Judge Frank Easterbrook penned a sharply written, seven page opinion in which he seemed almost to scoff at the objections raised by the abortion lawyers’ quibbles over the pro-lifers’ claims, which he deemed “modest for a suit that entailed discovery, a long trial, many motions in the district court, and appellate proceedings that span a generation.” In fact, he dismissed the abortion lawyers’ arguments as “preposterous” and quipped that, “The costs amount to less than $2,300 per year of litigation.” Judge Easterbrook closed his opinion in a pair of terse sentences that resonate deeply and dramatically with those who fought this often-agonizing litigation over many years, going back to June, 1986: “This litigation has lasted far too long. At last it is over.”
NOW v. Scheidler brought about the birth of the Thomas More Society in March, 1997 – some sixteen years ago – just a few months after Tom Brejcha, partner in a Chicago law firm, was told by his managing partner at a firm meeting that he would either have to “quit the case or quit the firm.” Tom Brejcha quit the firm to carry on in defense of the case that will go down as a landmark in the annals of American law.
NOW v. Scheidler went before the U.S. Supreme Court for full dress briefing, hearing, and disposition on three separate occasions — which may well have been unprecedented, as no legal historian has yet to find another case so well-traveled up and down all three tiers of the federal judicial system!
The first appeal was brought by the abortion plaintiffs after Brejcha’s motion to dismiss all charges (under the federal antitrust, racketeering (RICO) and extortion laws) was granted by Judge Holderman in 1991. That dismissal was then affirmed on appeal by the 7th Circuit without a dissenting vote, but the Supreme Court agreed to review the RICO dismissal and reversed by a 9-0 count, in January, 1994, holding that RICO applied to non-profit enterprises equally as to for-profit activities.
The case was then remanded and reassigned to newly appointed Judge Coar, who presided over a lengthy RICO jury trial in March-April and June-July, 1998, after which Judge Coar entered judgment on a verdict for plaintiffs in July, 1999, awarding treble damages against defendants for over $257,000, with attorney’s fees yet to be added onto that sum. Joe and Ann Scheidler then mortgaged their home to post security to an appeal, but the 7th Circuit affirmed the judgment in 2001.
The following April, 2002, the U.S. Supreme Court again agreed to review the case and reversed the judgment in early 2003, by a decisive 8-1 margin. On remand, however, the 7th Circuit panel whose earlier affirmance of the RICO judgment had been reversed by the Supreme Court, ruled rather surprisingly that the Supreme Court had overlooked part of the RICO verdict and that, therefore, the lawsuit should be reexamined by Judge Coar to determine if the overlooked portions of the verdict alone would support relief for the abortion plaintiffs.
Defendants then promptly sought a third hearing before the Supreme Court, and the Justices voted to hear the case a third time. This time they reversed the 7th Circuit a third time, in Spring, 2006, by unanimous count, 8-0 (Justice O’Connor having resigned after oral argument but before the decision was issued), and this time they specifically directed that the case be dismissed on its merits.
Thereafter, the pro-life defendants filed to recover some $70,000 in costs — all that they could back up with invoices and receipts after so many years of litigation. Judge Coar, while allowing what he deemed a late filing, did not act on the costs petition for several years before retiring from the bench. Finally, the case was transferred to Judge Norgle, who awarded defendants most of the costs they sought. But the abortion plaintiffs refused to pay and instead took another appeal. That appeal was briefed, argued just over a week ago on Good Friday, and decided April 29, 2014 in defendants’ favor.
“Today we celebrate a long-awaited, hopefully final victory for millions of pro-lifers here and around the country,” said Tom Brejcha, president and chief counsel of the Thomas More Society. “The abortion plaintiffs had been claiming that the heroic leaders whom we defended were leaders of a vast nationwide conspiracy comprising as many as a million members, thereby putting a black cloud over pro-life efforts to advocate against abortion as if these efforts to save human lives were some horrific enterprise bent on ‘extortion’ and ‘racketeering.’ After nearly 28 years of litigating and three trips to the U.S. Supreme Court, we are proud to declare that pro-lifers’ First Amendment rights to free speech and association are once again secure and protected by law. Banding together with fellow citizens to advocate for the sanctity of each and every human life — born and unborn, wanted or allegedly ‘unwanted’ — are precious rights of all American citizens.”