968 F.2d 612 (7th Cir. 1992), 91-2468, National Organization for Women, Inc. v. Scheidler

Docket Nº:91-2468.
Citation:968 F.2d 612
Party Name:RICO Bus.Disp.Guide 8033 NATIONAL ORGANIZATION FOR WOMEN, INC., on behalf of itself and its women members and other women who use or may use the services of women's health centers that provide abortions, Delaware Women's Health Organization, Incorporated and Summit Women's Health Organization, Incorporated, on behalf of themselves and all other sim
Case Date:June 29, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 612

968 F.2d 612 (7th Cir. 1992)

RICO Bus.Disp.Guide 8033


and its women members and other women who use or may use the

services of women's health centers that provide abortions,

Delaware Women's Health Organization, Incorporated and

Summit Women's Health Organization, Incorporated, on behalf

of themselves and all other similarly situated clinics,



Joseph M. SCHEIDLER, John P. Ryan, Randall A. Terry, Andrew

Scholberg, Conrad Wojnar, Timothy Murphy, Monica Migliorino,

Vital-Med Laboratories, Inc., Pro-Life Action League, Inc.,

Pro-Life Direct Action League, Inc., Project Life, and

Operation Rescue, Defendants-Appellees.

No. 91-2468.

United States Court of Appeals, Seventh Circuit

June 29, 1992

Argued Feb. 19, 1992.

Rehearing and Rehearing En Banc Denied Aug. 4, 1992.

Page 613

[Copyrighted Material Omitted]

Page 614

Jack L. Block, Lowell E. Sachnoff, Judi A. Lamble, Sachnoff & Weaver, Chicago, Ill., Robert J. Lerner, Perry, Lerner & Quindel, Milwaukee, Wis., Fay Clayton (argued), Susan Valentine, Robinson, Curley & Clayton, Patricia Ireland, Kim Gandy, National Organization for Women, Inc., Washington, D.C., Sharon Thompson, Durham, N.C., Alan Pollack, Pollack & Greene, New York City, for plaintiffs-appellants.

Edward Grant, Hinshaw & Culbertson, Thomas L. Brejcha, Jr. (argued), Abramson & Fox, Robert S. Harlib, Clarke D. Forsythe, Ann-Louise Lohr, Kevin J. Todd, Americans United for Life Legal Defense Fund, Jerome K. Bowman, Timothy C. Klenk (argued), Pope, Ballard, Shepard & Fowle, Chicago, Ill., Timothy Belz, Belz & Beckemeier, St. Louis, Mo., Vincent P. McCarthy, New Milford, Conn. (argued), Jennifer C. Neubauer, Winnetka, Ill., Philip R. King, Tribler & Orpett, Chicago, Ill., Craig Parshall, Jaeger, Parshall & Umpletz, Menomenee Falls, Wis., Robert M. Chemers, Scott O. Reed, David J. Loughnane, Charles F. Redden, Pretzel & Stouffer, Chicago, Ill., Lawrence Gavin, Bell, Boyd & Lloyd, Chicago, Ill., Thomas P. Monaghan, Monaghan & Sekulow, New Hope, Ky., for defendants-appellees.

Kimball R. Anderson, Winston & Strawn, Roslyn C. Lieb, Cynthia A. Wilson, Chicago Lawyers' Committee, Chicago, Ill., for Chicago Abortion Fund, and Coalition of African-American Women for Choice, amicus curiae.

Stephen F. Ross, University of Illinois, College of Law, Champaign, Ill., for American College of Nurse-Midwives, and American Medical Students Ass'n, amicus curiae.

Thomas W. Strahan, John W. Whitehead, Charlottesville, Va., for Rutherford Institute, amicus curiae.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and VAN SICKLE, Senior District Judge. 1

BAUER, Chief Judge.

The plaintiffs, the National Organization for Women, Inc. ("NOW"), the Delaware Women's Health Organization, Inc. ("DWHO"), and Summit Women's Health Organization, Inc. ("SWHO"), brought this action seeking federal relief from the defendants' nationwide campaign to close medical clinics that provide abortion services. The second amended complaint 2 alleges violations of the Sherman Antitrust Act, 15 U.S.C. § 1, and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(a), (c), and (d) ("RICO"). The complaint also raises several pendent state claims. The district court granted the defendants' motion to dismiss the complaint under F.R.C.P. 12(b)(6). National Organization for Women v. Scheidler, 765 F.Supp. 937, 945 (N.D.Ill.1991).

The plaintiffs appealed. We reluctantly affirm the dismissal of the plaintiffs' claims for two reasons. First, we find that the antitrust laws were not intended to apply to the defendants' activities. Second, we hold that RICO requires either an economically motivated enterprise or economically motivated predicate acts.

