Potential Supreme Court Nominee Shows the Audacity of “Choice”

One of the candidates most frequently mentioned as a possible replacement for retiring Supreme Court Justice John Paul Stevens is Diane Wood of the federal Seventh Circuit Court of Appeals. News reports mention possible controversy arising from her involvement in a case arising out of anti-abortion protests in the ’90’s. As Paul Harvey used to say: and now, the rest of the story.

In a case originally filed in 1986, the National Organization of Women and several abortion clinics brought a class-action lawsuit against pro-life leader Joe Scheidler, Operation Rescue, and other pro-life activists and organizations. NOW purported to represent the class of all women who use or might use abortion clinics, while clinic plaintiffs represented a class of all U.S. abortion clinics. Plaintiffs charged Scheidler and the other defendants with violating the Racketeering Influenced and Corrupt Organization Act (RICO), a comprehensive federal law enacted to provide harsher remedies against organized crime. NOW’s theory was that Scheidler and others conspired to “extort” property from clinics and their patients by illegally interfering with patients’ access to abortions. The RICO claim was initially thrown out on the basis that the protesters’ activities were not economically motivated. The Supreme Court disagreed, and the case was reinstated based on its holding that an economic motive is not a necessary element of a RICO claim. NOW v. Scheidler, 510 U.S. 249 (1994).

Back in the trial court, NOW and the abortion clinics relied on “extortion” as the underlying RICO crime, which required them to prove that Scheidler et al. had acted to “obtain property” from them by unlawful coercion. Plaintiffs argued that the clinics’ “right” to perform abortions and women’s “right” to receive abortions constituted “property.” Furthermore, any “interference” with such right equated to “obtaining” it. This was a previously unheard-of definition of “extortion.” Buying into this theory, the district court allowed the jury to hold the defendants liable for “racketeering.” The court also took the unique view that RICO gave NOW and the abortion clinics (who were private—not government—plaintiffs) the right to injunctive relief against the defendants. The court imposed a dubious, 10-year injunction against interfering with abortions nationwide. When the defendants appealed, Diane Wood, writing for the Seventh Circuit, affirmed every part of the decision.

Once again the case went to the U.S. Supreme Court. This time the Court ruled 8-1 in the pro-lifers’ favor, holding that their actions did not constitute “obtaining property” from abortion clinics or their patients. Scheidler v. NOW, 537 U.S. 393 (2003). (Stevens was the lone dissenting justice.) The Court concluded, “Because all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed.”

And so it appeared that the 17-year-old litigation had finally ended in victory for the pro-lifers. But NOW was not going to take “no” for an answer. When the case arrived back in the Seventh Circuit, which was supposed to simply send the case back to the district court for dismissal, the NOW plaintiffs unveiled a new argument, one the Supreme Court had allegedly failed to address. Relying on a tortured reading of the plain language of the RICO statute, and notwithstanding the Supreme Court’s holding, NOW insisted that the injunction could nevertheless remain intact, based on four “freestanding” instances of violence or threat of violence the jury purportedly found. (The tale of some of these alleged incidents, and LLDF’s involvement in uncovering their fraudulent underpinnings, can be found at http://www.worldmag.com/articles/6371). And if the injunction stood, the plaintiffs were also entitled to collect attorney fees from the defendants, which by this time would have amounted to millions of dollars.

Rather than rejecting NOW’s strained argument out of hand, Diane Wood, writing for the Seventh Circuit, freely embraced it. In so doing, she led the Seventh Circuit to effectively “reverse” the Supreme Court. Instead of sending the case back to the district court to be dismissed, Judge Wood’s opinion ordered the district court to “determine whether the four predicate acts involving ‘acts or threats of physical violence to any person or property’ are sufficient to support the nationwide injunction that it imposed.” NOW, Inc. v. Scheidler, 91 Fed.Appx. 510, 513 (2004).

In an unprecedented move, the Supreme Court agreed to hear this case for a third time on the merits. In a full reversal of the Seventh Circuit (and in an opinion this time joined by Justice Stevens) the Court voted 8-0 that “Congress did not intend to create a free-standing physical violence offense” under the relevant law. To prevent any more reruns, the Court specifically remanded the case for “entry of judgment for” the pro-lifers. Scheidler v. NOW, 547 U.S. 9 (2006).

In sum, pro-lifers have ample grounds for opposing Diane Wood as a Supreme Court nominee. In addition to her votes to strike down pro-life legislation such as partial birth abortion bans and an informed consent law, her rulings in NOW v. Scheidler reveal her extreme ideological bias in any matter touching on the issue of abortion.