Amicus Curiae Brief — National Organization for Women, Inc. v. Scheidler

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No. 92-780 AUG 13 1593

| AARNE RNR HE CLERK

IN THE eaten

Supreme Court of the United States

OCTOBER TERM, 1993

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

ORGANIZATIONS, INC.; and SUMMIT WOMEN’S HEALTH

ORGANIZATION, INC., on behalf of themselves and all

other similarly situated clinics,

‘a Petitioners,

JOSEPH SCHEIDLER, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE NATIONAL ABORTION FEDERATION

AND PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC. AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

ELAINE METLIN

Counsel of Record

NANCIE A. THOMAS

2101 L Street, N.W.

Washington, D.C. 20037

(202) 828-2263

CELESTE LACY DAVIS

EVE W. PAUL

ROGER K. EVANS

LEGAL ACTION FOR

REPRODUCTIVE RIGHTS

Planned Parenthood Federation

of America, Inc.

810 Seventh Avenue

New York, New York 10019

Attorneys fox Amici Curiae

Sam ences

WiLeon « Eras PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

BE: GRAAL AS WR RaD sek Ee On EIS oer a ee

II.

RICO IS A BROAD REMEDY THAT CAN

AND SHOULD BE AVAILABLE TO COM-

BAT THE VIOLENT AND INTIMIDATING

TACTICS OF MILITANT ANTIABORTION

poe yy sy gt! 6 hs cee nc eeR

ABORTION PROVIDERS HAVE SUFFERED

VAST INJURY TO THEIR BUSINESS AND

PROPERTY DUE TO RESPONDENTS’ AC-

A ei caleocesnencinn os <iainanintidettesanpisvictiesiinait

PS MERRIER ATE Lar ke RN

1. Dr. Susan Wicklund—Fargo, North

Dakota; Bozeman, Montana .......................

2. Dr. Abraham Anderson—Norfolk, Vir-

a. Blue Mountain Clinic—Missoula,

I ai i

b. Women’s Health Care—Boise, Idaho..

c. Bours Health Center—Forest Grove,

2. Reproductive Services/Adoption Affili-

ates—Corpus Christi, Texas

TABLE OF CONTENTS—Continued

Page

C. Other Vandalism, Property Damage And

Economic Injury ..........-- 19

1. Planned Parenthood of San Diego and

Riverside Counties—California -............... 19

2. The Women’s Pavilion—South Bend,

Indiana ...... 20

3. Reproductive Services/Adoption Affili-

ates—San Antonio, Texas 22

4. Florida Women’s Medical Clinic—Oak-

land Park, Florida .... 23

5. Clinic “X” 24

CONCLUSION ..............---- 24

iii

TABLE OF AUTHORITIES

CASES: Page

Fargo Women’s Health Organization, Inc. v.

Lambs of Christ, 488 N.W.2d 401 (N.D. 1992). 9

H.J. Inc. v. Northwestern Bell Telephone Co., 492

ER CIES SE Mi wn re te 4

New York State NOW v. Terry, 886 F.2d 1839 (2d

Cir. 1989), cert. denied, 495 U.S. 947 (1990)... 25

NOW v. Operation Rescue, 747 F. Supp. 772

gE a ae 25

Northeast Women’s Center, Inc. v. McMonagle,

868 F.2d 1342 (3d Cir.), cert. denied, 493 U.S.

gE NSERC ES cee ase 8

Northeast Women’s Center, Inc. v. McMonagle,

745 F. Supp. 1082 (E.D. Pa.), modified, 749

ER ) ee 25

Roe v. Operation Rescue, 919 F.2d 857 (8d Cir.

Sas A ea FS RRS ot DTS PCY Se oe 25

Russello v. United States, 464 U.S. 16 (1983)....... 5

Sedima, S.P.R.L. v. Imrex Co., 4738 U.S. 4792

Cee seal ded cies 4

United States v. Lewis, 797 F.2d 358 (7th Cir.

1986), cert. denied, 479 U.S. 1093 (1987) -......... 8

United States v. Turkette, 452 U.S. 576 (1981)... 5

STATUTES:

iE ke | | en 8

Pub. L. No. 91-452, § 904(a), 84 Stat. 947 ithe

note following 18 U.S.C. § 1961 .......00.. 4

I eerenmnmcnmrounee 8

a eeesiicminansin icanones 5

EE Re 5

ea accion Sil 5

a cacitaemtacumanocionnns 3,5

FEDERAL RULES OF CIVIL PROCEDURE:

Rule 12 (b) (6) Te eS et OO ae . 4

MISCELLANEOUS:

Abortion Clinic Seeks Federal Investigation Fol-

lowing Acid Attack, UPI, May 10, 1993, avail-

able in LEXIS, Nexis Library, Wires File ~......... 21

TABLE OF AUTHORITIES—Continued

Steve Blow, Abortion Foes Moving Down List of

Doctors, Dallas Morning News, Oct. 9, 1992, at

81A ; rs

Sandra G. Boodman, Abortion Foes Strike At

Doctors’ Home Lives; Illegal Intimidation or

Protected Protest?, Wash. Post, Apr. 8, 1993, at

National Abortion Federation, Summary Of Ex-

treme Violence Against Abortion Providers As

OP BE 6, FINO sitet

Lisa Richwine, Women’s Group Offers $20,000

Reward for Bombing of Texas Clinic, States

News Service, Mar. 5, 1998 .....................------2--<----

Joseph Scheidler, Closed: 99 Ways to Stop Abor-

tion (1985)

Page

12, 13

18, 23

In THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 92-780

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 WOoMEN’s HEALTH

ORGANIZATIONS, INC.; and SUMMIT WOMEN’s HEALTH

ORGANIZATION, INC., on behalf of themselves and all

other similarly situated clinics,

= Petitioners,

JOSEPH SCHEIDLER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR THE NATIONAL ABORTION FEDERATION

AND PLANNED PARENTHOOD FEDERATION

OF AMERICA, INC. AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

The National Abortion Federation (“NAF”) and

Planned Parenthood Federation of America, Inc.

