Formed in 1987, this organization has been a vocal one, representing the most recent type of pro-life (or anti-abortion) organizing since the 1980s. The ‘‘first wave,’’ active before the Supreme Court’s 1973 Roe v. Wade decision, consisted largely of individuals either affiliated with the Catholic Church or in the medical professions, some of whom later founded or joined national organizations. Some examples include Father Paul Marx (active since the 1950s, ultimately founding Human Life International in 1981), Jack Willke, M.D. (ultimately the organizer of the National Right to Life Committee in 1973), and Mildred Jefferson, M.D., of Boston. Early victories for the second wave were found in the Jackson and Hyde Amendments prohibiting public funds for abortion. Key groups in this wave included Human Life International and the National Right to Life Committee (joined by smaller, womenheaded groups such as the Eagle Forum, founded in Illinois in 1972, and Concerned Women for America, founded in San Diego in 1979).
The third wave of organizing in this stream began in the mid-1980s. It stemmed from impatience with mainstream legislative and court actions and veered into the realm of directly confrontational tactics. The forerunner in this sector was Joseph Scheidler of Illinois, who pioneered direct-action techniques, including clinic blockades and ‘‘sidewalk counseling’’ through his group, the Pro-Life Action League. Operation Rescue was founded at a conference of the Pro-Life Action Network in 1987 by Scheidler and Randall Terry of Project Life, in Binghamton, New York. Operation Rescue was closely modeled on the ethos and strategies of the Pro-Life Action League. Operation Rescue has been described as a militant alternative to the National Right to Life Committee, which did not support its type of confrontational tactics. For Operation Rescue, the bodies of antiabortion protesters were used as the barrier to clinics and their operations. Terry often described his organization as participating in a civil rights struggle for the unborn and in precipitating a civil war over the abortion question in the United States.
While Operation Rescue disavows the use of guns and bombs at abortion clinics, it has used many types of mechanisms to disrupt clinic practices. This organization can be viewed as an extremely provocative group among third-wave organizations, willing to push the legal envelope as to the amount of permitted interaction between clients and protesters. The group has been active at local, national, and international levels. For example, in 1990, statistics were given that Operation Rescue had participated in clinic actions in 173 cities in forty-four states and the District of Columbia, and in two Canadian provinces. Its actions have included ‘‘the use of truth teams,’’ whereby group members have made appointments at clinics and once inside, worked to ‘‘dissuade clients from having abortions’’; and activities at the Democratic National Conventions, including clinic blockades in Atlanta and the delivery of a fetus to presidential nominee Bill Clinton at the New York Convention in 1992. In Canada, Operation Rescue first participated in a blockade against the clinic operated by Dr. Henry Morgentaler in Toronto in October 1988 and participated in such blockades throughout the 1980s and 1990s. One such example was in 1997 when Operation Rescue participated in clinic blockades at the Elizabeth Bagshaw center in Vancouver, British Columbia, bolting clinic doors shut with kryptonite, with protesters chaining themselves to a cement block outside the door and chaining themselves together with kryptonite. The idea of civil disobedience by protesters to both protest the practice of abortion and attempt to call public attention to their views resulted in numerous arrests over time. It was shown that there were many repeat players in the blockades, such that one group which was keeping arrest statistics noted that ‘‘of 32,000 arrests in 1988–89, about twelve thousand people were arrested only once while 5,750 people accounted for the remaining 20,000 arrests.’’
Operation Rescue’s willingness to use many quasilegal tactics in its civil disobedience strategy made it a key actor in the evolution of constitutional doctrine in two specific ways. The first line of cases had to do with the claims of Operation Rescue (and other similar organizations in this stream) that its First Amendment rights of free speech were being curtailed by buffer zones outside clinics. In the first such case, Bray v. Alexandria Women’s Health Clinic (1993), clinic operators had tried to enjoin Operation Rescue from blockading the clinics and harassing clients. They used the vehicle of the 1871 Civil Rights Act, originally passed to ensure the civil rights of freed slaves and tried to analogize between those originally covered by the legislation and women seeking to access their constitutional rights to abortion. The Supreme Court disagreed, noting that women were not among the original class to be protected under the 1871 law, and stopped federal judges from using the act to enjoin anti abortion protests. However, one year later in the Madsen v. Women’s Health Center (1994), the Supreme Court upheld the suit brought by the Aware Women’s Health Center for Choice in Melbourne, Florida whereby a state court judge had enjoined the protesters (including Operation Rescue) from appearing within a thirty-six-foot buffer zone. The Supreme Court upheld most of this injunction, except that which forbade access to private property surrounding the clinic.
The second area of court cases concerning Terry of Operation Rescue and Scheidler of the Pro-Life Action League has been that based on a new use of the powerful federal Racketeer Influenced and Corrupt Organizations (RICO) statute of 1970 by the National Organization of Women (NOW) to try to assess damages against these men, and has included probably the longest-running court case in the abortion rights area, from 1986 until the time of this writing (2005). NOW first brought suit against Joseph Scheidler of the Pro-Life Action League and Randall Terry of Operation Rescue in 1986 under RICO, a powerful federal statute aimed at thwarting economic conspiracies (such as by the Mafia). In taking action against Scheidler and Terry, NOW argued that the RICO statute applied because the two men were in an ideological conspiracy to shut down certain businesses, that is, abortion clinics. RICO allows plaintiffs to seek criminal charges and if successful, receive triple damages. The first suit went through the Seventh District Court (having been initially dismissed for lack of an economic motive, appealed by NOW) to the Supreme Court, where in 1994 the Supreme Court unanimously ruled that plaintiffs did not need to prove an economic motive to successfully bring suit under the RICO statute.
This decision also allowed the trial of Scheidler and Terry to begin in the federal District Court of Illinois, where it had originally been filed in 1986. In 1994, NOW filed briefs to expand the claim to link the defendants to shootings and arson. In 1997, NOW successfully argued to the District Court that N.O.W. v. Scheidler should be given the status of a class-action lawsuit. In this instance, the judge certified NOW as the class representative of both NOW members but also of all women ‘‘whose rights to the services of women’s health centers in the United States at which abortions are performed have been or will be interfered with by defendants’ unlawful activities.’’ Within Operation Rescue, internal discord brought about the end to Terry’s leadership, with Flip Benham assuming control of the organization in 1994 (and renaming it Operation Save America).
Randall Terry filed for bankruptcy in 1998 to avoid paying any judgments that might be levied against him. He was also subject to a permanent injunction against his activities by the district court, the violation of which would lead to future fines.
In 1998, the federal District Court of Illinois upheld NOW’s RICO arguments against Terry and Scheidler, finding that ‘‘the defendants engaged in a nationwide conspiracy to deny women access to medical facilities.’’ The jury found that Operation Rescue and the Pro-Life Action League should be held liable for the triple damages allowed under the statute, and the following year the district court judge issued the first nationwide injunction against these groups, preventing them from committing more violence.
Since that time, while Operation Rescue has gone bankrupt, the issues of whether future violence may be prevented by injunctions and RICO can be used to punish noneconomic crimes are yet to be settled. The same case has gone to appeal to the Supreme Court in 2002, back through the Seventh Circuit Court of Appeals and down to the District Court of Illinois. As of this writing, it rests with the U.S. Supreme Court, which agreed to hear Scheidler’s appeals beginning November 30, 2005.
References and Further Reading
Cases and Statutes Cited
See also Abortion; National Organization for Women (NOW); Roe v. Wade, 410 U.S. 113 (1973)