Originally introduced in 1992 by then House members Charles Schumer (D-NY), Constance Morella (R-MD), and Senator Ted Kennedy (D-MA), it gained impetus for passage only after the first death of an abortion provider, Dr. Paul Gunn of Florida, killed by anti-abortion extremists in 1993. The FACE Act was passed in 1994.
The FACE Act prohibits the intentional use of force, threat, or physical obstruction to either attempt or actually to injure, intimidate, or interfere with somebody providing or obtaining reproductive health services. It also punishes anyone found to be intentionally damaging or destroying a reproductive health facility (www.prochoice.org, National Abortion Federation website, 12/17/2005). This legislation protects not only facilities at which abortions are actually provided but also those providing ‘‘medical, surgical, counseling, or referral services related to pregnancy (or the termination of pregnancy). It covers facilities located in hospitals, clinics, doctors’ offices or ‘‘any other facility providing’’ such health services (NAF website). Those protected at both pro-choice and prolife ‘‘pregnancy crisis centers’’ include security guards, maintenance staff, patients, and their escorts.
As with other attempts to limit the presence of anti-abortion activity at reproductive health clinics, two sets of constitutional challenges have been brought. The first concerns the assertion of a First Amendment freedom of speech right to tell clients about opposing views outside clinics. Most states have dealt with this question through constitutionally protected ‘‘buffer zones’’ of a certain radius outside clinics. The FACE Act does not prohibit constitutionally protected speech, only those threatening or intimidating activities designed to prevent clients from reaching the clinic.
The second constitutional question that has been raised in response to this Act has been that of Congress’ authority to affect the private sector (the operation of clinics). In 1997 and 2005, the Fifth Circuit Court of Appeals ruled that the FACE Act was constitutional, based on Congressional authority to ‘‘regulate commerce among the states’’ as granted by the commerce clause in Article I. Those opposing this view argue that those who interfere with reproductive clinics are not engaging in ‘‘commercial or economic’’ activity as required by the statute. This argument has been successfully used to continuously appeal judgments against Joseph Scheidler of the Pro- Life Action League and Randall Terry of Operation Rescue under the RICO statute, passed in the 1970s to curtail racketeering. However, it has not damaged the FACE Act. The FACE Act was written specifically for reproductive health facilities and thus does not suffer the constitutional problems of trying to apply an ‘‘overly broad’’ statute. Each of the eight federal appeals courts that has heard challenges to FACE have upheld its constitutionality, and the Supreme Court has been asked but chosen not to review these cases (unlike the RICO statute cases regarding abortion clinics). Similarly, federal appeals courts have upheld Congress’ right to enact FACE through its commerce clause powers. The Alan Guttmacher Institute reports that as of December 2005, thirteen states and the District of Columbia have enacted state FACE statutes specifically with respect to abortion providers.1
The FACE Act provides for criminal and civil penalties. Only the federal government can file criminal charges, whereas federal and state governments or any person harmed by a prohibited act under FACE can file a civil lawsuit against a violator. Criminal penalties include one year in prison and a fine of $100,000 for a first-time offender and penalties up to $250,000 and three years in prison for subsequent offenses. For offenses that are nonviolent in nature (yet still constitute physical obstructions of facilities), the penalties begin at 6 months’ jail time and a fine of
1Alan Guttmacher Institute, www.guttmacher.org, ‘‘State Policies in Brief: Protecting Access to Clinics,’’ as of December 1, 2005; website accessed 12/17/05.
$10,000 (both of which are increased on subsequent offenses). The maximum sentence contained in the legislation is ten years in prison for bodily injury and life imprisonment for causing death (NAF website, 12/17/2005). Civil penalties may include fines of $10,000 or $15,000 and also the potential of getting an injunction against further actions by the protesters.
The National Abortion Federation website, www. prochoice.org, states that FACE prosecutions have been extremely successful in deterring ‘‘hard-core’’ violence at reproductive clinics. This is important, because some actions have included the gluing of locks or spraying of butyric acid (rendering a facility unusable): a woman in 1996 who threatened a doctor by shouting, ‘‘remember what happened to Dr. Gunn; this could happen to you,’’ and a man who parked a Ryder truck outside a clinic shortly after the Oklahoma City bombings. In 1994, at the time of the act’s passage, half the clinics (fifty-two percent) reported some type of violence directed against them that would be actionable under FACE (such as bombing, arson, stalking, gunfire, or physical violence). That percentage had been reduced by more than half (to twenty percent total) by 2000, usually attributed to the legislation’s enforcement. On the other hand, violence directed at clinics has not totally ceased. For example, in the two months after the September 11, 2001, attacks, 500 reproductive and women’s rights facilities reported anthrax threats. Similarly, in 2004, the Feminist Majority Foundation stated that about one in every five reproductive care facility in the United States reports that it continues to experience violence.
References and Further Reading
See also Abortion