Chief Counsel Report: Update on Protecting Human Life & Breaking Judicial Gridlock
May 2, 2005
Report by Chief Counsel Jay Sekulow
U.S. SUPREME COURT
Request Made to Overturn Lower Court Decision Reopening Abortion Protest Case
On April 8, 2005, we asked the Supreme Court to review and reverse a lower court decision that resuscitates the nearly 20-year-old RICO lawsuit brought by the National Organization for Women (NOW) against pro-life activist leaders and organizations. Filed on behalf of Operation Rescue (OR), the petition contends that a federal court of appeals defied the Supreme Court by reopening the case after the Supreme Court in a 2003 decision definitively rejected all of NOW's claims. Other defendants in the case have also asked the Supreme Court to hear the case. The Supreme Court could announce as early as June whether it will grant the two petitions.
The Supreme Court settled this issue two years ago when it ruled 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. That the federal appeals court has chosen to ignore that ruling and put the pro-life defendants through more delay, and yet another set of legal hoops, is profoundly unjust.
In the underlying case, NOW v. Scheidler, NOW and two abortion businesses claimed that Operation Rescue, the Pro-Life Action League and three individual pro-lifers, including Joseph Scheidler, formed a racketeering enterprise engaged in extortion against abortion businesses, their employees, and their patients.
NOW argued that pro-life sit-ins and other obstruction of abortion businesses constituted extortion under the federal Hobbs Act (and under state law and the federal Travel Act) and racketeering under RICO. In 1998, a federal district court in Chicago ruled against the pro-life defendants and issued a nationwide injunction and ordered the defendants to pay damages of more than a quarter million dollars. The defendants appealed, but the U.S. Court of Appeals for the Seventh Circuit affirmed the judgment.
As representatives of OR, we, along with a separate team of attorneys representing Scheidler and the remaining defendants, then took the case to the Supreme Court. In an 8-1 decision in February of 2003, the Supreme Court ruled 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, we 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 in alive and the injunction should remain in effect. NOW argued that the Supreme Court had not reversed all of the RICO violations.
The federal appeals court ruled that NOW might be correct and sent the case back to the district court to see if the nationwide injunction could be sustained. Our attorneys and the attorneys for the Scheidler defendants promptly filed requests for the entire 7th Circuit to review the decision of the three-judge panel to reopen the case. That request was denied, over three dissenting votes.
We filed a petition asking the Supreme Court to take the case. Among the questions posed to the high court: Does the 7th Circuit's disobedience of the Supreme Court warrant summary reversal (an infrequent but effective means of reigning in wayward lower courts)?
Was the 7th Circuit wrong in ruling that private parties like NOW could get an injunction under RICO? (Most courts have ruled that only the federal government can sue for a RICO injunction, as opposed to damages. The Bush Administration filed a brief agreeing with us on this point in the previous round in the Supreme Court, but the high court declined to reach this issue because it had already rejected the case for other reasons.)
In conclusion, our petition stated: This meritless but gargantuan lawsuit has drained the resources of courts and counsel for nearly 20 years now. This Court finally put a definitive end to the case, but the Seventh Circuit on remand has needlessly opened the door to still more, seemingly never-ending proceedings. It is time for this litigation to end.
OTHER COURT ACTION
Lawsuit Filed Against Illinois Governor Charging Order Requiring Pharmacists to Dispense Medication that Violates Religious Beliefs is Unenforceable
On April 13, 2005, we filed a lawsuit in state court in Illinois on behalf of two pharmacists challenging Illinois Governor Rod Blagojevichs emergency amendment to the state code requiring pharmacists to dispense medication even if filling the prescriptions violate their conscience and religious beliefs. Our lawsuit charges that the Governors order is unenforceable and urges the court to declare it null and void because it violates state law, including the Illinois Health Care Right of Conscience Act.
This directive is not only legally flawed but it puts pharmacists in the untenable position of having to choose between adhering to their religious beliefs and violating a law that could cost them their jobs. There are protections in place to prevent employees from being punished because of their religious beliefs. The Governors directive is out of step with state law and we are urging the court to issue an injunction that would block the enforcement of this directive and ultimately declare the Governors action null and void.
We filed suit in the Circuit Court of the Seventh Judicial Circuit in Springfield, Illinois, on behalf of Peggy Pace and John Menges, two registered pharmacists who will not dispense the morning-after pill and/or Plan B medication because of their religious, moral, and ethical beliefs. Both Pace and Menges believe the drugs are abortion producing medications. Pace is a staff pharmacist at a retail chain in Glen Carbon and Menges works as a staff pharmacist at a retain chain in Collinsville.