(“PPFA”) submit this brief in support of petitioners.’

NAF, a_ not-for-profit professional association, was

1The parties have consented to the filing of this brief. Their

letters of consent are being filed with the Clerk of the Court.

founded in 1977 and is composed primarily of clinics and

physicians’ offices providing reproductive health services,

including abortion. Currently, NAF members include

more than 300 abortion providers * operating in 46 states,

the District of Columbia, Puerto Rico and Canada.

NAF’s primary objective is to unite providers of abortion

services into a professional community dedicated to qual-

ity care. NAF provides professional standards, guide-

lines, training and education to its members and serves as

a clearinghouse for information and advice to abortion

service professionals and the general public.

PPFA, a not-for-profit corporation organized in 1922,

is the leading national voluntary health organization in

the field of family planning. Currently, PPFA has 165

affiliates in 49 states operating approximately 920 family-

planning clinics. Forty-seven PPFA affiliates are also

members of NAF. PPFA affiliates offer a wide range of

services relating to reproductive health, including abor-

tion. Sixty-three PPFA affiliates, operating 102 clinics,

offer abortion services as part of their program.’ All

PPFA affiliates that do not provide abortion services

themselves offer counseling and referral for such services.

NAF members and PPFA affiliates are the targets of

the nationwide conspiracy of antiabortion violence and

intimidation described in this case, and have suffered

millions of dollars in damage to their business and prop-

erty resulting from the activities of respondents. In addi-

tion, NAF’s headquarters in Washington, D.C. were fire-

bombed by self-professed antiabortion activists on July 4,

1984. Thus, amici have a special concern that the Court

be fully informed about the harmful economic effects of

respondents’ unlawful activities, as this conduct more than

2 Fifteen applications for membership in NAF are currently

pending.

8 An additional 18 PPFA affiliates expect to offer abortion services

by the end of 1993.

fulfills the requirement of injury to business or property

as set forth in 18 U.S.C. § 1964(c).

STATEMENT OF FACTS

Amici curiae refer to the Statement of Facts set forth

in the Brief for Petitioners filed with this Court.

SUMMARY OF ARGUMENT

The sole economic requirement of the civil RICO stat-

ute requires plaintiffs to allege injury to business or prop-

erty. There is no dispute that petitioners have satisfied

this requirement. Petitioners have alleged that respond-

ents’ pattern of extortionate activity has inflicted enor-

mous damage on the business and property of abortion

providers throughout the nation.

Over the past decade, respondents have engaged in

a campaign of terror with the self-proclaimed purpose

of shutting down clinics and physicians’ offices that pro-

vide abortion services. A factual overview of this cam-

paign shows a nationwide pattern of vandalism, harass-

ment, violence and intimidation that has caused physi-

cians to cease performing abortions and has wreaked

millions of dollars in damage. This brief illustrates the

shocking and unlawful behavior of the militant anti-

abortion wing in 13 case studies of abortion providers

who have suffered enormously at the hands of anti-

abortion extremists.

ARGUMENT

I. RICO IS A BROAD REMEDY THAT CAN AND

SHOULD BE AVAILABLE TO COMBAT THE VIO-

LENT AND INTIMIDATING TACTICS OF MILI-

TANT ANTIABORTION EXTREMIST GROUPS

Nearly seven years ago, petitioners filed suit to com-

bat the campaign of violence, destruction and intimida-

tion that militant antiabortion groups have inflicted on

abortion providers, their staff and their families. Not-

withstanding its finding that respondents engaged in

“reprehensible” activities, the United States Court of

Appeals for the Seventh Circuit held that the case must

be dismissed under Fed. R. Civ. P. 12(b)(6) in part be-

cause petitioners did not allege that the RICO conspiracy

was economically motivated.

In engrafting the pleading requirement of economic mo-

tive onto RICO, the Seventh Circuit failed to follow both

the explicit direction of Congress and the teachings of

this Court regarding the breadth and scope of RICO.

When it enacted RICO, Congress stated that it should be

“liberally construed to effectuate its remedial purposes.”

Pub. L. No. 91-452, § 904(a), 84 Stat. 947 (1970),

note following 18 U.S.C. § 1961. Time and time again,

this Court has followed this directive and has consistently

refused invitations to narrow RICO’s scope. For ex-

ample. in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479

(1985), the Second Circuit imposed two additional re-

quirements on civil RICO plaintiffs in response to a per-

ceived misuse of the statute: showing of a prior criminal

conviction and a racketeering injury. /d. at 481. This

Court reversed, explaining that “RICO is to be read

broadly. This is the lesson not only of Congress’ self-

consciously expansive language and overall approach, but

also of its express admonition that RICO is to ‘be liber-

ally construed to effectuate its remedial purposes.’” /d.

at 497-98 (citations omitted). See also H.J. Inc. vy.

* 968 F.2d at 621, 630.

Northwestern Bell Telephone Co., 492 U.S. 229, 235

(1989) (rejecting interpretation of “pattern of racketeer-

ing activity” as requiring proof of multiple schemes);

Russello v. United States, 464 U.S. 16, 22 (1983) (re-

jecting argument that RICO forfeiture provision was lim-

ited to interests in an enterprise); United States v. Tur-

kette, 452 U.S. 576, 587 (1981) (rejecting argument

that RICO enterprise requirement be limited to legitimate

enterprises only).

Nothing in the text of 18 U.S.C. § 1962(c) supports

the pleading requirement added by the Seventh Circuit.’

