The Abortion Fight at Ground Zero: Is the FACE Act Being Enforced?

A federal law, commonly referred to as the FACE Act, was supposed to curb disruption and violence at abortion Clinics. But does it?

This article is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. The series on the FACE Act was coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. Rewire and Wendy Norris are deeply grateful to the Harry Frank Guggenheim Foundation for their generous support of this project.

Next in this series will be Anatomy of FACE: How a violent anti-abortion protester has terrorized a clinic for more than 30 years — and why he’s still there.

John Dunkle paces along a narrow alley waiting for his cue.

As clinic escorts hoist heavy blue tarps to shield patients from the phalanx of anti-abortion protesters assailing them, Dunkle springs into action.

Megaphone in hand, the spry 72-year-old stakes out the door barking lurid catcalls at women entering the Allentown Women’s Center.

By day’s end, the retired English teacher will have bolted across that alley at least a dozen times.

Until one day when the scene took a much more sinister turn.

Days after the May 31 execution-style murder of Wichita physician George Tiller by an anti-abortion extremist, Dunkle sidled up to a clinic escort and asked:

Which way would you rather die — by bullet or the slow torturous death of a knife?

So goes the abortion wars. What could be sloughed off as callous behavior in the midst of heated debate is causing renewed alarm among law enforcement experts.

Menacing behavior is on the upswing nationwide and is proving to be emblematic of a growing extremism against clinics by militants emboldened by Tiller’s death. Currently, federal authorities are currently investigating more than two dozen cases of suspected violent criminal acts or serious threats, according to law enforcement insiders.

And that trend is prompting officials to question the effectiveness of the federal law created to serve as a deterrent to clinic violence.

Playing cat and mouse

In the years following the landmark 1973 U.S. Supreme Court decision Roe v Wade affirming legal access to abortion services, organized protests grew in number and intensity.

In 1994, after decades of escalating extremism, President Bill Clinton signed the Freedom to Access Clinic Entrances (FACE) Act to provide both civil and criminal remedies to stem clinic violence and blockades.

The law prohibits “certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services.” The new rules also defined federal penalties for clinic property damage and destruction that had been the early aim of radical abortion foes primarily through bombing, arson and vandalism.

The intent of FACE was also to provide needed clarity for local law enforcement agencies on the often murky degrees of separation between constitutionally-protected free speech and public safety threat.

Even as the law was initially vigorously enforced violence-prone abortion opponents have adapted to test its limits.

Dunkle’s scrapes with the law offer a telling roadmap.

In 1994, he was arrested along with 20 members of a nomadic extremist group, the Lambs of Christ, for physically blockading a Rochester, N.Y., clinic by chaining themselves to a junked car dropped near the door. It took police and firefighters hours to extract the protesters. The protesters were charged in federal court with a miscellaneous civil rights violation, collectively fined $20,000 and ordered to stay away from the clinic.

Except, the permanent injunction, like others before FACE, did little to thwart the protesters. The Rochester clinic and others in western New York would be the scene of violent and repeated clashes with local police for years to come despite repeated injunctions, unpaid fines and brief jail stints. The mayhem unleashed by extremists also provided cover for increasing violence that resulted in the deaths of four people and wounding of five at clinics in Buffalo, Brookline, Mass., and Pensacola, Fla., in 1994.

Over the next dozen years, Dunkle continued his protests while building connections to one of the most virulent extremist groups, the Army of God, a shadowy network that advocates a paleo-conservative Biblical justification for the murder of abortion providers.

In 2007, Dunkle publicly resurfaced in northeast Pennsylvania and once again came to the attention of federal authorities. The devout Catholic posted on his blog that a Philadelphia-area physician should be shot in the head to prevent her from providing abortion services. He was charged with a FACE Act violation and slapped with a permanent injunction barring him from making death threats or otherwise intimidating clinic patients and staff.

But it seemed to have little effect.

Now, when Dunkle and his megaphone aren’t holding fort outside Lehigh Valley women’s health centers, he’s reveling in the exploits of other ideological extremists.

