Sidewalk counselors FACE wave of attack

[This article was printed in Lifeline Vol. XXI, No. 1 (Spring 2012) Read in PDF.]


Allison Aranda

The Freedom of Access to Clinic Entrances (FACE) Act, passed by Congress in 1993, was purportedly enacted to protect women seeking abortion and abortion providers against threats of physical violence. The Obama administration, however, is using the FACE Act to intimidate and bully peaceful sidewalk counselors.

What was the impetus for such a law? The pro-abortion lobby pointed to isolated incidents of violence against abortionists and abortion clinics, as well as clinic blockades. The abortion industry professed before Congress that these incidents were increasing in frequency and threatened the safety of abortion providers, and ludicrously, that local law enforcement was unable or unwilling to prosecute those responsible.

Congress compliantly passed FACE, granting special protection to persons “obtaining or providing reproductive health services.” FACE not only imposes heavy criminal penalties for the use of “force, threat of force, or physical obstruction” against abortion patients or providers, but also creates civil causes of action, allowing an “aggrieved” person—or the Department of Justice (DOJ)—to sue for damages for alleged violations.

The legislative history reveals that lawmakers claimed “The Act is carefully drafted so as not to prohibit expressive activities that are constitutionally protected, such as peacefully carrying picket signs, making speeches, handing out literature, or praying in front of a clinic (so long as these activities do not cause a ‘physical obstruction’ making ingress to or egress from the facility impassible or rendering passage to it difficult or hazardous). Moreover, as noted, §2715(d)(5) of the act states expressly that nothing in it shall be construed or interpreted to prohibit expression protected by the First Amendment to the Constitution.”

Ironically, the law that expressly provides protection for pro-life free speech activities is now being wielded as a sword by an extremely hostile President. Why? Because, the real threat to the abortion industry is the life saving message of peaceful sidewalk counselors handing out literature to women before they enter the clinic. For every woman who turns around, the abortion industry loses money. So under the Obama administration, which is committed to protecting Planned Parenthood and the rest of the abortion industry, the target of this legislation includes the middle-aged woman or retired man who faithfully prays in front of the abortion clinic and hands out pro-life literature and directs needy mothers to the local pregnancy resource center. They are neither violent, nor threatening, nor forceful, nor obstructive, and yet, they are now the target of legal persecution.

The U.S. Department of Justice (DOJ) led by Eric Holder is committed to removing peaceful pro-life advocates outside of clinics.

In June 2009, shortly after President Obama took office, his administration convened a meeting of the National Task Force on Violence Against Reproductive Health Care Providers. As a result, the DOJ began conducting nationwide FACE Act trainings in collaboration with its regional offices, local law enforcement agencies, Planned Parenthood, and other abortion rights groups. Immediately following the Task Force announcement and trainings, several peaceful pro-life sidewalk counselors came under investigation. And, in less than three years since the task force declared war against the prolife movement, the Department of Justice has filed nine civil lawsuits under the Freedom of Access to Clinic Entrances Act, a statistic its representatives touted before the Senate Judiciary Committee last year.

At the start of 2012, there were six active cases that the DOJ was still pursuing against pro-life advocates. In all of the cases, the government’s primary goal is seeking a permanent restraining order against the peaceful sidewalk counselors to keep them away from the abortion clinics, thus effectively silencing their message of help to women in need. What the DOJ did not anticipate is the efforts of pro-life attorneys to come to the defense of the life champions on the front lines. The legal battle lines have been drawn, and we are fighting for truth, freedom, and life.

For example, in June 2011, the government filed suit against Ken Scott (U.S. v. Scott, 1:11-cv-01430-PAB), claiming among other things that in August 2009, he approached vehicles in an effort to speak with drivers as they entered the parking lot of an abortion clinic. Scott’s attorneys maintain that in some instances the vehicles stopped voluntarily and in other circumstances they were able to easily pass after Mr. Scott walked past the driveway. The DOJ sought a preliminary injunction against Scott to preclude him from continuing these constitutionally protected free speech activities pending the outcome of the case. After a lengthy hearing in which witnesses from both sides testified, a federal judge denied the government’s request, concluding that the DOJ was not reasonably likely to prove the allegations at trial.

In the cases of Holder v. Hamilton (3:10-cv-00759-JBC) and U.S. v. Parente (2:11-cv-01420-DSC), the DOJ claims that Mr. Hamilton and Ms. Parente physically struck individuals who were purportedly escorting women into abortion clinics. Interestingly, in neither case has the government offered any proof that the “escorts” were in any way involved in providing reproductive healthcare services, as is required under the statute.

Both Ms. Parente and Mr. Hamilton adamantly deny the allegations and will fight to protect their right to peacefully hand out literature on the public sidewalk in front of abortion clinics.

The government isn’t backing down yet. In addition to seeking a permanent restraining order against the prolife advocates, the DOJ is asking for stiff penalties, for these purported FACE Act violations, in the form of outrageous fines and statutory “damages” in excess of tens of thousands of dollars. But, the pro-life defendants have learned, these fines are negotiable in exchange for a promise to stay away from the abortion clinic. Yes, that’s right: the government is willing to forego the financial penalty if the prolife advocate is willing to give up his or her constitutional right to free speech. The message the Justice Department is sending by demanding these exorbitant fines from peaceful sidewalk counselors is clear: this is government sanctioned extortion.

Quite possibly the most egregious mischaracterization of facts and abuse of power is the case against 79-year-old Richard Retta. Mr. Retta has been a prayerful presence outside the Planned Parenthood in Washington D.C. for over ten years. Clinic escorts abhor the work of Mr. Retta and frequently obstruct him and prevent him from handing out literature to or speaking with mothers entering the clinic.

On one occasion, a young girl left the clinic and approached Retta for help. The escorts were so outraged that they grabbed her arm and attempted to drag her back inside the clinic so that she would not be influenced by Retta. Retta quickly intervened and pled with the girl to not let the escorts force her to have an abortion. No good deed goes unpunished. For this act of courage and attempt to save a woman from what appeared like a forced abortion, Retta is now being persecuted by the DOJ.

But just as the Bible states, their evil intentions will be exposed when light is shined upon them. The same is true of the Justice Department’s overzealous and meritless prosecution of prolifers under the FACE Act. In January, a federal judge dismissed the FACE suit against Mary Susan Pine of Florida. Stunning the DOJ, the judge in the Pine case declared, “The Court is at a loss as to why the Government chose to prosecute this particular case in the first place.” “The Court can only wonder whether this action was the product of a concerted effort between the Government and the PWC [Presidential Women’s Center], 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,” Judge Ryskamp remarked. Remarkably, in the face of this rebuke, the DOJ is appealing the dismissal.

One has to wonder what the motivation is behind the FACE prosecutions referenced above. The DOJ is currently keeping a tight lip about its contacts with local law enforcement officials and its communication with abortion providers in connection with the active FACE cases. What do they have to hide? Is the truth really as Judge Ryskamp observed, that the DOJ is in bed with the abortion industry and its intent is to suppress the prolife message? The truth is being revealed.

The recent surge in FACE prosecutions is not about physical safety or access to clinics. As Troy Newman, Director of Operation Rescue, recently commented on the threat to sidewalk counselors, “It’s really a political tool to shut them up, shut them down, and make them go away.” But the DOJ has underestimated the commitment of these pro-life champions, and LLDF is proud to stand with them as they face down the DOJ and continue to advocate for the life of the unborn.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.