Instead, in pleading a violation of criminal RICO, the

statute requires only that a RICO enterprise be engaged

in or that its activities affect interstate or foreign com-

merce. See 18 U.S.C. § 1962(a), (b), (c). Under civil

RICO, 18 U.S.C. § 1964(c), the plaintiff must also plead

and prove that defendants’ unlawful conduct injured her

business or property. Petitioners have undisputedly satis-

fied these requirements.

II. ABORTION PROVIDERS HAVE SUFFERED VAST

INJURY TO THEIR BUSINESS AND PROPERTY

DUE TO RESPONDENTS’ ACTIVITIES

Both NAF and PPFA include large numbers of pro-

viders throughout the nation who have been subject to

the same sort of attacks, and indeed, in many cases, the

very attacks, described in petitioners’ Second Amended

Complaint and RICO case statement.* Both organizations

5 Section 1962(c) provides:

It shall be unlawful for any person employed by or associated

with any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct or partici-

pate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity or collection

of unlawful debt.

® Although the District Court refused to certify the proposed

class, the class in this case would properly include petitioner clinics

and “all other similarly situated clinics performing abortions that

collect information from their members. NAF publishes

its data in Incidents Of Violence & Disruption Against

Abortion Providers and Summary Of Extreme Violence

Against Abortion Providers.’ The factual overview and

individual case studies that follow more than justify the

application of RICO to the extreme elements of the anti-

abortion movement.

NAF received reports of 1,380 acts of violence against

abortion providers,” 287 bomb threats and 581 clinic

blockades between 1977 and July 21, 1993. Since the

1980’s, these activities have intensified in severity and fre-

quency. The 1990’s have seen a dramatic increase in

violence and terrorism. During the period from 1991 to

mid-1993, 31 clinics providing abortion services were the

targets of arson and 220 such clinics were vandalized.

In 1993, antiabortion extremists have relentlessly

heightened the levels of violence and the accompanying

damage, including threatening, stalking and even murder-

ing *° abortion providers in their campaign to coerce abor-

tion providers to stop providing abortion services. In the

first seven months of 1993 alone, antiabortion proponents

made death threats to 56 abortion providers and stalked

another 119. Some physicians have ceased to perform

abortions and some clinic staff members have quit their

[respondents] seek to drive out of business through a pattern of

concerted unlawful activity.” Thus, this class would include many

members of NAF and PPFA.

7 Copies of the current versions of these publications are being

lodged with the Clerk of the Court.

8 Acts of violence include murder, bombing, arson, attempted

bombing and arson, invasion, vandalism, assault and battery, death

threats, kidnapping, burglary and stalking. (Stalking is defined as

the persistent following, threatening and harassing of an abortion

provider, staff member or patient away from the clinic. NAF began

tabulating stalking incidents in 1993.)

®In March 1993, Dr. David Gunn, a doctor at Pensacola. Medical

Services in Pensacola, Florida, died after an antiabortion extremist

shot him three times in the back.

jobs out of fear for their safety and the safety of their

homes and families due to the heightened violence.

Between January 1 and May 31, 1993, arson and

vandalism caused an estimated $2,058,553 worth of prop-

erty damage alone.”” This figure does not include business

revenue lost by clinics forced to suspend operations to

repair damage, replace medical equipment or locate and

move to replacement space, nor does it include the in-

creased insurance costs suffered by these clinics” (and,

in some instances, the clinics’ landlords), the loss of in-

come to clinic employees who have lost their jobs, legal

fees and increased security costs to protect clinics from

damage and their staff from intimidation.

These activities have had a profound impact on the

livelihoods of abortion providers, their staff and their

families. Amici have gathered a representative sampling

of these episodes to demonstrate the far-reaching eco-

nomic effects of respondents’ violent and disruptive

conduct.

A. Physicians

The following section describes four physicians who are

victims of extortionate behavior typical of the pattern of

racketeering activity alleged by petitioners. These case

studies show that militant groups have driven oer attempted

to drive physicians out of business with the classic tech-

niques of extortion: force, threats of force, fear and

violence, Based on these tactics, which have been em-

ployed against physicians and members of their families,

abortion providers have been deprived of “the right to

make [their] business decisions free of threats and coer-

10 Between February and May 1998, antiabortion extremists

burned five clinics and vandalized at least twelve with butyric acid.

11 Due to the ongoing, publicized terrorist tactics of the anti-

abortion forces, many insurance companies consider clinics to be

bad risks and therefore regularly refuse to insure them for the

full value of their property and business,

cion.” United States v. Lewis, 797 F.2d 358, 364 (7th

Cir. 1986), cert. denied, 479 U.S. 1093 (1987); see

Northeast Women’s Center, Inc. v. McMonagle, 868 F.2d

1342, 1350 (3d Cir.) (abortion clinic’s intangible right

to continue to operate its business sufficient to satisfy

property right element of Hobbs Act, 18 U.S.C. § 1951,

and RICO, 18 U.S.C. § 1961(1)(B)), cert. denied, 493

U.S. 901 (1989). As these case studies show, some

physicians have succumbed to the pressure and have

ceased to perform abortions.

1. Dr. Susan Wicklund—Fargo, North Dakota;

Bozeman, Montana

Dr. Susan Wicklund, who began performing abortions

in 1988, traverses the upper northern regions of this

country in order to provide abortion services to her

patients. In 1989, she began practicing at the Fargo

Women’s Health Organization (the “Fargo Clinic” )—the

only clinic in all of North Dakota that includes first tri-

mester abortions among the wide range of reproductive

health care services it offers. Dr. Wicklund alternates

with another physician weekly in performing abortions

on the two days that the clinic sets aside for the proce-

dures. On other days, she provides gynecological services,

including abortions, to clients of the Mountain Country

Women’s Clinic in Bozeman, Montana.

