The FACE Act is Being Used by the DOJ & FBI to Persecute Pro-Lifers: it is Unconstitutional and Must be Repealed

The FACE Act was introduced in 1993 by two East-Coast pro-abortion congressmen, then NY representative (now Senator) Chuck Schumer, and the late Senator Ted Kennedy.

From the beginning, the proponents of the FACE Act were aware that the measure could be used by federal authorities to take away the right to peacefully protest.

Watch Chuck Schumer assure the American people at a Judiciary Committee hearing that the FACE Act would never be used to suppress the right to peacefully protest.

Although the proponents of the FACE Act denied that it was their intent, the last thirty years, and especially the last weeks have proven the concerns of pro-lifers at the time to be well-founded.

FACE Act Is Textbook Viewpoint Discrimination

According to the First Amendment Encyclopedia, unconstitutional viewpoint discrimination is “a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.”

In recent years America has witnessed radical activists of all stripes mount massively disruptive and often violent protests which have not resulted in long prison sentences for any of the protesters or their leaders. Because many of those protesters’ political views have aligned with the government they have more often than not been let off with a slap on the wrist and with bright media and corporate futures.

But not all activists get off easy. Thanks to the FACE Act and its corrupt enforcement by the DOJ and FBI, the peaceful pro-life activist could go to prison for 11 years while the violent pro-abortion activist is never investigated or much less prosecuted.

At the original House Judiciary Committee hearing in which Representative Church Schumer assured America that the FACE Act would not result in stifling the right to peacefully protest, Operation Rescue founder Randall Terry presciently warned Americans that that is exactly what would happen.

As predicted by Randall Terry, “oppressive, crushing retaliation from the government” is exactly what has happened to peaceful pro-life protesters like Mark Houck and Paul Vaughn.

Since the early 90’s the go-to tool for the government to carry out their politically weaponized crusades against pro-lifers has been the FACE Act.

In order to ensure the constitutionality of the FACE Act, the lawmakers who wrote the bill inserted a clause that required the FACE Act to be applied equally to the blockading of abortion clinics and to places of worship. The message sent by legislators was that the FACE Act protected freedom to access the place where the most sacrosanct constitutional right of people of opposing views was practiced. On the one hand the FACE Act would protect pro-lifer’s places of worship, while it would also protect pro-abortion people’s abortion clinics.

(a)Prohibited Activities.—Whoever—
(1)by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;
(2)by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or
(3)intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship,
shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c), except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor.
https://www.law.cornell.edu/uscode/text/18/248

But the FACE Act has never been applied evenly and fairly to people of all viewpoints, it has only been used as a weapon against peaceful pro-lifers.

Now, the reality is that abortion is no longer a federal constitutional right, while religious freedom is and will always be at the core of American constitutional freedoms. To send a political message, the Biden administration is using the FACE Act to crack down on pro-lifers harder and more publicly than ever.

I haven’t yet to find a single FACE Act prosecution by the DOJ & FBI to protect pro-life pregnancy centers or places of worship. In fact, on the Justice Department’s own website the agency neglects to even mention that the FACE Act applies to protect churches at all!

The statute creates federal jurisdiction and penalties for a person who:

By force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;
Intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services.
https://www.justice.gov/crt/protecting-patients-and-health-care-providers

At a time when it appears to be open season on pro-life organizations, churches, and activists – dozens of pregnancy resource centers and pro-life organizations have been firebombed, vandalized, and threatened, and over two hundred Catholic churches have been attacked – not a single prosecution has been initiated by the DOJ & the FBI. Clearly, the government only intends to use the FACE Act against pro-lifers. Clearly, the FACE Act, as applied, is discriminatory and unconstitutional, it is also unnecessary.

Most often, FACE Act prosecutions are undertaken against peaceful pro-life protesters who are either never charged under state law, or who face very minor penalties similar to what other civil rights protesters face. If a pro-lifer ever committed a violent act they would already be liable under state laws against violence and destruction of property.

