A member of the New York Police Department stands outside a Planned Parenthood clinic in N.Y., November 28, 2015. (Andrew Kelly/Reuters)

Editor’s note: New served as an expert witness for David Daleiden’s legal representation. He wrote a rebuttal report and testified in court as an expert witness in San Francisco.

Last week, pro-lifers were dismayed when a San Francisco jury announced its verdict in Planned Parenthood’s civil lawsuit against David Daleiden. After two days of deliberation, the jury found Daleiden guilt under the federal Racketeering Influenced Corrupt Organizations (RICO) law. They also found Daleiden guilty of fraud, trespassing, and unlawful recording of conversations. The jury ruled that the pro-life activists had to pay Planned Parenthood more than $2.2 million dollars in damages. The exceptionally high damages are shocking and doubtless will have a chilling effect on journalists who seek to engage in undercover investigative reporting.


Even so, pro-lifers should not despair about this ruling. A number of observers have noted several procedural problems with how the trial was conducted. First, the jurors were not allowed to see the videos that Daleiden and his team shot, which exposed misconduct on the part of Planned Parenthood and included footage of Planned Parenthood employees negotiating the price of fetal body parts. In addition, the judge who presided over the trial helped to found a family resource center that includes a Planned Parenthood facility on its property. Daleiden’s legal counsel at the Thomas More Society is currently in the process of appealing the district court’s decision.

Meanwhile, there exist many parallels between Planned Parenthood’s current lawsuit against Daleiden and the lawsuit that the National Organization for Women (NOW) launched against Joe Scheidler of the Pro-Life Action League in the 1980s. In 1986, NOW argued that the activities of Scheidler and other pro-lifers who engaged in street-level activism were causing economic harm to abortion facilities. NOW argued that Scheidler’s pro-life advocacy was a conspiracy to achieve an “unreasonable restraint of trade” and that Scheidler and other pro-lifers had violated anti-trust, RICO, and extortion laws. Scheidler, like Daleiden, was represented by the Thomas More Society during the litigation.


The RICO claim made by NOW was that each pro-life “sit-in” or “rescue” at an abortion clinic constituted extortion, but federal law defines extortion as obtaining someone else’s property through the threat of force. Clearly, pro-lifers involved in abortion-clinic protests and rescues were neither trying to gain financially from their activities nor seeking to obtain anyone else’s property. Furthermore, RICO legislation was signed by President Nixon in 1970 to make it easier to prosecute organized crime. It was never intended to be a legal weapon against pro-lifers or other political activists.


In May 1991, the first trial judge threw out the anti-trust, RICO, and extortion claims against Scheidler as baseless. This dismissal was unanimously upheld by an appeals court and later appealed to the U.S. Supreme Court. The Supreme Court declined to review the anti-trust dismissal but did hear the appeal of the RICO and extortion dismissal. In January 1994, the U.S. Supreme Court unanimously ruled that the federal RICO law could be applied to non-economic protesters — pro-lifers could be exposed to RICO lawsuits.


This ruling gave the NOW another avenue to pursue legal action against Joe Scheidler. Both a district-court judge and an appeals-court judge subsequently ruled against Scheidler. In 2001, the U.S. Supreme Court agreed to hear the appeal, and an ideologically diverse group of political-activist organizations supported Scheidler, including People for the Ethical Treatment of Animals and Martin Luther King Jr.’s Southern Christian Leadership Conference. During the trial, the prosecution admitted that RICO laws could have been used against civil-rights protesters who engaged in sit-ins and other forms of economic protest during the 1960s. The Supreme Court ruled 8-1 in Scheidler’s favor.

This ruling should have concluded the case, but a court of appeals panel argued that the Court had overlooked four findings contained in the jury verdict form used at the trial, and the case returned to the Supreme Court yet again. In 2006, the Court ruled once more in Scheidler’s favor, this time 8-0. A subsequent decision required the plaintiffs to cover Scheidler’s legal costs. After 28 years, the litigation had finally ended, and Scheidler emerged victorious.


While last Friday’s verdict in Planned Parenthood’s lawsuit against Daleiden was disappointing, Scheidler’s experience during the 1980s, 1990s, and 2000s demonstrates that there is hope for the pro-life activists. Although the charges brought against Daleiden are somewhat different from those brought against Scheidler, it is encouraging that ideologically diverse judges eventually ruled in favor of Scheidler’s free-speech rights. What’s more, it’s worth remembering that politically liberal groups supported Scheidler because they saw the value of protecting the free-speech rights even of those with whom they disagreed.