FACE Act Under Heightened Scrutiny as President Trump Pardons Pro-Life Advocates

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Introduction

For decades, the abortion debate has raged on, and the Dobbs v. Jackson Women’s Health Organization decision handed down by the United States Supreme Court, added to the controversy by overturning Roe v. Wade, a decision that had stood since 1973, enshrining abortion as a fundamental constitutional right.

Since Dobbs, the number of pro-life activists being prosecuted for violations of the 18 U.S.C. § 248 Freedom of Access to Clinic Entrances (FACE) Act saw a marked uptick under the Biden Administration. Some of those who have been prosecuted under the FACE Act allege that the law violates their constitutional rights and disproportionately targets pro-life activists compared to the other groups the FACE Act also claims to protect.  However, supporters of the FACE Act claim there is a compelling interest in heightened protections for facilities that perform abortions.

The FACE Act and its Controversy

The Freedom of Access to Clinic Entrances Act (FACE Act) was passed in May of 1994 and was signed into law by President Clinton.  The statute creates federal jurisdiction and penalties for a person who: (1) attempts to interfere with another as they are attempting to acquire reproductive health services; (2) attempts to interfere with another as they exercise their right to religious freedom at a place of worship; or (3) damages the property of a reproductive healthcare center or religious place of worship.

This statute has been used to protect healthcare locations that provide abortions and prosecute those who have attacked doctors for performing those abortions.  Some of these attacks were deadly, such as the murder of Dr. David Gunn, who was shot and killed outside an abortion clinic during an anti-abortion protest. This case acted as the primary motivation for this legislation.

The language of the act is intended to protect abortion centers, churches, crisis pregnancy centers, and doctor’s offices equally; however, many on the pro-life side claim that the statute has been weaponized and applied one-sidedly, especially post-Dobbs.  Over a quarter of the total number of cases brought under the FACE Act were prosecuted in just four years under the Biden Administration.  A letter from the Department of Justice, dated May 14, 2024, states that from January 2021 to May 2024, the DOJ charged 55 defendants with violations of the FACE Act, and obtained 34 convictions.  According to Congressman Chip Roy, there have been a total of 205 civil and criminal    A study by the Crime Prevention Research Center showed that pro-life pregnancy centers experienced 22 times more violence than pro-choice healthcare facilities from May to September 2022.  From May to September of 2022, there were 135 identified attacks on pro-life pregnancy centers.  During the same time, the study shows there were only six attacks on abortion centers.

On the other hand, supporters of the FACE Act cite the need for federal protections due to continued instances of threats to clinics and providers that offer abortions.  Pro-choice advocates claim that there has been a substantial increase in the number of incidents at abortion clinics since Dobbs.  A 2022 report from the National Abortion Federation (NAF) showed a sharp rise in incidents targeting abortion clinic staff and patients, including a 229% increase in stalking, a 231% increase in burglaries, and a 100% increase in arson incidents.  The FACE Act also establishes the National Task Force On Violence Against Reproductive Health Care Providers within the DOJ.  This task force keeps active statistics on attacks on abortion centers, provides security recommendations to enhance the safety of providers, and supports the Office of the Attorney General in coordinating and prosecuting FACE Act cases.

History

In March of 1970, Jane Roe brought suit against her county’s district attorney in Texas, seeking a declaratory judgment that the Texas abortion statutes, which prohibited procuring or performing an abortion–except to save the life of the mother–were unconstitutional on their face.  In an opinion authored by Justice Blackmun, the Supreme Court relied upon notions of substantive due process, derived from the Fourteenth Amendment, to hold that there was a fundamental right to privacy that guaranteed the right to an abortion.  Many legal scholars at the time disagreed with the Court’s reasoning in Roe v. Wade–even if they agreed with the outcome–due to the Court’s use of substantive due process.

After Roe, many groups came out against the practice of abortion.  There were thousands of protests and several attacks on clinics and doctors who performed abortions, some of them deadly.  Many states passed protections for abortion clinics to deter vandals and impose time, place, and manner restrictions on protestors.  Time, place, and manner restrictions are laws that restrict the freedom of speech; however, they do so in a way that is only restrictive of when, where, and how people can speak, not what they can say.

The Supreme Court generally upheld these laws, as they were ruled to be content-neutral, but the imposition of these laws led to a string of constitutional litigation.  Such as McCullen v. Coakley, which upheld a law that prevented sidewalk counselors from approaching women as they walked into abortion clinics, affirmed facially content-neutral time, place, and manner restrictions on First Amendment rights when it came to the issue of abortion.

In 2022, the Supreme Court issued an opinion in Dobbs v. Jackson Women’s Health Organization, overturning Roe and holding that there was not a fundamental right to an abortion provided by the United States Constitution.  As a result, individual states now have broad legislative control of abortion policy–including up to what point abortion is legal or whether to ban abortion entirely.

