SCOTUS, Justice Department Weigh In on Abortion Clinic Access

Pro-choice and pro-life advocates are assessing the impact of several recent moves by the federal government related to abortion clinic access.

In January, the Trump administration announced that it would no longer enforce the Freedom of Access to Clinic Entrances (FACE) Act. Signed by President Clinton in 1994, the FACE Act “prohibits violent, threatening, damaging, and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain, or provide reproductive health services.”

In a Jan. 24 memorandum, Chad Mizelle, deputy chief of staff to the attorney general, wrote that President Trump had directed all agencies to find instances of political weaponization of law enforcement. “To many Americans, prosecutions and civil actions under the FACE Act have been the prototypical example of this weaponization,” he wrote. “Even though more than 100 crisis pregnancy centers, pro-life organizations, and churches were attacked in the immediate aftermath of the Dobbs decision, nearly all prosecutions under the FACE Act have been against pro-life protesters.”

“That is not the even-handed administration of justice,” he continued. “To address this concern … future abortion-related FACE Act prosecutions and civil actions will be permitted only in extraordinary circumstances, or in cases presenting significant aggravating factors, such as death, serious bodily harm, or serious property damage … Additionally, until further notice, no new abortion-related FACE Act actions — criminal or civil — will be permitted without authorization from the Assistant Attorney General for the Civil Rights Division.”

Reactions to the administration’s move were predictably mixed. “For years, the FBI and Department of Justice weaponized the FACE Act to disproportionately limit pro-life outreach and punish pro-life advocates,” Lauren Muzyka, president and CEO of Sidewalk Advocates for Life, whose volunteers speak with patients on their way into reproductive health clinics, said in an email to MedPage Today. “The directive to limit enforcement of FACE to situations involving extreme bodily harm and property damage is appropriate and — we hope — will balance out the use of the law.”

The National Right to Life Committee had a different take, with the organization’s president Carol Tobias noting that “pro-lifers have had a presence outside abortion facilities for many years. The stance by the Department of Justice isn’t going to change that.”

The Planned Parenthood Federation of America noted that Trump had also pardoned 23 people who had violated the FACE Act. “Yet again Donald Trump has pardoned convicted criminals — this time nearly two dozen individuals who have used violence to either harass, intimidate, or even prevent people from getting essential healthcare, including at Planned Parenthood health centers,” the federation said in a statement. “Not even a week into his presidency, Donald Trump has disregarded the law and greenlit violence against abortion providers, all at the expense of people who wish to live in peace and safely exercise the right to control their own bodies and health.”

Melissa Fowler, chief program officer at the National Abortion Federation, pushed back on the administration’s assertion that the FACE Act was used against pro-life protesters and not against those who damaged crisis pregnancy centers. “Post-Dobbs, there were some investigations of [attacks on] crisis pregnancy centers,” she said in a phone interview. “The difference is the volume. There has been a coordinated attack by the anti-abortion movement against abortion providers over the last 50 years. You just don’t see that same behavior on the other side.”

A few states have their own versions of the FACE Act, Fowler said, noting that although she wasn’t sure of the exact number, it was pretty small. “People have relied on the federal FACE Act, which in the last 30 years has been incredibly effective at stopping some of the major types of violence and disruptions that we were seeing at clinics … It has been an effective tool at helping to keep providers safe,” although additional protections are still necessary, she said.

In addition to the Justice Department announcement, the Supreme Court on Monday — with Justice Clarence Thomas dissenting in a written opinion — declined to hear a case that involved the use of “buffer zones” or “bubble zones” to protect patients going into abortion clinics. A buffer zone refers to a fixed area, such as a certain number of feet away from a clinic’s front door, where pro-life protesters and sidewalk counselors are not allowed to go, while a bubble zone refers to a mobile area, such as a certain number of feet around the patient no matter where they are, including, for example, when they’re getting into or out of their car.

The case was known as Coalition Life v. City of Carbondale, Illinois and combined two cases: one involving a bubble zone for an Illinois city and a second involving a buffer zone in New Jersey. The Illinois part of the case was essentially moot, since Carbondale officials had actually already repealed the city ordinance in question, which established an 8-foot bubble zone around abortion clinic patients. In the New Jersey case, a sidewalk counselor sued the city of Englewood for adopting a 2014 ordinance establishing an 8-foot buffer zone outside the entrances and driveways of healthcare facilities.

The fact that the protesters kept pursuing the Carbondale case even after the ordinance was repealed “just shows the length that abortion opponents will go,” Fowler said. “They’re not satisfied with returning Roe. They want to keep going, and they want to really dismantle every protection that exists in this country for abortion providers and patients.”

Muzyka, of Sidewalk Advocates, remained hopeful that the issue would return. “Limiting enforcement of the FACE Act is a powerful step toward allowing women access to the people who are there to provide them with information” to make an informed choice about their pregnancies, she said. “Perhaps in the near future, the Supreme Court will also support women by hearing a case petitioning to limit or forbid bubble and buffer zones outside abortion facilities.”

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