The year 1993 was particularly violent for reproductive rights providers. Following a rising tide of anti-abortion rhetoric, former Ku Klux Klan member Michael Griffin in March shot Dr. David Gunn three times in the back outside an abortion clinic in Pensacola, Florida. He reportedly yelled, “Don’t kill any more babies,” before opening fire.
In August, anti-choice radicals attempted to murder Dr. George Tiller outside his clinic in Wichita, Kansas. They’d succeed in 2009. But before then, Tiller had been the target of Operation Rescue’s Summer of Mercy, a six-week wave of protests, in which thousands of anti-choice activists descended on Wichita, Kansas, blocking sidewalks and storming clinics. The event culminated in a political rally, where televangelist Pat Robertson preached.
“Those who stand for life are trying in no way to interfere with a woman’s reproductive rights or her sexual behavior,” Robertson told a crowd of approximately 25,000 activists pledging to make towns like Wichita “abortion-free.” “What we are trying to do is protect the lives of innocent human beings from the money-grubbing forceps of men who masquerade as men of medicine,” Robertson told the crowd. Two years later, Shelley Shannon, a member of the radical anti-choice group Army of God, would attempt to murder Tiller in the same city.
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The escalation in violence sparked Congress to pass the Freedom of Access to Clinics (FACE) Act in 1994. The FACE Act makes it a federal crime to use force, the threat of force, or physical obstruction to prevent individuals from obtaining or providing reproductive health-care services. The statute also provides for civil remedies for blocking access to abortion facilities, including fines against those found liable.
Yet last week Robert Lewis Dear Jr., who has a history of allegations of violence against women and has reportedly vandalized at least one clinic in the past, was arrested for holding hostage for more than five hours doctors, patients, and staff of a Planned Parenthood clinic in Colorado Springs. Three people were eventually killed; nine others were wounded. After his arrest, Dear allegedly said to police, “no more baby parts.”
Like in 1993, the Colorado Springs shooting follows a cascade of increasingly aggressive anti-choice rhetoric and actions. But unlike in 1993, there are laws in place designed to protect abortion clinic staff and patients from the kind of danger witnessed in Colorado. So what happened? What went wrong?
Tragically, nothing went “wrong.” The problem is that even with federal protections and the state-level policies that mirror them, we don’t have the law enforcement tools to end a culture of anti-choice violence.
The FACE Act protects protesters’ First Amendment right to free speech, but specifically prohibits threats against providers, patients, and staff. The line between a protected speech and a threat is not always clear to the courts, though. Clinic protesters remain free to sing hymns. They can pray. They can carry signs, walk picket lines, and distribute anti-abortion materials outside of clinics. None of those actions, however, can constitute a “true threat” to providers and patients.
But so much of extremist abortion opposition is grounded in beliefs like that expressed by Operation Rescue founder Randall Terry: “If you believe abortion is murder, then act like it.” With the Internet and other tools making it possible for anyone with a political opinion to shake their fist online, how can we—or the courts—discern what makes a “true threat”? The FACE Act provides some guidance, stating that if a “reasonable person” would believe the statement to be a threat, then the law should treat it as such. That’s as close as it gets to discerning when rhetoric crosses the line from inflammatory to threatening. And in a culture saturated with anti-choice language—including mainstream conservative presidential candidates like Sen. Ted Cruz (R-TX) willingly touting the endorsement of Operation Rescue President Troy Newman—how on earth can we create consensus on what is “reasonable”?
We can’t. And the radical elements of the anti-choice movement depend on that uncertainty.
“Anti-choice extremists have gotten legal advice and they know how to walk the line between what providers truly consider a threat and federal prosecutors think they can prosecute,” Vicki Saporta, president of the National Abortion Federation, the professional association of abortion providers in North America, told Rewire in an interview.
“Oftentimes we turn over threats and what providers perceive as threats and which they are very concerned about and then law enforcement says, ‘Well, that may not rise to the test of a true threat,” Saporta said. “That is a critical weakness because you cannot threaten people every day and get away with it and have it have no consequences.”