Adding to the controversy surrounding Roe and Dobbs is the fact that both opinions were leaked to the press before they were released, as well as the fallout from the leaks.  Just before the Decision in Roe was released, Time magazine published the result of the decision.  A law clerk at the Supreme Court, Larry Hammond, told a friend from law school who, in turn, informed Time.  In much more drastic form, the entire majority opinion of the Dobbs decision was leaked to Politico by someone inside the Court.

Investigators have since concluded their investigation, failing to identify the person(s) who leaked the Dobbs opinion.  The opinion being leaked led to the conservative justices on the Supreme Court receiving threats against their lives, causing all the justices to have increased security.  Justice Alito, the author of the Dobbs opinion, claimed that the leak made the justices “targets of assassination.” One man even came to Justice Gorsuch’s home armed and with a plan to kill at least three Justices.

In response to the Dobbs decision, nine states have amended their state constitutions to create a state right to an abortion–including Arizona, Ohio, and Michigan.  Conversely, 12 states have passed total abortion bans.  The extreme controversy surrounding Dobbs has led to increased protests on both sides of the issue, such as in Mt. Juliet, Tennessee.

Mt. Juliet Protests, Court Case, and Pardons 

In March of 2021, police arrested 11 members of a group of approximately 22 that had traveled to Mt. Juliet, Tennessee, to protest the clinic’s practice of abortion.  The protests initially began inside the medical complex, but after being asked to leave, most of the protestors moved to the pavilion outside the facility, where they continued to protest.  Most of the protestors were peaceful, praying and singing hymns for several hours in the hallway in front of the clinic.  However, several protestors stood directly in front of the door, blocking access to and from the clinic.  The blockade prevented several women from attending their appointments, including one woman interviewed by the news who sees a doctor twice a week due to her gestational diabetes. The group can be seen inside the medical complex that houses Carafem Reproductive Health Clinic, a clinic that offers abortions along with other obstetrical services, along each side of the hallway and blocking the entrance to the clinic itself in a March 2021 video posted to Facebook.

These protestors were indicted for Conspiracy Against Rights and violations of the FACE ACT pursuant to U.S.C. §§ 241, 248.  Represented by attorneys from the Thomas More Society, the 11 defendants made several arguments at trial, including that abortion can no longer be considered a “reproductive health service” post-Dobbs, the government was engaging in selective prosecution, the FACE is a content-based regulation of speech, the FACE Act violates the Religious Freedom Restoration Act RFRA and the Free Expression clause, the charges of conspiracy were improper, and that Congress lacked authority under the Commerce Clause to enact the FACE Act.

All of the defendants were found guilty and individually sentenced to punishments varying from 90 days of home detention to 16 months in prison plus 3 years of probation. Chester Gallagher, a 73-year-old man, was sentenced to 16 months in prison for a non-violent FACE Act violation.  Attorneys for the defendants filed a Notice of Appeal to the Sixth Circuit Court of Appeals under the caption USA v. Dennis Green in July of 2024.  However, the case was never decided on the merits due to a wave of pardons handed down by President Trump.

President Trump made it a point to support pro-life protesters who have been convicted under the FACE Act on at least two occasions on the campaign trail.  In a speech made to the Faith and Freedom Coalition, President Trump said that he would “rapidly review the cases of every political prisoner who’s unjustly victimized by the Biden regime.” On January 23, President Trump pardoned 23 protestors who were convicted of FACE Act violations, including the Mt. Juliet Protesters, in a sweeping wave of pardons over the first days of his second term.  Attorneys from the Thomas Moore Society filed formal pardon requests for 21 of the 23 defendants prosecuted by the Biden Administration.

Conclusion 

While the presidential pardons bring the most recent FACE Act cases to a close, they also eradicate the possibility of any final judicial disposition on the subject.  Now that the issues are mooted and the Sixth Circuit has dismissed the cases, the important legal questions about the FACE Act will remain unanswered.

In September of 2023, Representative Chip Roy, along with 47 other Republican co-sponsors, proposed legislation in the House of Representatives to repeal the FACE Act.  In May of 2024, Representatives Chip Roy and Mike Lee renewed the call for this legislation to be passed in an Op-ed in Newsweek.  The ball is in Congress’s court, and it remains to be seen whether they will pick it up and run with it.  Republicans control the Presidency and Congress, with a slim majority in the House; infighting and reelection campaigns of the members from the more moderate districts may stall any legislative progress until after the midterm elections in 2026.  Despite this, in a press release on January 21, Representative Roy called on Congress again to do its part in repealing the FACE Act.  As of the date of this publication, the legislation is stalled and awaiting hearing by the House Judicial Committee.

However, the Trump administration has already instituted a sea change of prosecutorial discretion under Attorney General Pam Bondi that will decrease the number of defendants charged under the FACE Act.  No matter what side of the issue one falls on, it is in the best interest of everyone that the issue be determined quickly.