The Department of Justice on Monday announced it was “urgently” exploring all options to challenge Texas SB 8, the blatantly unconstitutional pre-viability abortion ban the Supreme Court allowed to take effect last week.
The announcement, made via press release on Labor Day, said the Justice Department would “not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.”
Monday’s announcement is, to borrow a Texas euphemism, all hat and no cattle. Here’s why.
The Freedom of Access to Clinic Entrances (FACE) Act is a federal law prohibiting the use of force, threats, and/or physical obstruction to injure, intimidate, or interfere with a person seeking to obtain or provide abortion services. It also prohibits intentional property damage of a facility providing abortion services. Congress passed it in 1994 following a wave of anti-choice terrorism that resulted in the murder of Dr. David Gunn in Pensacola, Florida.
In many ways the FACE Act is a natural tool for the Biden administration to use in fighting back against SB 8 because the origins—or the most pernicious parts of the Texas ban—are found in the roots of anti-choice terrorism. But those origins also show the limitations of enforcing the FACE Act.
SB 8 not only bans abortion as soon as a provider detects cardiac activity in the embryo, which can occur as early as six weeks into a pregnancy, it also outsources enforcement of the ban to private citizens, effectively deputizing third parties to act as agents of the state as an attempt to insulate the law from successful legal challenge. It’s a mess of a provision that has caught many legal observers off guard, but it’s not a new tactic for the anti-choice movement.
Secret criminal investigation
In 2003, shortly after taking office, Kansas Attorney General Phil Kline, a staunch anti-abortion advocate, opened a secret criminal investigation to search for evidence of wrongdoing by area Planned Parenthood affiliates and Dr. George Tiller, a Kansas-area abortion provider. As part of that investigation, Kline asked a state judge to issue more than 90 subpoenas for complete original patient medical records. A big court fight ensued around the records that resulted in partially redacted medical records being disclosed to Kline’s office.
What happened next is the stuff of nightmares. While Kline was fighting to publicize abortion clinic records, he was also in a big re-election fight. He lost, and in 2007 on the last day in office as attorney general, Kline directed his staff to make photocopies of the redacted medical records. For the next two months, Kline and his goons moved these records unsecured and unprotected all around a state known as a hotbed of anti-abortion terrorism and violence.
Meanwhile, Kline’s electoral loss wasn’t the end of his political career in Kansas. After his loss but before Kline left office, the Johnson County Kansas Republican Central Committee named Kline to a two-year term as district attorney.
As district attorney, Kline filed more than 100 baseless claims against abortion providers in the state. The amplification had deadly consequences. In 2009, Scott Roeder murdered Dr. George Tiller while Tiller was serving as an usher at his local church.
Kline’s law license was suspended indefinitely for these actions. He is currently an associate law professor at Liberty University.
Tiller’s murder sent shockwaves through the abortion rights and access community, but it didn’t come as a surprise thanks to the environment Kline cultivated. Just one year after Dr. Tiller’s death, threats to other providers began.
Some, like the letter and bomb threats to Dr. Mila Means, were specific and targeted. Others were more diffuse. In 2012 Troy Newman, then the president of Wichita-based Operation Rescue, announced his organization was in possession of dozens of patient records from a local abortion clinic. At the time, Newman claimed a confidential informant delivered him the patient records. Cheryl Pilate, an attorney for the clinic in 2012, told local press that someone had broken into a locked dumpster on clinic property. Newman used the records as an opportunity to call for more investigations of abortion providers in the area and, perhaps more chillingly, to just let the public know a group with ties to acts of domestic violence was in possession of patient records.
The terroristic tactics would spread. All while the FACE Act was on the books.
Surveilling patients and providers
Jonathan Bloedow is a name familiar to those who track anti-choice violence. Back in the early days of the Obama administration, Bloedow began filing a series of records request under Washington’s state’s Public Records Act, looking for details on abortions provided at clinics around the state. Bloedow’s requests sought information like the patient’s race and age, last known address, and at what point in the pregnancy the abortion occurred.
Bloedow had at least one purpose in mind with each of those records requests—using the information gathered from the state to launch lawsuits accusing Planned Parenthood affiliates of fraud. Along with attorneys from the Alliance Defending Freedom, the anti-civil rights advocacy organization that Justice Amy Coney Barrett has ties to, Bloedow sued Planned Parenthood in 2011, accusing the reproductive health-care provider of attempting to defraud Congress. Bloedow’s lawsuit was just one of several brought by ADF attorneys that relied on early surveillance techniques by anti-choice activists.
At the time, Operation Rescue activist and Troy Newman associate Cheryl Sullinger applauded the tactics, telling the Washington Post that the surveillance was necessary because this is “about saving the lives of women.”
Bloedow’s lawsuits were eventually dismissed, but those dismissals were hardly the end of the anti-choice community using private parties to surveil patients and providers. In 2015 anti-abortion activist David Daleiden released a series of heavily edited videos through a front organization called the Center for Medical Progress that claimed Planned Parenthood affiliates were selling fetal tissue for profit. Daleiden and other private citizens infiltrated provider conferences, surreptitiously recorded conversations, and then released the videos in a smear campaign designed to curtail abortion access. In the course of the litigation around the CMP videos it was revealed that other major anti-choice advocacy organizations were involved as informal advisers, including Americans United for Life and Troy Newman.
Which brings us back to Monday’s announcement that the Biden administration is looking at using the FACE Act as a response to Texas SB 8: The FACE Act is quite simply not enough to deal with the threat facing abortion access in this country—and it really never was enough. The statute provides for both criminal and civil penalties, which is a good thing, but the penalties alone are not enough to disincentivize anti-choice violence. And the FACE Act is only as effective as the will of the attorneys and federal judges tasked with enforcing it, which means the Justice Department will be relying on a host of Trump judges to enforce it.
Furthermore, the FACE Act almost by definition is reactive because an attorney bringing a FACE Act claim will need to establish evidence of a threat or interruption of access—and at the point that evidence exists, the chilling effect on abortion rights and access has already taken hold.
That’s not to say Attorney General Merrick Garland shouldn’t try here. Quite frankly the Biden administration needs to try everything it can to respond to the threat facing abortion providers and patients, including FACE Act enforcement.
But that enforcement is not enough, and we need to be clear-eyed in assessing promised Democratic responses to the crisis of abortion access in this country. Monday’s statement and promised action land flat because they once again depend on the courts and assume that conservative judicial appointees will faithfully apply the law to protect abortion access in Texas. That is the kind of magical thinking that helped get us into this mess.