Pro-life advocates FACE wave of attacks

by Allison Aranda

Just a few months ago, life advocates gathered outside the United States Supreme Court prayerfully anticipating the landmark decision that would overturn Roe v. Wade. When the decision in Dobbs v. Jackson Women’s Health Organization was announced, America took the first steps toward reclaiming its responsibility to protect the unborn. 

In the wake of the Dobbs decision, the number of abortion clinics is dwindling as states are now free to pass laws to protect the unborn from being murdered in the womb.  As pro-life advocates focus their life-saving efforts at the abortion clinics that remain open, the clinics are more desperate than ever to silence their message of help and hope.  Consequently, the Biden administration is using the FACE Act to intimidate, bully, and persecute peaceful sidewalk counselors.  We’ve seen a drastic rise in the number of civil and criminal FACE actions brought by the Department of Justice in recent months. 

What is the FACE Act?  The Freedom of Access to Clinic Entrances (FACE) Act, passed by Congress in 1994, was designed to protect abortion providers and women seeking abortions from threats and physical violence. 

What was the impetus for such a law in the first place?  The pro-abortion lobby justified the need for the FACE Act by pointing to rare, isolated incidents of real violence against abortionists and abortion clinics.  The abortion industry professed before Congress that these incidents were increasing in frequency and threatened the safety of abortion providers. 

The FACE Act purported to curb violence, not to eradicate prolife speech in front of abortion clinics altogether.  Notably, §248(d)(5) of the Act states expressly that nothing in it “shall be construed or interpreted to prohibit any expressive conduct (including picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.”

Ironically, the law that expressly provides protection for pro-life free speech activities is being wielded as a sword, once again, by an extremely hostile President.  Shortly after the Supreme Court overruled Roe v. Wade, Biden’s Department of Justice announced the establishment of the Reproductive Rights Task Force.  The task force was specifically designed to target, intimidate, and harass pro-life advocates who dare to lovingly speak truth and offer live saving alternatives outside of our nation’s deathcamps.

This isn’t the first time we’ve seen a politicized DOJ launch an all-out attack on pro-life advocates.  In 2009, just months after Obama took office, his administration convened a meeting of the National Task Force on Violence Against Reproductive Health Care Providers in June 2009.  As a result, the DOJ began conducting nationwide FACE Act trainings in collaboration with its regional offices, local law enforcement agencies, and Planned Parenthood.  Immediately following the Task Force announcement and trainings, several peaceful pro-life sidewalk counselors came under investigation.  And, in less than three years after the task force declared war against the prolife movement, the Department of Justice had filed nine civil lawsuits under the Freedom of Access to Clinic Entrances Act, a statistic they touted before the Senate Judiciary Committee.

FACE persecutions are not limited to governmental overreach.  Recently in the Middle District of Tennessee, the abortion clinic itself filed a lawsuit against peaceful pro-life advocates, claiming they violated the FACE Act.

Operation Save America (OSA) hosted a week of education and outreach entitled “Foundations of Freedom” during the last week of July 2022.  A.J. Hurley, Executive Director of Survivors of the Abortion Holocaust, attended the event and was one of the guest speakers.  On July 26, attendees gathered outside of the Carafem abortion clinic in Mt. Juliet, Tennessee, to pray, worship, and hold signs in celebration of its anticipated closure in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.  Tennessee is one of the states that had a law on the books banning abortion once Roe was overturned.  The law, known as a “trigger law,” was set to go into effect 30 days after “the issuance of a judgment” by the Supreme Court overturning Roe.

Many of the attendees at the event did not realize that the Supreme Court issues “judgments” 30 days after its decisions are announced. Thus, the judgment in Dobbs was not issued until July 26, and abortion did not become illegal until August 25.

When A.J. Hurley and members of OSA learned the Tennessee clinic was still scheduling abortions, they approached security guards outside to find out if the clinic was in fact still performing abortions and possibly violating the law.  The men had a peaceful conversation with the guards.  At no time did the group enter the building, nor did they prevent others from entering or exiting the building.  In fact, in a video posted by Brent Buckley, one can see Hurley and OSA members instructing the guards to move out of the way so that others could enter and exit the building.  After a peaceful conversation with the police about the specific timing of the “trigger law,” the men returned to the public sidewalk and continued their constitutionally protected free speech activities. 

One might be thinking, what’s the big deal? I don’t see anything illegal about what the men did; after all, the FACE Act only prohibits, “by force or threat of force or physical obstruction,” “intentionally injuring, intimidating, or interfering” persons seeking to provide or obtain abortions. Hurley and the others’ actions were anything but that.  And you are correct!  The legislative history reveals that lawmakers claimed before Congress, “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.  

It seems even the Mt. Juliet police understood the law quite clearly.  Not once did the police demand that Hurley or the others cease their activities or tell them that they were violating the law.  In a report of the incident, the police acknowledged that “although the men covered a large portion of the entrance…[the] video … showed other patrons coming and going freely from the building with no obstruction.”

But that did not stop the Carafem clinic from filing a lawsuit falsely claiming that the men trespassed, played loud noise causing a nuisance, physically blocked people from entering and exiting the building, and made threats in violation of the FACE Act.  And the Biden Administration filed a brief in support of the clinic’s lawsuit, arguing that FACE should be construed “broadly.” 

Remember, the lawful activities of the life advocates were videorecorded, so the evidence speaks for itself.  Not to mention the fact that police did not arrest the men for any violation of law!

Life Legal attorneys and local affiliates are fighting this frivolous lawsuit. We will not tolerate abuse of power by the government or patently false legal accusations from abortion profiteers whose chief agenda is to bully and silence peaceful pro-life advocates. Life Legal has, and always will, stand for the rights of sidewalk counselors and pro-life advocates across the nation.