Seldom-Enforced Law Opens Window for Suits Against Extreme Anti-Choice Groups

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Seldom-Enforced Law Opens Window for Suits Against Extreme Anti-Choice Groups

Daphne Eviatar

Are laws like the Freedom of Access to Clinic Entrances Act enough to ensure that anti-clinic, anti-provider violence ends?

The threats started in 1995. It was the anniversary of Roe v. Wade, and
the American Coalition of Life Activists decided to create a poster for
their annual meeting listing the names and address of a group of
doctors who performed abortions. They called them “the Deadly Dozen,”
and declared each guilty of “crimes against humanity.” They offered
$5,000 for information leading to their arrest, conviction, or
revocation of their medical licenses. ACLA members distributed the
poster at the group’s events and published it in an affiliated

Then later that year, ACLA unveiled a second poster, this time
targeting Dr. Robert Crist, an abortion provider in Kansas City. The
poster listed his home and work addresses and featured his photograph.
It offered $500 to “any ACLA organization that successfully persuades
Crist to turn from his child killing through activities within ACLA
guidelines,” which prohibited violence.

The following January, ACLA created the “Nuremberg Files” — a series
of dossiers it had compiled on doctors, clinic employees, politicians,
judges and other abortion rights supporters. Dr. George Tiller of
Wichita, Kans., who was killed Sunday, was among them. They would be
prosecuted, ACLA wrote, “once the tide of this nation’s opinion turns
against the wanton slaughter of God’s children.” ACLA sent copies of
the dossiers to an anti-abortion activist who posted the information on
a website. There, the names of those who had been attacked by
“anti-abortion terrorists” — as the court called them — were listed,
with a strike through the names of those who had been murdered. The
names of those wounded were grayed.

Although neither the posters nor the Website contained explicit
threats against the doctors, similar posters had previously been made
of other doctors shortly before they were violently attacked; one was
murdered. Abortion providers soon took to wearing bulletproof vests,
drew the curtains of their home windows and received protection from
U.S. Marshals. The strategy had worked.

Roe is gone. The chaos is just beginning.

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Eventually, some of the doctors, represented by Planned Parenthood,
sued ACLA, twelve activists and an affiliated organization, claiming
that their actions violated the federal Freedom of Access to Clinic
Entrances Act, or FACE act, among other laws. At trial, a jury found
that the statements were “true threats” and therefore not protected by
the First Amendment. The doctors won $107 million in damages and an
injunction barring the anti-abortion activists from distributing
similar information in the future.

Although the anti-abortion protesters appealed, a majority of judges
on the Ninth Circuit Court of Appeals affirmed the verdict. Such
“WANTED”- style posters, the court ruled, in the context of previous
similar threats and subsequent violence, and the lines drawn through
the names of doctors who’d been murdered, were not protected by the
First Amendment: “ACLA’s conduct amounted to a true threat and is not
protected speech.” The Supreme Court declined to review the case, and
it remains good law.

Much of the discussion in the wake of Tiller’s slaying has been
about criminal prosecution of those who murder abortion doctors. But
there’s a growing concern about the anti-abortion extremists — some
call them domestic terrorists — who enable and encourage such murders
by labeling abortion providers “mass murderers”, Nazis and worse, and
implying that violent attacks against them are not only justified, but

As Rachel Maddow revealed in chilling detail in her MSNBC news show
on Monday night, groups such as Rescue America, Prayer and Action News,
Army of God and Operation Rescue Founder Randall Terry all appeared to
be celebrating Tiller’s murder
on Monday. And while extremists who promote violence against abortion
providers could be prosecuted under state and federal law — and
particularly under the federal Freedom to Access Clinic Entrances (FACE) Act — the federal government in recent years has hardly prosecuted any such cases.