The price of continuing such a practice, in the face of

an ever-increasing shortage of physicians willing to pro-

vide abortion services, is high. The tactics of the anti-

abortion terrorists have forced Dr. Wicklund to purchase

a .38 caliber revolver and a bullet-proof vest. She is

escorted in and out of clinics by a personal security

guard. She is the frequent target of death threats and

stalking.

Moreover, in the summer of 1992, when Dr. Wicklund

was performing abortions at the Summit Women’s Health

Organization in Milwaukee, Wisconsin, she was violently

attacked, As members of the antiabortion organization

Missionaries to the Preborn demonstrated outside the

clinic, Dr. Wicklund attempted to enter through the back

door. She was grabbed by a protester, thrown against 2

van and told, “we’re going to stop you—no matter what.”

Despite her struggle, Dr. Wicklund was unable to escape

from her captor and clinic personnel rushed to her aid.

Before they could gain her release, however, a virtual tug

of war ensued between the protesters and the staff, with

Dr. Wicklund as the pivot point. Dr. Wicklund worked

that day and those immediately following with multiple

bruises.

In Fargo, members of the Lambs of Christ have so

heightened the level of intimidation and harassment

against Dr. Wickluad as to warrant an injunction against

their alleged criminal and tortious acts. Fargo Women’s

Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d

401 (N.D. 1992). Even though the injunction requires

the protesters to remain at least 100 feet from the clinic,

Dr. Wicklund never feels safe in Fargo and she never

Stays overnight. For a three-month period, she received

phone calls and letters daily advising her of her imminent

death. Dr. Wicklund has no doubt that certain members

of the antiabortion movement are conspiring to stalk and

frighten her: for the duration of a year, a group of ex-

tremists would harass her when she boarded a plane to

travel to Fargo, or elsewhere. When her plane would

land in another state, 250 miles away, a different group

of screaming protesters would greet her at the gate. These

activities occurred even if she took odd flights in order

to confuse her pursuers. Currently, she is trailed in her

car by persons who communicate by walkie-talkies. Al-

though one antiabortion activist has been charged and

convicted for stalking her in Fargo, that case is on appeal

and Dr. Wicklund still worries for her life.

In January 1993, Dr. Wicklund bought the gynecologi-

cal practice of Dr. Francis Balice in Bozeman, Montana.

He, too, had been threatened frequently by antiabortion

zealots who claimed they would kill him and put him out

of business. However, Dr. Balice, who was nearing re-

tirement, was determined to continue his practice for at

least another three years rather than cave in to the harass-

ment and intimidation tactics of the militants. When Dr.

Wicklund offered to buy the clinic, Dr. Balice was pleased

to turn over his business to her. Nevertheless, the threats

against the clinic did not stop with the arrival of a new

physician.

Dr. Wicklund receives letters daily, sometimes twice a

day, at the Mountain Country Women’s Clinic threatening

either to burn down the clinic or to take her life. In her

second week of operation, she received a ietter from a

Missouri antiabortion activist who wrote “my mission is

to shut you down and to make sure you will never do

abortions.” After the murder of Dr. Gunn in Pensacola,

Florida, the tone of the letters became even more graphic

and threatening. At least one letter, dated March 11,

1993, threatened to tear her limb from limb just like

the “babies” she was “murdering”: “How would you

like to have your legs ripped off one by one? How about

your arms, one by one? How would you like to have your

skull crushed? It should happen to you.”

Dr. Wicklund’s home has been burglarized twice since

she began the Bozeman practice. The perpetrators did

not take anything either time and Dr. Wicklund believes

they intended to highlight her vulnerability, even in her

residence. While she lives with the constant fear that her

life will be taken or her family harmed, Dr. Wicklund

vows to continue providing safe and legal abortions to

women who seek them.

2. Dr. Abraham Anderson—Norfolk, Virginia

Dr. Abraham Anderson is an OB/GYN who has prac-

ticed in Norfolk, Virginia since 1971. He practices out

of three offices, one in Norfolk and two in Chesapeake.

Abortions comprised less than two percent (2%) of Dr.

Anderson’s practice. Dr. Anderson was the only physician

in the Norfolk area who performed abortions for Medicaid

patients at a reduced fee, or for no fee whatsoever.

After frequent episodes of residential picketing, Dr.

Anderson began to receive letters threatening to post

“Wanted” posters bearing his picture around his neigh-

borhood and near his office unless he signed an agreement

that he would no longer perform abortions. One such let-

ter threatened to “make it impossible for [him] to

practice.”

Following months of harassment, Dr. Anderson sued

Donald Spitz and the local Operation Rescue organiza-

tion. Approximately two weeks after obtaining a re-

straining order, Dr. Anderson began to receive threatening

cards and letters from other states, including Texas, and

from countries in Europe, many of which contained simi-

lar or identical handwriting, indicating that the same per-

son or persons were writing the cards and letters, and

either mailing the letters themselves or recruiting other

people to mail them from other locations. Additionally,

local antiavortion forces began to place “Wanted” posters

on telephone poles on the street leading to Dr. Anderson’s

office. The propaganda posted and issued by the anti-

abortion forces misrepresented Dr. Anderson as only per-

forming abortions, when in reality abortions comprised a

very small part of his practice.

The harassment of Dr. Anderson increased dramatically

in the past year. On three occasions, at two-week in-

tervals, antiabortion activists littered his driveway with

nails at night. On another occasion, they broke down a

side gate leading to his yard and pushed in the storm

windows at the back of his house. Additionally, another

militant and an accomplice began to stalk Dr. Anderson.

In response to these events, local police forces increased

surveillance around Dr. Anderson’s house. This increased

surveillance failed, however, to deter Dr. Anderson’s

harassers.