The fact of the matter is that the FACE Act was passed with the precise unconstitutional purpose of crushing a civil rights protest movement. This, by definition, is viewpoint discrimination, and the many years of successive Democrat weaponization of the statute against its political enemies bears ample evidence to this fact.

Prosecutions under the FACE Act fluctuate wildly depending on the administration that is in power, making the enforcement of this law not only discriminatory based on the protester’s pro-life viewpoint but also arbitrary based on which party is in power in Washington D.C.

The Washington Independent reported that “according to statistics provided by the Department of Justice, the Bush administration brought only about two criminal prosecutions per year in the entire country under the FACE Act, and never more than four in any single year. The Clinton administration, in contrast, had prosecuted 17 defendants for violations of the FACE Act in 1997 alone, and an average of about 10 per year since the law was enacted in 1994.”

After the lull in prosecutions under the Bush administration, the first Obama/Biden administration ramped up prosecutions of the FACE Act to an unprecedented level, bringing numerous frivolous lawsuits meant to intimidate and financially ruin peaceful pro-life protesters.

Their abuse of the law was so severe that it led to Senators Ted Cruz and Mike Lee writing to then Attorney General Loretta Lynch demanding an explanation as to why the FACE Act was being weaponized to be enforced in a “warped and biased” manner.

In their excellent letter to Obama’s Attorney General, Senators Cruz and Lee point out that one of the cases listed by the Obama Justice Department on their press release, Holder v. Pine, is actually highly critical of the government enforcement of the FACE Act. The Judge in Holder v. Pine wrote:

“The Court can only wonder whether this action was the product of a concerted effort between the Government and the [clinic], which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.”

“The Government’s failure to take the necessary steps to prevent the destruction of potentially critical evidence was indeed negligent, and perhaps even grossly negligent.”

“FACE as applied would violate [Defendant] Pine’s First Amendment rights."

“The Court is at a loss as to why the Government chose to prosecute this particular case in the first place.”
Sen. Ted Cruz and Sen. Lee letter to Loretta Lynch, Obama's Attorney General

Leftwing Disruption is Tolerated, Pro-Life Protesting is Not

In the last ten to fifteen years, the following Democrat-favored protests have been allowed to spread throughout the United States. These protests were always disruptive, often violent, and never resulted in long prison sentences for the organizers. Quite the contrary, most of the organizers benefitted politically, financially and professionally

1. During the anti Iraq War protests during the Bush Administration by Code Pink and others, leaders like Cindy Sheehan were arrested for blockading the White House, harassing the President at his private residence in Texas, and for numerous other acts on other occasions. Her arrests never resulted in significant jail time or fines but instead launched her as a celebrity with a promising political career and a lucrative book contract.

2. During the Occupy Wall Street protestes, the United States’ financial headquarters in Wall Street, New York and financial districts throughout the country were blocked by anti-capitalist protesters. In New York they even blocked the entire Brooklyn bridge. The protesters were allowed to shut down entire city centers for months, yet, in the end, the protesters were evicted and went home. Almost no one was prosecuted.

BLM Escalation

During the BLM protests, cheered on by the left’s political class, violent protesters lay siege to the White House, intimidated politicians as they ate at restaurants with their families, illegally protested US Supreme Court judges at their homes, burned down federal court houses police precincts. In fact, protesters burned down entire neighborhoods filled with the people they pretended to represent. None of these protesters were targeted by special federal enforcement taskforces or subject to tailor made federal laws. To the contrary, America was made to kneel and corporate America sent the organizers of these riots tens of millions of dollars.

It is high time that the Republican Party stand up for its pro-life base and repeal the FACE Act.

After all, if abortion is not a federal constitutional right, why give the DOJ and the FBI, which we know have been corrupted almost irretrievably, a tool to persecute peaceful pro-lifers specifically because of their political views?

If violent acts are committed related to any protests, the state’s police powers and criminal codes should be more than sufficient to prosecute those responsible for such acts.

There is no reason to treat pro-lifers differently from any other group of Americans who choose to exercise their right to peacefully protest.

The FACE Act must be repealed.