According to statistics provided by the Department of Justice, the
Bush administration brought only about two criminal prosecutions per
year in the entire country under the FACE Act, and never more than
four in any single year. The Clinton administration, in contrast,
prosecuted 17 defendants for violations of the FACE Act in 1997 alone,
and an average of about 10 per year since the law was enacted in 1994.
Those cases included one against a woman in 1996 who yelled through a
bullhorn to a doctor, “Robert, remember Dr. Gunn. This could happen to
you …,” referring to Dr. David Gunn, the first abortion doctor ever
murdered, in 1993. In another case, a man who parked a Ryder truck
outside a clinic shortly after the bombing of a federal building in
Oklahoma City, where a Ryder truck had been used to carry explosives,
was found to have threatened force. Stalking, arson and bomb threats
are also illegal.

Whether the dropoff in prosecutions is because the FACE Act
successfully deterred crimes after its enactment or because the Bush
administration wasn’t interested in prosecuting them is not clear. “The
amount of activity really did drop a lot after FACE was enacted and it
was beginning to be enforced,” said Cathleen Mahoney, Executive Vice
President of the National Abortion Federation who was an attorney in
the Justice Department until 2006. “Certainly the political will wasn’t

That’s disappointed Janet Crepps, deputy director of the legal
program at the Center for Reproductive Rights. “I don’t think that the
government has done enough,” she said, noting that while the Clinton
administration had created a task force in the Department of Justice to
coordinate responses to clinic threats and violence, during the Bush
years, “we’ve heard that providers during that time would call DOJ for
help and get no response.”

Justice Department spokesman Alejandro Miyar said Tuesday that the
task force still exists, and in a statement released after the fatal
shooting of Dr. Tiller, Attorney General Eric Holder said that
“[f]ederal law enforcement is coordinating with local law enforcement
officials in Kansas on the investigation of this crime.” It remains to
be seen, however, whether the government will also investigate the
anti-abortion activists who threaten abortion providers and may have
worked with the actual murderer.

But as the Planned Parenthood case illustrates, the doctors and
clinic workers who are targets of violent threats don’t have to wait
for the government to act. The FACE act allows doctors or clinic
workers to privately sue the individuals and groups making the threat.
And although that’s been challenged on First Amendment grounds, its use
has been upheld by the courts in cases where the intent to threaten or
intimidate was clear.

The lawyer who represented Planned Parenthood in that case declined
to be interviewed for this article, citing the sensitivity surrounding
the issues, lack of knowledge of the circumstances of Dr. Tiller’s
death and respect for his family. But several lawyers confirmed that
the case, last litigated in 2006 when the anti-abortion groups tried to
appeal to the Supreme Court, could serve as a model for others.

“It’s very fact-intensive,” said Mahoney, from the National Abortion
Foundation. “It really depends on the particular circumstances. We
would say that people should not be allowed to threaten anyone for
providing legal medical services.” In addition to a private right to
sue, state attorneys general can also enforce the law within their

Some civil libertarians, however, have concerns. On “The Rachel
Maddow Show” Monday, George Washington University Law Professor
Jonathan Turley cautioned against prosecution or lawsuits against even
those who promote violence. “We have this difficult line to walk
between free speech and preventative law enforcement,” he said. “The
Supreme Court has said that violent speech is protected … and it is in
fact protected to say all abortion doctors should be killed.”

That’s not necessarily true under the FACE Act, however. The law
specifically targets whoever “by force or threat of force …
intentionally injures, intimidates or interferes with …” anyone who is
a provider of abortion services or a patient trying to access them.

That’s not to say that FACE is sufficient or its enforcement is
easy. “It’s penalties are significantly lower than many other federal
criminal statutes,” said Mahoney, who was involved in criminal
prosecutions under FACE in the justice department. The other
difficulty, she acknowledged, is the “delicate balance” between
protected speech and incitement to violence. While the law does make it
a crime to “intimidate or interfere” with provision of abortion
services, “there’s a lot of law about what’s a criminally actionable
threat” that makes intimidating statements difficult to prosecute.
“It’s not so much FACE as that whole body of law that’s the
difficulty,” said Mahoney.

Avoiding such politically charged difficulties may be why the
federal government appears in recent years to have avoided enforcing
the law altogether. The murder of George Tiller, apparently by a known
anti-abortion zealot, may begin to change the political equation.