Dr. Anderson is the father of a fourteen-year-old

daughter who, due to his work schedule, is often home

alone at night. Dr. Anderson became increasingly fright-

ened by the harassment and intimidation, especially be-

cause he felt that the local Operation Rescue organization

was actively recruiting unstable people who might go so

far as to kill him. Fearing for his own safety and that of

his daughter, Dr. Anderson decided to cease performing

abortions.

3. Dr. Clay Alexander—Dallas, Texas

Dr. Clay Alexander began performing abortions as part

of his private gynecological practice in Dallas, Texas in

1987. Beginning in June 1992, members of the Dallas

Pro-Life Action Network (‘‘Dallas PLAN”) targeted Dr.

Alexander for a harassment campaign. After seven weeks

of concentrated harassment and intimidation, Dr. Alex-

ander considered the toll taken on his wife and children

and reluctantly signed a “‘no-abortions”’ pledge.

In order to obtain Dr. Alexander’s surrender, Dallas

PLAN established daily pickets outside his office, the hos-

pital with which he is affiliated and his home,” and

began telephoning him at all hours of the day and night,

demanding that he stop performing abortions. Letters

and postcards angrily calling for his retirement from

abortion practice filled his mailbox each day. Dallas

PLAN members would pepper his residential block with

pamphlets depicting mutilated third trimester fetuses. On

one occasion, the extremists littered his lawn with white

crosses to simulate a cemetery. Dallas PLAN members

also stalked Dr.. Alexander’s wife on her daily errands,

following her into each business, from the dry cleaner

to the video store, and demanding of the proprietor,

“don’t serve the wite of a baby killer!”

12 See Steve Blow, Abortion Foes Moving Down List of Doctors,

Dallas Morning News, Oct. 9, 1992, at 31A.

In the middle of July 1992, Dr. Alexander phoned Tom

Cyr, the director of Dallas PLAN, and asked what he

must do to make the harassment stop. Cyr- informed

him that his life would return to normal if he signed a

pledge promising never again to perform abortions. In

addition, Cyr instructed Dr. Alexander to turn over a

passport-quality photo of himself which could be dissem-

inated to Dallas PLAN members. In this way, explained

Cyr, the group could be certain of Dr. Alexander’s iden-

tity and “if we ever see you anywhere near an abortion

clinic, we'll start up all over again. We'll hound you to

the ends of the earth and make your life a living hell.”

Since Dr. Alexander signed the pledge, Dallas PLAN

has publicized his case and has targeted other doctors in

the area, with some success."* Dr. Alexander is distressed

when he informs a woman that although an abortion is a

medical necessity, he is constrained from performing the

procedure. He states that he would never have signed the

pledge if he were a single man; however, as a husband

and father of one- and three-year-old children, Dr. Alex- .

ander is afraid of exposing his family to increasingly

violent harassment.

4. Dr. Smith 4

Dr. Smith has been an OB/GYN in California for 22

years. He is a solo practitioner who, from 1979 to 1992,

performed abortions as part of his OB/GYN practice.

The provision of abortion services constituted only one

to five percent (1-5%) of Dr. Smith’s practice. In 1992,

however, in order to save his family from further harass-

ment by antiabortion forces, Dr. Smith reluctantly signed

a pledge that “[he] will not perform abortions anymore.”

18 See id.

14 At the request of the physician, his name has been changed to

protect him from retaliation from antiabortion groups.

The events leading up to Dr. Smith’s signing of the

pledge included an invasion of his office by more than

100 demonstrators who vowed to destroy him. Anti-

abortion extremists also harassed his family and threat-

ened to deliver pamphlets labeling him a “baby killer”

to the elementary school attended by his eight-year-old

son. When Dr. Smith’s wife could no longer tolerate the

strain and pressure of this harassment, she threatened

to leave him if he did not accede to the harassers’

demands.

Dr. Smith sought help from the local sheriff, who

invited Dr. Smith to bring his complaint to the sheriff's

office. When Dr. Smith arrived, however, he found one

of his harassers in the sheriff’s office. The sheriff proposed

to “mediate” the conflict between Dr. Smith and the anti-

abortion forces. Under pressure, Dr. Smith, realizing

that he would receive no assistance from the local law

enforcement, reluctantly signed the pledge and delivered

it to the harasser in the sheriff’s office. Although anti-

abortion demonstrators no longer threaten Dr. Smith,

they monitor his office to check whether he is keeping

his pledge.

B. Arson

1. The Pacific Northwest

Between February and May i993, antiabortion zealots

burned three clinics located in the northwest United

States. Each of these arsons followed a similar pattern:

late at night, typically between 2:00 and 4:00 a.m., the

arsonists sprayed the clinic with gasoline (or a similar

flammable substance) and set fire to the building. Due

to different structural characteristics of the buildings

which housed these clinics, however, they did not suffer

equivalent amounts of damage.

a. Blue Mountain Clinic—Missoula, Montana

The Blue Mountain Clinic (“Blue Mountain”), which

opened in Missoula, Montana in 1977, was the first clinic

in Montana to perform abortions. Abortion services,

however, comprised less than twenty percent (20%) of

its business. The majority of Blue Mountain’s business

derived from other health care services, including pre-

natal and pediatric care. Blue Mountain was one of

only three facilities in the region to provide prenatal care

to Medicaid patients. Additionally, Blue Mountain had

an exclusive Department of Health contract to perform

childhood immunizations. Blue Mountain’s clientele came

from a 300-mile radius which encompassed western Mon-

tana, northern Idaho, eastern Washington and parts of

western Canada. Blue Mountain’s regular clients (i.e.,

patients seen on a regular basis for health care other than

abortion services) numbered more than 5,000 in 1992.