The lawsuit contends that the Governors emergency amendment is unenforceable because it violates the Illinois Health Care Right of Conscience Act which makes it unlawful for any public official to discriminate or punish any person who refuses to participate in any way in any particular form of health care services contrary to his or her conscience.
The suit also charges the emergency amendment violates the Illinois Religious Freedom Restoration Act, the Illinois Human Rights Act, and Title VII of the Civil Rights Act of 1964. The suit requests the court grant an injunction preventing the measure from being enforced and asks the court to declare the directive unenforceable and null and void.
The religious beliefs of those in the health care industry must be protected. The pro-life pharmacist who chooses not to dispense abortion producing drugs should not face punishment and discrimination for abiding by those convictions.
We are defending a national law protecting health care workers from discrimination. The measure, which is being challenged in the federal courts, bars federal funds from going to federal or state programs that discriminate against health care professionals who do not participate in abortion services. We represent members of Congress including Representatives Henry Hyde (R-IL) and Dave Weldon, M.D. (R-FL), the sponsors of the measure.
Lawsuit Filed Against Planned Parenthood and Security Guard in Washington, D.C. for Tackling Pro-Life Counselor
On April 29, 2005, we filed a civil lawsuit in Washington, D.C. against Planned Parenthood and a security guard on behalf of a pro-life college student who said he was tackled and injured when attempting to exercise his free speech rights outside an abortion clinic in 2004.
It is simply unacceptable for citizens of the United States, who are on public property, to be tackled or knocked to the ground by security guards. In this case, a college-aged Catholic sidewalk counselor was attacked from behind and thrown to the ground on a public sidewalk for no other reason than seeking to offer his message of hope and help to women approaching the Planned Parenthood facility.
We filed suit in the Superior Court for the District of Columbia on behalf of Daniel Heenan, a Virginia resident who attends Christendom College in Front Royal, Virginia. The suit contends that Heenan, who participated in Saturday prayer vigils and sidewalk counseling outside the Planned Parenthood clinic on 16th Street N.W. in Washington for three years, was injured by a security guard who tackled Heenan in May 2004, knocking him to the ground.
The incident occurred, according to the suit, after Heenan approached the clinic and crossed a painted black line on a sidewalk outside the clinic a marking that applied only to a group of defendants in a federal lawsuit and not to Heenan.
The suit contends that Heenan was forcefully shoved to the ground and tackled by a security guard after crossing the line. According to the suit, Heenan did nothing to provoke the assault never said or indicated that he was going to enter the clinic and never expressed aggression or intimidation toward the security guard. The suit also contends that the incident was witnessed by several officers of the Metropolitan Police Department who refused Heenans request to press charges against the security guard. No police report was made concerning the incident.
The suit names as defendants Harry James, the security guard, and Planned Parenthood of Metropolitan Washington, Inc. The suit contends that James and his employer, Planned Parenthood, committed battery against Heenan which resulted in both physical and emotional injury to him. The suit asks the court to order the defendants to pay compensatory and punitive damages in the case. The suit also requests that the court protect the constitutional rights of Heenan and grant injunctive relief barring the defendants from having any physical contact with Heenan in the future. The lawsuit requests a trial by jury.
CURRENT ISSUES ON CAPITOL HILL
Senator Frists Proposal to Break Gridlock on Judicial Nominees Reasonable and Constitutionally Sound
On April 28, 2005, we came out in support of the proposal put forth by Senate Majority Leader Bill Frist calling for an up-or-down vote by the Senate on all judicial nominees. The Frist proposal comes as efforts intensify to find a way to bring an end to filibustering judicial nominees.
This represents an imminently reasonable and constitutionally sound approach to break the gridlock over judicial nominees. The use of a filibuster to prevent consideration of judicial nominees is not only wrong but reflects a stridently unfair treatment of nominees. No one wants to eliminate debate concerning nominees but every nominee deserves an up-or-down vote on the Senate floor. Thats exactly what Senator Frist is proposing and we believe this represents a workable resolution to this impasse over judicial nominees.
We have received nearly 35,000 names on a nationwide petition urging the Senate to adopt a rules change putting the filibuster off-limits for judicial nominees. We are using a number of methods to get the word out including direct mail, email, website, our weekly national television program, and our daily radio program, which is heard on nearly 550 radio stations nationwide.
We have also provided legal memoranda to Senate members urging them to eliminate the use of the filibuster for judicial nominees. The legal memos are posted online.