Page 615


The plaintiffs (a national non-profit organization aimed at advancing and protecting women's rights, and two women's health centers 3), claim that the defendants, anti-abortion activists, anti-abortion groups, and a medical testing laboratory, engaged in a conspiracy to close all women's health centers providing abortions through a pattern of illegal activity. The complaint alleged that the defendants (other than Vital-Med Laboratories) engaged in the following illegal 4 activities in order to close women's health centers that perform abortions: extortion; physical and verbal intimidation and threats directed at health center personnel and patients; trespass upon and damage to center property; blockades of centers; destruction of center advertising; telephone campaigns designed to tie up center phone lines; false appointments to prevent legitimate patients from making them; and direct interference with centers' business relationships with landlords, patients, personnel, and medical laboratories. 5 Many of these activities were organized by a coalition of anti-abortion groups called the Pro-Life Action Network ("PLAN"). The defendants who have participated in PLAN activities, the "PLAN defendants" are Scheidler, Ryan, Terry, Scholberg, Murphy, Wojnar, Migliorino, Pro-Life Action League ("PLAL"), Pro-Life Direct Action League ("PDAL"), Operation Rescue ("OR"), and Project Life.

More specifically, the complaint alleges that defendant Scheidler distributes Closed: 99 Ways to Stop Abortion, a manual which advocates unlawful methods of interfering with the operations of women's health centers. Employing the methods detailed in the manual, defendants Scheidler, Ryan, Terry, Scholberg, Murphy, and Migliorino have spearheaded actions throughout the country aimed at closing health centers. For example, in March 1986, Scheidler, Ryan, PLAL, and PDAL, led others (alleged to be their co-conspirators) in an invasion of a health center in Florida. Protestors entered the center, and injured the center's administrator and another woman, the medical procedures room was ransacked, and medical supplies were destroyed. The participants who stormed the center were convicted on criminal charges.

Other demonstrations organized by defendants involved hundreds of individuals who blockaded clinics. During these "blitzes," as they are called, defendants' groups, using a method called "lock and block," pour glue into clinic locks, and individual protestors lock themselves to clinic doors. Another tactic involves abrasive confrontations with women seeking abortions, designed, according to a news release prepared by defendants, to take away the centers' business. The complaint details many other invasions of clinics, and in one case, a judge's home, involving injuries, trespass, and vandalism. Often these demonstrations resulted in the arrests of hundreds of demonstrators, including defendants, for state criminal law violations. For example, defendant Ryan has been arrested more than three hundred times; defendant Scheidler has been convicted and fined for criminal trespass and harassment. We note that the complaint does not purport

Page 616

to catalog all of the defendants' arrests and criminal convictions.

The plaintiffs also allege that two of the defendants (Wojnar and Terry) have established competing pregnancy testing and counseling facilities.

Defendant Vital-Med Laboratories, an Illinois corporation, provided pathology testing and safe, sanitary disposal services to DWHO, SWHO, and other affiliated clinics. Plaintiffs allege that Vital-Med participated in a conspiracy to steal fetal remains from Vital-Med's Northbrook, Illinois laboratory. In January 1988, defendant Wojnar was contacted by a Vital-Med employee who detailed a scheme for stealing fetal remains from the laboratory. Over a ten-month period, in conspiracy with one or more Vital-Med employees, defendants Murphy and Migliorino stole approximately 4,000 aborted fetuses from the laboratory. Murphy and Migliorino each entered Vital-Med's Northbrook laboratory, opened sealed storage drums containing a variety of medical waste, and removed fetal specimens. On at least one occasion, an entire storage drum was stolen. Vital-Med employees, who saw Murphy and Migliorino on at least one occasion, did nothing to stop the thefts.

The remains were stored at the homes of Scheidler, Murphy, Migliorino, and Wojnar. Scheidler kept the storage drum in a playhouse in his backyard for several weeks. After the fetal remains were removed, Murphy dumped the drum containing the remaining medical waste in a dumpster in Chicago. Remains were sent to anti-abortion activists in Indiana, North Carolina, North Dakota, Delaware, and Florida. Activists eventually held mass burial services for the fetuses in several states. Scheidler announced to news media that the fetuses had been found at a Chicago laboratory and that they were "individually packaged and labelled ... with the names of the mothers, doctors, dates and places the abortions were performed." Second Amended Complaint, R. 236 at 24. Vital-Med no longer accepts fetal remains for testing.

Finally, defendants contacted businesses that provide goods and services to health centers and threatened to disrupt and harass them if they continued to transact business with the centers. When SWHO arranged a move to new premises, defendant Migliorino threatened SWHO's future landlord and co-tenants. The landlord terminated the lease.

We note here that the complaint does not attempt to bar all anti-abortion activities. Peaceful picketing, debate, meetings, prayers, and a host of other forms of peaceful protest, are protected by the First Amendment. The complaint seeks relief from criminal and tortious activities such as trespass, clinic invasion, vandalism, extortion, and tortious interference with business relationships.

Moreover, the complaint does...

To continue reading