Prosecution of Clinic Violence Lagged Under Bush

The Bush Administration rarely used the existing law to prevent and combat violence against clinics and providers of abortion and other reproductive health services.

Scott Roeder, the 51-year-old accused of murdering women’s health provider Dr. George Tiller in his Wichita, Kans., church, had a long history of ties to a violent right-wing extremist group, had previously threatened another provider, and had just that week vandalized Tiller’s clinic.

Just as federal law specifically penalizes hate crimes, the law also makes it a federal crime to threaten or commit violence against providers of abortion and other services, or to vandalize their clinics. Yet the criminal law was not being enforced.

The day after Dr. George Tiller was murdered, we obtained data revealing that under the Bush administration, criminal enforcement of the federal law designed to protect providers and clinics had declined by more than 75 percent over the last eight years.

But there’s also a civil component to that federal law, known as the
Freedom of Access to Clinic Entrances Act, or FACE Act. That part of
the law allows the attorney general to seek an injunction and
compensatory damages for anyone who’s been harmed by any activity that
violates the law. And it turns out that the Department of Justice over
the last eight years didn’t use that part of the law to protect providers of abortion, either.

Under the FACE Act, in addition to criminal charges, the Justice
Department can obtain damages and an injunction against anyone who “by
force or threat of force or by physical obstruction, intentionally
injures, intimidates or interferes with or attempts to injure,
intimidate or interfere with” anyone who provides or receives
reproductive health services. It also allows the government to
prosecute and sue anyone who “intentionally damages or destroys the
property” of an clinic where abortions are performed, because they are frequently vandalized
as part of protesters’ intimidation tactics. The clinic where Dr. Tiller worked, for example, was repeatedly vandalized, including just days before his murder.

Yet despite these broad powers that Congress granted the attorney
general in 1994 to prevent and combat violence against clinics
and providers of abortion services, the Bush administration almost never used them. From
2000 until 2008, during the eight years of the Bush administration, the
Justice Department filed only one civil case under the FACE Act. From
1994 – 1999, in contrast, in just five years of the Clinton
administration, the Department filed 17 civil cases under the FACE Act — in addition to its much heavier load of criminal cases that we’ve reported before.

It’s possible, of course, that the law was so effective in its early
years that it deterred all future violations. “I do think that the
statute was very effective,” and “for the most part there were fewer
complaints coming to us,” said Cathleen Mahoney, vice president and
general counsel of the National Abortion Federation and director of the
Justice Department’s Task Force on Violence Against Reproductive Health
Care Providers until 2006.

But crime statistics provided by the National Abortion Federation
show that violence did not stop when the Bush administration came into
office. The group reports 3,291 acts of violence against
providers in the United States and Canada between 2000 and 2008 — and
that’s only the number of incidents they know about. (The total number
of incidents in the U.S. alone was not available.) The group warns on
its website that “actual incidents are likely much higher.” That number
does not include threats, vandalism and harassment, which are also
violations of the FACE Act.

The NAF — the organization that most closely tracks such data in the
United States — also reports that between 2000 and 2008 there were at
least 17 cases of “extreme” violence against providers in the
United States, such as arson, stabbing and bomb attacks. At least 607
letters threatening Anthrax contamination (they did not actually
contain anthrax) were sent to providers between 2000 and 2002
alone. During the entire eight years of the Bush administration, the
federal government prosecuted only 11 individuals for any acts of
violence against clinics or individual providers of abortion services.

Former Attorney General John Ashcroft, although opposed by many abortion-rights advocates for his vehement opposition to keeping abortion legal,
did prosecute the infamous anti-abortion activist and convicted felon
Clayton Lee Waagner for the anthrax threats, which attracted
significant public attention because they were sent just after
lawmakers and news organizations received letters containing anthrax
spores, prompting nationwide fears of deadly biological terror attacks.

Waagner was an easy target: a fugitive who’d escaped from jail in
February 2001 while awaiting sentencing on federal weapons charges, he
was already on the FBI’s Top Ten Most Wanted List, the U.S. Marshals
Service Fifteen Most Wanted List, and the Ten Most Wanted List of the
Bureau of Alcohol, Tobacco and Firearms. He was arrested in November
2001 and promptly claimed responsibility for over 550 anthrax threat
letters sent to providers in October and November. The letters
were signed by the Army of God, an extremist anti-abortion group
that openly advocates violence against specific physicians who provide
abortions. Waagner’s supporters in the Army of God, however, were not
prosecuted or even sued for civil damages or injunctions under the FACE
Act, although the group was responsible for distributing a manual that
supplies detailed instructions for attacking clinics,
manufacturing bombs and cutting off the hands of doctors who provide abortion services,
according to SourceWatch. The FBI has characterized the prosecution of
Waagner as a “counterterrorism case,” suggesting that the “Army of God” is considered a domestic terrorist organization by federal law enforcement.

Yet despite the prosecution of Waagner in 2001, the Army of God
today continues to do much the same thing. The group and its members
continue to support and advocate the murder of providers. Its
Website, for example, on Wednesday celebrated the Tiller murder in this
banner headline:

“The lives of innocent babies scheduled to be murdered
by George Tiller are spared by the action of American hero Scott
Roeder. George Tiller the Babykiller reaped what he sowed and is now in
eternal hell.”

