A Challenge to Face: Jane Roe II v. Aware Women Health Center

MELBOURNE, FLA.—The federal law that governs entrance to abortion clinics in the United States can also be used to assure exit from those same clinics, according to an attorney whose client was forced to continue an abortion against her will.

The Freedom of Access to Clinic Entrances (FACE) Act forbids blocking customers from clinic entrances. Passed by Congress and signed into law by former President Bill Clinton in 1994, it was promoted as a defense against violence outside clinics, but it had the intended effect of chilling peaceful free speech demonstrations that can reduce clinic business.

The law is the “darling of the pro-abort crowd,” said Michael Hirsh, Esq. Hirsh is the lead attorney in the case of a Florida woman who was physically pinned down after she changed her mind about choosing a surgical abortion. In a legal twist not anticipated by those who pushed the law, FACE is now being used to defend against violence inside abortion clinics. According to a news release from the pro-life Population Research Institute (PRI) in Virginia, on March 29, 1997, a young, pregnant woman—known only as Jane Roe II—entered the Aware Woman Center for Choice in Florida for an abortion. Soon after the procedure began, she felt a piercing pain.

Racked by “extreme, excessive pain in her abdomen,” she begged the abortionist to stop. “Call an ambulance!” she cried, trying to get up. The abortionist, a Dr. William P. Egherman, allegedly refused and ordered his assistants to hold her down. PRI reported that four pairs of hands gripped her arms and legs, rendering her immobile, and the abortion continued. The patient was eventually taken by ambulance to an emergency room where it was discovered that she had a perforated uterus and lacerated colon. Further surgery was required to remove her now-dead baby and repair her internal organs.

Hirsh made it clear that the case involved force, not mere coercion.“Coercion is someone saying, ‘Have an abortion or I’m going to leave you.’ Force or the threat of force is,‘Have an abortion or I’m going to kill you.’ A woman who is in a clinic screaming to be let up and you have four people holding her down—that’s force.” He has no liking for FACE, yet he said the law has its uses. “I hate it,” he said. “I think it is horrible, unconstitutional and ought to be struck down totally. That withstanding . . . since it is part of the system now, it opens up an entire vista of legal remedies. The punitive provisions of the law provide some opportunities for those who win a case, and the criminal component of the law provides for punishment ranging up to life in prison for those who violate the law.”

A key victory within the larger Florida case was securing court protection of Jane Roe II’s anonymity. Lawyers for the clinic wanted to identify the woman in public. It was ironic, said Hirsh, that abortion supporters, who base “their entire existence” on the right to privacy, wanted to expose the woman’s name. “The first time the shoe is on the other foot, they can’t scream loud enough against privacy,” he said. In the broader case, which was upheld by a three-judge panel of the Eleventh Circuit Court of Appeals in June, the abortion side argued unsuccessfully that the woman was restrained for her own safety. The case is now scheduled for appeal to the full bench, and there is a pending motion on attorney’s fees, which can be awarded under FACE.

Most Americans have heard of forced abortion in places such as China, where the government’s one-child policy has led to documented abuses, but the United States also has a problem, Hirsh said. The Florida case received little media attention, yet “since winning, I have had calls from all over the country from women and their friends. I have heard from Maryland, Pennsylvania, Arizona, California, Kansas, Florida. This is a national problem.”

Hirsh said the legal strategy in the Jane Roe II case has provoked a range of responses within the pro-life movement, and he challenged pro-life people to “expand their understanding” of the issue. He listed “four broad divisions: those who have no clue; those who understand the legal concept but do not hate FACE; those who think it’s a non-issue; and those who see it for what it is.”

Hirsh has been involved in pro-life activity for more than twenty years. His beliefs led him to law school and his current profession. He describes himself as “a defender of the unpopular,” adding that his work is “to fight abortion, and my goal is to be out of business. I would like to go on to fight something else.” Hirsh said the problem of forced abortion demands awareness and action. “I wish I could jolt awake the pro-life community,” he said. “Not to demean anybody, but a Life Chain once a year is not going to cut it. Don’t get me wrong—Life Chain is good— but people can do more.”

One avenue of action is to encourage women who have been forced into an abortion to seek legal redress. In situations like the Florida case, where “abortion providers have admitted doing these things that would be a violation of FACE,” pro-life people have legal options, he said. “Tons of women have had abortions,” he said, and some of those involved force. “Encourage women you know who have been so impacted to come forward.” Anyone with legal questions in this area may contact Life Legal Defense Foundation (www.lldf.org—707-224-6675). [Please see article on Operation Outcry (p. 10), for information on a program and organization set up precisely for this purpose.—Ed.]

There are no perfect cases, but there are defendable cases, Hirsh said. Women who have been forced to enter or stay in a clinic “have remedies at law and they are not limited to medical malpractice claims, though I am not opposed to those. Under FACE, you can recover damages and you can not only secure remedies for yourself but you can make things better for others in the future, and you can run the cost of butchering women higher. . . . This is a problem of nationwide significance.”

The Population Research Institute agrees that the issue needs action. It has launched an “About FACE” campaign to protect American women against violations committed in private and state-funded abortion clinics and at family planning centers. The institute gives these examples as guidelines: A man who threatens to beat his pregnant girlfriend unless she gets an abortion is violating the FACE act. Abortion clinic workers who make it impossible for a woman to change her mind after entry are violating the FACE act.

The new legal precedent can also be used to guard against a range of abortion-related abuses, including lack of informed consent and lack of information about the side effects of abortion. Ultimately, it can help protect women in the United States from abortions performed under physical and psychological duress, according to PRI. Meanwhile, the non-profit institute also continues to investigate and lobby against forced abortions abroad, and against U.S. support for programs that allow such abuses. Further information is available at the Population Research Institute web site: www.pop.org.

Among the key terms used in the FACT Act are these:

Interfere with—The term “interfere with” means to restrict a person’s freedom of movement.

Intimidate—The term “intimidate” means to place a person in reasonable apprehension of bodily harm to him- or herself or to another.

Physical obstruction—The term “physical obstruction” means rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous.