations. In 2003, the Supreme Court seemingly ended the RICO case by a vote of 8-to-1, ruling that merely obstructing the operations of a business, without obtaining any money or other property, was not “extortion.”

The high court concluded that “all of the predicate acts [under RICO] must be reversed,” that “the judgment that [defendants] violated RICO must also be reversed,” and that “the injunction . . . must necessarily be vacated.” When the case returned to the 7th Circuit, ACLJ attorneys asked that the case be sent back to the district court with instructions to enter judgment in favor of the defendants. 

NOW, however, argued that, despite the Supreme Court ruling, the RICO case was still alive and the injunction should remain in effect. The appeals court agreed that the Supreme Court had not finished the case, and that NOW could pursue the matter further in the trial court.

See a summary of the case from the ProLife Action League:

See Catholic New World, Catholic Archdiocese of Chicago’s newspaper, summary:

See related coverage:
  Supreme Court Justices Question Freedom Of Speech Issues In Rico Case