It commends previous convicted murderers of doctors providing abortion services as
“heroes,” and continues to host the “Nuremberg Files,” a notorious list
of the names of providers and recipients, with a line through
those that have been killed and names grayed of those who have been
murdered. (The Ninth Circuit Court of Appeals in 2002 found that these
constituted threats to the doctors.)

As Rachel Maddow recently described the Army of God’s current Website on MSNBC:

“You can actually scroll through pages and pages of mug
shots and descriptions of bombings and shootings and murders and
attempted murders — all praising the perpetrators, and even suggesting
ways to get away with the same types of crimes that these people
committed but you could do it without getting caught.”

Although such conduct has in the past led to violence, the threats
are often not prosecuted by local police. According to Dr. Susan
Robinson, who used to perform abortions at the same Wichita clinic as Dr. Tiller did before it was closed: “they allow the anti-abortion protesters to set up dozens of crosses and leave them all day. Dr. Tiller went to the city attorney over the crosses,
and complained that people block the clinic driveway,” she told
journalist Amy Goodman. “He told me that the city attorney said, ‘I
would rather be sued by George Tiller than the anti-abortion folks.’”

The federal law was enacted in part to fill in the gaps when local
authorities refused or lacked the resources to bring charges. “Often
local police won’t enforce the local laws against trespassing,”
explained Mahoney, the former federal prosecutor. “It’s politically
charged and local police want to stay out of it.” During her tenure at
the Department of Justice, Mahoney said it was the Civil Rights
Division of the Justice Department that was charged with enforcing the
FACE Act. That’s the same division that Inspector General reports and
Congressional hearings eventually revealed repeatedly made hiring and enforcement decisions based on conservative political ideology rather than merit.

In the one situation in the last eight years that the Bush Justice
Department decided did merit a lawsuit, in 2007, the charges were so
serious that it’s not clear why the administration filed a civil suit
rather than criminal charges. The federal government sought only an
injunction — essentially, a court order telling the defendant to stop.

Yet this was no mere schoolyard-style harassment. According to the
legal complaint filed by the Justice Department, John Dunkle, another
member of the “Army of God”, had been publishing a monthly Web
newsletter “encouraging readers of his publications to use deadly force
against specifically identified reproductive health clinic physicians
and staff, providing instruction on how to employ deadly force tactics;
provoking physical and verbal confrontations with reproductive health
clinic physicians, staff and patients at various clinics” and
“publishing internet postings containing photographs and the home
addresses of reproductive health clinic physicians and staff,” among
other things.

The government also claimed that he “threatened a specific female
clinic physician until she ceased providing reproductive health
services in fear of the Defendants’ threats to her life.”

Those threats included “explicitly encourag[ing] his readers to kill
the targeted individual by shooting her in the head”; publishing her
name, photo and home address on his Web page and blog; and publishing
instructions “regarding the specific means to kill the targeted
individual, as well as how to escape detection upon the commission of
her murder.” Such postings dated back more than two years, identifying
the same person.

There is no question that such threats are criminal under the
federal law, say legal experts. “Physical obstruction is not protected,
violence is not protected and true threats are not protected,” said
Louise Melling, Director of the ACLU’s Reproductive Freedom Project,
which has submitted several amicus briefs to courts defending the
constitutionality of the federal law. A “true threat” has been defined
by the courts has a threat that would reasonably be interpreted by the
person hearing it as a serious threat to their safety.

Yet in the case of John Dunkle, whose threats caused a reproductive
health provider to quit her profession, the government did not seek
criminal penalties or even any monetary damages to compensate the
victims and deter future crimes; it simply asked the court to tell him
to stop.

Department of Justice spokesman Alejandro Miyar said that department
officials decide whether or not to prosecute or seek damages in cases
“on a case-by-case basis, and a number of factors are taken into
account, including — among others — whether there is an identifiable
subject and whether the matter is being pursued by local officials.” He
was not aware of whether Dunkle had been prosecuted for related acts
under state law, and there was no indication in the documents filed in
the federal case that he had been.

Threats against providers appears to have had a serious
impact on the availability of the procedure, and particularly on the
ability of women to obtain legal later-term abortions, even when the
pregnancy threatens the woman’s life. According to the Guttmacher
Institute, a nonprofit organization focused on sexual and reproductive
health research, only two percent of all abortion providers in the
United States currently provide such procedures, which are most heavily
targeted by extremist anti-choice groups. Women most commonly seek
such abortions due to abnormalities of the fetus and threats to a
woman’s health or life, and in many states they’re only legal if the
woman’s health or life is in danger. Dr. Tiller and his clinic were therefore frequent targets of both violent threats and actions, up until the day before his death.

The FACE Act was adopted to prevent and prosecute this sort of
violence, in part because Congress concluded that existing state laws
and local law enforcement were unable to do the job on their own.

When President Clinton signed the FACE Act in 1994,
he said: “We simply cannot — we must not — continue to allow the
attacks, the incidents of arson, the campaigns of intimidation upon
law-abiding citizens that (have) given rise to this law,” citing the
murder of Dr. David Gunn in Florida in 1993, and the shooting of Dr.
Tiller in both arms outside his clinic in Wichita that same year.

“No person seeking medical care, no physician providing that care
should have to endure harassments or threats or obstruction or
intimidation or even murder from vigilantes who take the law into their
own hands because they think they know what the law ought to be.”

The statistics on enforcement of the FACE Act by the Justice
Department suggest that during the Bush administration, protecting
those physicians was no longer a high priority.