Blue Mountain had been subjected to ongoing harass-

ment by antiabortion activists over a period of several

years, including two “rescues” by Operation Rescue in

the past three years and death threats made to Blue

Mountain’s former director.” On March 29, 1993, anti-

abortion arsonists saturated the roof and eaves of Blue

Mountain with a flammable accelerant and threw an in-

cendiary device inside the building. The fire alarm went

off at approximately 3:56 a.m. Although firefighters and

police arrived on the scene within three minutes, Blue

Mountain was completely destroyed. The police have

not apprehended the arsonists and do not even have a

suspect.

The arson of Blue Mountain caused at least $250,000

in property damage alone, not including the cost of the

building which Blue Mountain leased from the owner

of the complex." Blue Mountain has also lost approxi-

15 A previous director of Blue Mountain and an OB/GYN in

Bozeman, Montana both received death threats from the same iden-

tified antiabortion zealot.

16 Another building in the complex suffered extensive smoke dam-

age that forced the tenant to move. Thus, the arson of Blue Moun-

mately $50,000 per month in revenue since the arson.

Blue Mountain’s insurance covered only a portion of

these losses—its business loss insurance covered only the

first two months following the arson, and its property

insurance covered less than half of the property loss.

The economic effects of the destruction of Blue Moun-

tain reach beyond property and revenue loss. Montana

is a rural area hard hit by the recession. Blue Mountain

formerly employed 38 people, but since the arson it main-

tains a skeletal staff of eight. If Blue Mountain cannot

raise the money to rebuild, these eight people will also

lose their jobs.

Blue Mountain has not performed an abortion since

the arson and, other than quietly leasing a small amount

of space from a local physician to provide some health

care services for less than half of its regular patients, has

been unable to reopen.

b. Women’s Health Care—Boise, Idaho

Women’s Health Care (“Health Care”), which opened

in Boise, Idaho in 1981, was primarily established to

allow nurse practitioners to provide contraceptive and gen-

eral gynecological care. Health Care initially did not

perform abortions, but added the service in late 1981-

early 1982 due to patient demand. Health Care’s pa-

tients are mostly women, but it also provides general

health care to some men and children. Health Care

serves approximately 500 patients per month, 30-35 of

whom seek abortion services.

On May 28, 1993, at approximately 3:00 a.m., un-

identified antiabortion activists broke a window in Health

tain inflicted business and property damage not only on the clinic,

but also on the owner of the business complex, who suffered the

loss of two tenants, one destroyed building and one damaged build-

ing, and another tenant who incurred property damage and moving

costs.

Care, doused the waiting room, ramp and roof with

gasoline and set the building on fire. Health Care’s

waiting room, as well as most of its records, were de-

stroyed in the fire. The failure of Health Care’s stucco

roof to ignite, however, saved the building from total

destruction. Health Care estimates the damage at more

than $100,000. The police found a gasoline can at the

scene, but otherwise have no evidence and no leads.

Approximately one week later, Health Care located

a smaller, temporary space, but the lease for this space

expires at the end of August 1993 and renewal is un-

certain. Health Care has suffered a forty percent (40% )

drop in its business since the arson, in large part because

it does not have the facilities to serve more patients, and

currently provides health care services only to those who

require immediate care. Given the increased visibility of

its current space, Health Care fears that greater numbers

of protesters and intensified harassment will frighten other

patients away.

c. Bours Health Center—Forest Grove, Oregon

Dr. Peter Bours began his family practice in 1975. In

1979, he constructed the building which houses the Bours

Health Center in Forest Grove, Oregon (the “Center”).

In recent years, Dr. Bours has begun concentrating pri-

marily on family planning. He provides abortion services

for approximately 200 patients per year.

At 2:15 a.m.-on May 13, 1993, the fire alarm at the

Center sounded. Much like the arsons at Blue Mountain

and Health Care, arsonists sprayed the roof and eaves

of the Center with gasoline and ignited the building. The

Center suffered approximately $5,000 in property dam-

age. Were it noi for the prompt response of the fire de-

partment and certain structural characteristics of the

building, including a lack of attic space between the roof

and the ceiling, the Center would have suffered much

greater damage. The police have no suspects.

2. Reproductive Services/Adoption Affiliates—

Corpus Christi, Texas

Reproductive Services/Adoption Affiliates (“Services/

Affiliates”) are affiliated not-for-profit organizations. Serv-

ices Owns and operates several non-profit family-planning

clinics in the southwest United States that provide edu-

cational programs to schools and community groups on

birth control and other sexuality issues, and also pro-

vide a range of family-planning and gynecological serv-

ices, including abortion. Affiliates is an associate organi-

zation that provides adoption services to women, includ-

ing medical treatment and both pre- and post-adoption

counseling. In each of their clinics, Services/Affiliates

share office space and personnel.

The Services/Affiliates clinic in Corpus Christi, Texas

(the “Corpus Clinic”) opened in 1978. The former build-

ing of the Corpus Clinic housed both a medical, family-

planning clinic and an adoption services center. The

sign on the building carried the names of both organiza-

tions. The Corpus Clinic serves approximately 35-40

patients a week, approximately 20-25 of whom seek

abortion services or information on abortion services. It

also provides medical treatment and counseling to many

birth mothers. The Corpus Clinic’s clients range widely

in age and come from a broad base of circumstances.

Until February 1993, the Corpus Clinic was housed in

a freestanding building located in a multi-business com-

plex. In the early morning of February 15, 1993, arson-

ists axed or kicked in the front door of the Corpus Clinic

and threw an incendiary device into the building, which

set the Corpus Clinic on fire. The building was completely

destroyed at a loss of more than $1,000,000." The Corpus

Christi police never apprehended the arsonists. The

17 See Lisa Richwine, Women’s Group Offers $20,000 Reward for

Bombing of Texas Clinic, States News Service, Mar. 5, 1993

(“States News”).

Corpus Clinic was closed for over two months, but re-

opened in late spring at another location.