He operates a website that mimics one operated by the Army of God. On it he features serialized manifestos and unrepentant letters from anti-abortion protesters imprisoned for murders, bombings, arsons and attempted attacks against clinics. A point noted by a U.S. District Court judge in his 2007 injunction ordering federal authorities to periodically monitor Dunkle’s site for compliance.

Federal prosecutions don’t keep pace

The situation prior to the FACE Act and in the ensuing 16 years following its enforcement points to a grim reality for reproductive health clinics, staff and patients.

Prior to FACE, the National Abortion Federation tallied 1,641 violent incidences and 8,110 disturbances at clinics between 1977-93. The most violent acts — homicide, kidnappings, stalking, arsons, bombings, butyric acid attacks and clinic invasions — are nearly always attributed to anti-abortion extremists directly connected to or inspired by militant Christian organizations.

Since 1994, the Justice Dept. has prosecuted just 19 civil and 45 criminal cases. The prosecutions have overall been very successful — 62 convictions, one pre-trial diversion and one dismissal because the defendant was deemed incompetent to stand trial. Yet, they pale in contrast to the thousands of incidents reported.

Meanwhile, U.S. Attorneys are currently prosecuting four cases and notched another conviction Apr. 28 in New York City involving a blockade of a long-targeted clinic in Manhattan. The defendants will be sentenced June 10.

The incident and prosecution trends also reveal another truth in enforcing the FACE Act. Some types of violations, like bombings and arson, which alone carry heavy federal sentences have decreased significantly while other crimes are skyrocketing. Again, signaling an evolution in the violence-driven protesters’ tactics to thwart local law enforcement efforts while continuing their mayhem.

Bead-holders versus bomb-throwers

Anti-abortion activists may be united in their anger over Roe but they occupy two very distinct camps.

Motivated by a sense of personal morality, flocks from mainstream Christian churches and affiliated institutions invoke their constitutionally-protected free speech rights to express their opposition.

Largely peaceful, the protesters often recite rosary prayers, sing hymns or try to distribute well-intended but medically inaccurate literature outside the clinic. The more zealous of the bunch resort to shouting at patients about abortion alternatives — a tactic dubbed “sidewalk counseling” by proponents.

In broad terms, the “bead-holders” prefer to legally challenge Roe v. Wade by incrementally restricting abortion services through onerous state and federal laws.

The other end of the protest spectrum is so radicalized that even the most staid law enforcement insiders and religious figures are increasingly describing their actions as domestic terrorism.

They are bomb-throwers, literally and figuratively.

A May 1988 RAND Corporation report on domestic terrorism provides one of the earliest mentions of militant anti-abortion groups as threats to national security. The analysis notes that during the early 1980s these groups were among the most active terrorist movements in the United States. Nearly ideologically-driven “anti-abortion terrorist cells” conducted nearly 50 percent of all domestic terrorist activity in 1984 and 1985.

Groups like the Army of God, Lambs of Christ, Missionaries for the Preborn and the various Operation Rescue splinter groups created from internecine power struggles, all espouse the violent rhetoric, paleo-conservative theocracy and hyper-militancy typically used to describe armed anti-federalist militias and racist groups. And, like other terrorist groups, they are highly networked.

Proselytizing with self-published manuals on arson and bomb-making techniques, they fuel their adherents with fiery, convoluted fundamentalist Biblical interpretations.

Throughout the now 22-year-old report RAND specifically names the Army of God as domestic terrorists — the group to which Dunkle and Tiller’s murderer Scott Roeder have allied themselves. Further, the analysis found that law enforcement officials frequently dismissed evidence of an armed, organized anti-abortion network that threatens national security.

Today, that’s no longer the case.

Over the coming days, Rewire will explore the FACE Act. We’ll be asking tough question about its effect as a deterrent to clinic violence and obstruction. State, local and federal law enforcement officers are talking candidly about jurisdictional issues that impede arrests and prosecutions. And we’ll assess the rise of militant anti-abortion groups and potential new solutions to ensure public safety.

NEXT: Anatomy of FACE. How a violent anti-abortion protester has terrorized a clinic for more than 30 years — and why he’s still there.