The FACE Act has, undoubtedly, helped push back against the wave of violence that took place in the mid-1990s. We have not, for example, had another Summer of Mercy, where tens of thousands of protesters overwhelm towns and blockade clinics. The law reaches only as far as the political will of whichever administration happens to be in place, though, since prosecution power for both civil and criminal actions lies with the Department of Justice. During the Bush administration, civil and criminal prosecutions under the FACE Act declined by more than 75 percent to an average of just two a year. Under the Obama administration, however, the department has prosecuted at least eight people annually under the statute, including Angel Dillard, an associate of Scott Roeder, who murdered Tiller in 2009.
But the FACE Act didn’t prevent Tiller’s murder either. In 2000, the FBI gave Roeder a warning after he glued shut the doors of a Kansas City clinic in violation of the act. Then, in 2007, Roeder posted on the Operation Rescue website that Tiller ran a “concentration camp.” On May 23, 2009, he was seen on a security camera again, gluing the doors at the same Kansas City clinic. On May 29, the day before he murdered Tiller, a clinic worker chased him away from Tiller’s clinic. The FBI was informed about both instances.
If law enforcement were able to more readily prosecute potentially violent speech and behavior as threats, noted Saporta, “they could de-escalate the vitriol … outside of clinics, and it would go a long way in terms of keeping the peace and having people understand that there are consequences to making what are in fact threats.”
Notably, the act of terror in Colorado followed months of increasingly aggressive anti-abortion arguments kicked off by the release of a series of heavily edited videos falsely suggesting Planned Parenthood was selling fetal “body parts” for profit. Mainstream conservative politicians, including Mike Huckabee, Ted Cruz, Donald Trump, and Carly Fiorina, picked up the videos and ran with them on the election trail. What followed was a steady uptick in targeted clinic violence. Still, rather than disavow the claims that Planned Parenthood is a “criminal operation” staffed by “butchers” that peddle in “baby parts,” conservatives have said, “So what?”
Normalizing danger to abortion providers in this way is one goal of the radical fringe of the anti-abortion movement. Attorneys for Scott Roeder, for example, expressly argued Roeder’s actions were justifiable homicide on the grounds that Tiller’s murder prevented further harm to “innocents.”
“It creates a climate where people think it is somehow justifiable to murder an abortion provider,” said Saporta.
“In many ways we have been lucky that things haven’t been much worse than they are, and they are bad enough,” Saporta continued. “It is not OK that abortion providers have to go to work in bulletproof vests and have to work behind bulletproof glass. Yet somehow we have accepted this is par for the course. It’s not.”
And this summer directly contradicts any notion that violent language and imagery does not lead to violent action. “In the 20 years that I have been at NAF, I have never seen the kind of escalation in hate speech, threats, and calls to action to harm abortion providers that we recorded in the wake of these false and misleading videotapes that were released in July,” Saporta said. “We became so concerned and alarmed that we immediately asked for a meeting with the Department of Justice’s Task Force on Violence Against Health Care Providers.”
Prior to that meeting in August, NAF and others had been turning over possible signs of danger to investigators. Saporta provided a recent example: “We uncovered a call to action. An individual posted on his Facebook page that people needed to burn abortion clinics to the ground, and that if you just burn down one you wouldn’t stop abortion. But if you burned them all down you could stop abortion and destroying property was not a sin. So he puts out this call to action, and in less than three months there are four arsons that take place.”
Investigators paid a visit to that individual, something he bragged about on his Facebook page, according to Saporta. No charges were ever filed.
“There needs to be more to hold a person responsible who is calling for the arson of every clinic or the murder of specific providers. We end up with a lot of threats and calls to action being made and then they have no consequences,” said Saporta.
“We have four decades of history of what’s going to happen when you encourage people to do harm to abortion providers,” she said.
According to an ex-wife, Dear had a history of targeting clinics and espousing anti-choice beliefs in addition to his record of alleged violence against women. Following the attack in Colorado Springs, a familiar meme emerged from conservatives: Dear was a deranged individual with no known connection to “legitimate” anti-abortion groups.