C. Other Vandalism, Property Damage And Economic

Injury

1. Planned Parenthood of San Diego and Riverside

Counties—California **

On March 9 and in the early morning hours of March

10, 1993, antiabortion vandals sprayed six abortion clinics

in San Diego and Riverside Counties with butyric acid.’

The most extensive damage by far occurred at the Planned

Parenthood Clinic in Riverside (the “Riverside Center”).

The Riverside Center, which had been the subject of an

arson attack in 1988, had just been renovated when the

acid vandals hit. They apparently drilled a %” hole,

about the size of a straw, in a window sash and pumped

the acid in with a syringe.

A cleaning woman at the clinic discovered the damage

first. When she entered the building, a noxious odor that

smelled like a combination of manure and vomit over-

whelmed her. Her skin felt hot, as if it were burning, and

she could not breathe easily. Nauseated and unable to

remain in the building, the employee sought treatment at

an urgent care clinic. Her face and eyes burned for a

long time afterward as if she had been badly sunburned.”

18 Planned Parenthood of San Diego and Riverside Counties

(“Planned Parenthood of San Diego’) operates twelve clinics,

eleven of which are family-planning clinics and one of which pro-

vides prenatal services.

19 All of these attacks closely preceded Dr. Gunn’s murder in

Pensacola, Florida on March 10, 1993.

2 This was not the only medical consequence of the acid attack.

One staffer who had been nursing her baby and had planned to

continue for another six months was forced to stop after being

exposed to the fumes. The local poison control center could not

advise her as to the safety of her breast milk and her infant vomited

after each nursing. Other staffers state that they reeked with

When the rest of the staff arrived within the hour, the

noxious odor forced them to cover their mouths and close

their eyes while they opened all the windows and doors.

The smell did not dissipate with the influx of fresh air

and, indeed, could be detected within a three-block radius

of the Riverside Center. Recognizing that they could not

deliver health care services in such an environment, the

staff brought the telephones out through the windows,

grabbed charts from files and rescheduled the day’s ap-

pointments. For the walk-in clients who could not be

forewarned, the staff dispensed birth control supplies and

provided the most basic of services from the patio.

For the next two days, several contractors tried without

success to rid the building of the odor. By March 12,

two days after the attack, the staff concluded that their

workplace was uninhabitable and decided to relocate. The

relocation lasted five weeks, until an effective neutralizer

could be found. Even then, the Riverside Center could

not salvage the furniture.

The Riverside Center is once again in full operation.

However, the cost of recovery has exceeded $90,000. The

Riverside Center spent $35,000 in cleaning, replacing the

carpet, hiring a security guard and relocating. It also lost

$30,500 in income, invested $12,500 in a newly-installed

perimeter security system, allotted $8,000 for security at

Planned Parenthood of San Diego’s administration build-

ing and two other clinics and has committed an additional

$6,000 toward apprehending the vandals.

2. The Women’s Pavilion—South Bend, Indiana

The Women’s Pavilion (the “Pavilion”), a family-plan-

ning clinic located in South Bend, Indiana that provides

a broad spectrum of OB/GYN services including abortion,

opened in 1978. The Pavilion provides abortion services

the odor of butyric acid when they returned home from the clinic.

They found it necessary to discard their .'othes in garages and

patios before entering their homes and immediately to shower and

wash their hair.

to approximately 20-30 patients per week. Due to its

location in an area with three colleges, the Pavilion sees

predominantly college-age, middle-class women, but draws

patients from all walks of life.

In early May 1993, Peter Heers from Collegians Acti-

vated to Liberate Life (“CALL”) contacted a local radio

station, WVPE, to announce that CALL would be out-

side the Pavilion on the Friday before Mother’s Day ™

distributing white carnations to “mothers” who had aborted

their pregnancies. On May 7, 1993, approximately 25-30

protesters from CALL, primarily men, gathered in the

parking lot of the Pavilion, harassed patients and staff

and handed white carnations to patients entering and

leaving the Pavilion.

Sometime on the night of Saturday, May 8, 1993, or

early morning of Sunday, May 9, 1993 (Mother’s Day),

antiabortion vandals axed through a boarded-up mail slot

on the front door of the Pavilion and air-compressed a

powder form of butyric acid or a substantially similar

substance * into the Pavilion. The vandals ran a hose

from a spigot on the front of the Pavilion through the

hole in the door and flooded the Pavilion.** Additionally,

they drilled a hole in the back door and forced more

butyric acid into the back rooms of the Pavilion, most

likely by using syringes. There is no spigot at the back

of the Pavilion and, therefore, they were unable to flood

the Pavilion through the back door as well. Although the

perpetrators have yet to be identified, they left a partially-

full butyric acid bottle and several white carnations on

the front steps of the Pavilion.

21 The Pavilion is not open on Saturdays.

22 The Pavilion has yet to receive official confirmation that the

substance used was butyric acid.

23 See Abortion Clinic Seeks Federal Investigation Following

Acid Attack, UPI, May 10, 1998, available in LEXIS, Nexis Library,

Wires File.

An escort from the National Organization for Women

who was patrolling the area around the Pavilion noticed

the hose running in the front door on Sunday, May 9,

and called the police. Because neither the police nor the

fire department in South Bend possesses the technology to

identify the exact chemicals used to vandalize the Pavilion,

they sent the bottle left on the front steps and other

samples to the FBI Crime Lab. :

The Pavilion was closed for approximately six weeks to

repair the damage and to air out the rooms, at a loss of

approximately $45,000-60,000 in revenue. The damage

has run into hundreds of thousands of dollars. The ad-

ministrators were forced to replace the carpets, baseboards

and internal doors, as well as most of the wallpaper. They

also replaced the front and back doors, which the vandals

damaged in the break-in, and repainted the ceilings. The

Pavilion’s insurance company has reimbursed the Pavilion

for some of the damage, but recently has balked at pay-

ing further, questioning whether the Pavilion is a “legiti-

mate business” and using other delay tactics.

3. Reproductive Services/Adoption Affiliates—San

Antonio, Texas

The Services/Affiliates clinic in San Antonio, Texas

(the “San Antonio Clinic”), a non-profit medical, family-

planning and counseling clinic, opened on March 6, 1973.

It was the first non-profit clinic to provide abortion serv-

ices in the southwest United States (which has made it a

particular target of the antiabortion forces in that region).

Slightly larger than the Corpus Clinic, the San Antonio

Clinic serves approximately 45 patients per week, approxi-

mately 25-29 of whom seek abortion services.

Late on the night of January 24, 1993, two days after

President Clinton signed and issued the “Memorandum on

Fetal Tissue Transplantation Research” and the “Memo-

randum on the Title X ‘Gag Rule,” unidentified anti-

abortion vandals drilled 27 holes in the roof and poured

butyric acid into the San Antonio Clinic. The butyric

> alll

acid rendered the San Antonio Clinic uninhabitable for

at least four days, made many employees ill ** and caused

thousands of dollars worth of damage. In addition to

damaging the interior of the San Antonio Clinic, butyric

acid also seeped into the insulation of the building, which

had to be torn out and replaced. The police have not

caught the vandals.

4. Florida Women’s Medical Clinic—Oakland Park,

Florida

The Florida Women’s Medical Clinic in Oakland Park,

Florida (the “Florida Clinic”) has been housed in a

multi-tenant office building since 1976. The Florida Clinic

serves a range of patients, from middle-income women to

Haitian and other refugees. It also provides prenatal and

other services for the Department of Health. The Florida

Clinic has tried to set its fees as low as possible because

it is the only option for many lower-income women.

Over the past four years, beginning in 1989, anti-

abortion activists shot out five plate-glass windows at the

Florida Clinic, dumped motor oil on the front doors,

strewed nails in the parking lot and super-glued the locks,

causing an estimated $7,000 worth of property damage.

Two physicians quit working at the Florida Clinic due to

the harassment.”

The Florida Clinic’s lease expires at the end of August

1993. The landlord has decided not to renew the lease

because, due to the harassment and damage, he cannot

attract other tenants to the building and is losing money.

The clinic’s move to its new site will cost $26,000.

24 See States News, sup a note 17.

25One physician ceased performing abortions altogether; the

other is now working at a clinic which has not been harassed.

5. Clinic “X” 26

Clinic X, which provides OB/GYN services, including

abortion services, to a primarily inner-city, indigent cli-

entele that comes from a_ several-hundred-mile radius,

opened in 1983. Approximately fifty to sixty percent

(50-60% ) of Clinic X’s patients are Medicaid patients.

Clinic X is located in a region with the highest rate of

teenage pregnancy in the state.

During a two-week period in 1992, Operation Rescue

targeted Clinic X and the other clinics in the city with

massive blockades, invasions and increased harassment of

staff and patients. Although Clinic X regularly sees ap-

proximately 100 patients per week, during this period

Clinic X saw only 19 patients the first week and 35 pa-

tients the second week. Many patients who canceled or

rescheduled appointments explaified that they were afraid

of the blockaders. This drop of sixty-five to eighty per-

cent (65-80% ) cost Clinic X more than $38,000 in lost

revenues.”

One staff member of Clinic X quit just prior to the

commencement of the two-week period because she feared

harassment. Two other staff members did not come to

work during those two weeks, citing fear for their per-

sonal safety if they attempted to enter the clinic.

CONCLUSION

The foregoing case studies, while not an exhaustive

review, illustrate the illegal activities of a radical fringe

of the antiabortion movement. This fringe is, in fact, a

well-funded enterprise that is national in scope. The

enterprise is both violent and intimidating; it regularly

conspires to engage in acts of extortion, arson, vandalism °

26 The name and location of Clinic X have been kept confidential

at the request of the clinic administrator.

27 This figure does not include legal fees.

and assault and it regularly succeeds in its aims. There

is no question that the enterprise seeks to harm, and does

harm, abortion providers in their business and property.

Indeed, it has defined and declared its intent to “inter-

fere with and even stop the business of abortion.” Joseph

Scheidler, Closed: 99 Ways to Stop Abortion 18 (1985).

Having established a systematic method of attacking abor-

tion clinics, the enterprise is now also targeting the abor-

tion-providing physician or, in the words of Operation

Rescue’s Randall Terry: “the weak link.” See Sandra G.

Boodman, Abortion Foes Strike At Doctors’ Home Lives;

Illegal Intimidation or Protected Protest?, Wash. Post,

Apr. 8, 1993, at Al.

The enterprise has no respect for the law. See, e.g.,

Northeast Women’s Center, Inc. v. McMonagle, 745 F.

Supp. 1082, 1094 (E.D. Pa.), modified, 749 F. Supp.

695 (E.D. Pa. 1990). Its flagrant disregard of court

orders has resulted in numerous findings of contempt for

Operation Rescue participants. See, e.g., Roe v. Opera-

tion Rescue, 919 F.2d 857 (3d Cir. 1990); New York

State NOW y. Terry, 886 F.2d 1339 (2d Cir. 1989),

cert. denied, 495 U.S. 947 (1990); NOW v. Operation

Rescue, 747 F. Supp. 772 (D.D.C. 1990). It threatens

to spin completely out of control if tighter reins are not

applied. Accordingly, amici urge this Court to find that

the “reprehensible activities” of the enterprise are com-

pletely within the ambit of civil RICO and that economic

motive has no place in the proper statutory construction

of RICO.

For the foregoing reasons, this Court should reverse the

decision below of the United States Court of Appeals for

the Seventh Circuit,

Respectfully submitted,