But does it matter if Dear attended Operation Rescue meetings or whether he was merely inspired by their rhetoric and fueled by a summer of anti-abortion propaganda in an election year? For the courts, yes. For providers and patients, the answer is clearly no.
Not surprisingly, the Roberts Court has not helped matters. In 2014, it struck most abortion clinic “buffer zones” in McCullen v. Coakley, ruling that protesters could gather closer to clinics and even approach patients, because such actions were protected by the First Amendment. Then, the Court waded this past summer into the question of when online speech constitutes a true threat in Elonis v. United States. That case involved Anthony Elonis, who was convicted in 2011 under federal law for posting a series of messages on his Facebook page as he was separating from his wife. Elonis defended the statements as constitutionally protected free speech, claiming the Facebook statements were not threats to harm his wife but instead rap lyrics. The legal question before the Court in Elonis was: At what point do violent and abusive online statements stop being considered a free speech right and instead become criminal speech? The Court sidestepped that question almost entirely, offering a narrow ruling that the jury had been wrongly instructed on the level of intent prosecutors needed to show in order to convict Elonis.
That means the question of what is and is not a “true threat” in the digital age remains an open one. And as more anti-choicers take to the digital sphere, the FACE Act remains woefully unable to address their language as potentially dangerous.
“They don’t just have to spread their hate among people they see face-to-face anymore, to people who show up to their meetings or their rallies or their demonstrations,” said Saporta. “Now with the Internet and social media they can spread this hate to millions of people and often now it’s not someone they actually know, like a Dear.”
In contrast to the steady drumbeat of anti-abortion sentiment, last week attorneys for Dear asked the court to impose a pre-trial gag order, cutting off media access to the case. The grounds for the motion was to protect Dear’s right to an impartial trial as a result of the reporting on his siege. The argument Dear’s attorneys made is that after months of increasingly violent rhetoric against abortion providers their client, who is accused of holding patients and providers at an abortion clinic hostage and killing three in the process, might not get a fair trial because the media has reported on Dear’s anti-choice past.
The trial court has not yet ruled on that motion.
If Dear’s attorneys are looking to close down coverage of the siege, abortion providers want to make sure patients know they can still access services. “Despite the fact that every single abortion clinic in the country is on a heightened state of alert right now, every single one of them is open and caring for women,” said Saporta.
Dear is likely to be charged by Colorado prosecutors during his next court appearance on December 9. Those charges could include first-degree murder, potentially resulting in a death sentence for Dear. The Department of Justice will decide on its own whether or not to charge Dear in federal court with a FACE Act violation. The evidence as presented so far seems to make that charge a no-brainer. Dear, according to authorities, espoused anti-abortion views, went to an abortion clinic armed, took the clinic patrons hostage, and killed three people. Those charges could happen while the State of Colorado’s case against Dear proceeds, or the Department of Justice could wait and bring its own case once Colorado’s concludes. The maximum penalty Dear faces under the FACE Act is life in prison.
With a murder charge likely in state court, a FACE Act charge from the Department of Justice would feel almost symbolic: There’s no upward sentencing enhancement. But should the department decline to do so, other violent anti-abortion radicals could see that as a green light to continue their patterns of threats.
There are additional avenues, too, through which law enforcement could address danger to providers and patients. In an eerie chain of events, hours before reports of the Colorado Springs shooting broke, the abortion rights advocacy group NARAL Pro-Choice America delivered a petition to the Department of Justice asking for it to treat the targeting of abortion providers as acts of domestic terrorism.
“Unfortunately, we could have predicted this attack,” said NARAL Pro-Choice America President Ilyse Hogue, in a call with reporters on Wednesday. According to Hogue, the recent abortion clinics attacks, including Colorado Springs, have been “politically motivated, narrow in target, but intended to scare a wide audience,” said Hogue.
“Even though there is one man who pulled the trigger [in Colorado Springs], there is a network of actors that created the culture of hate and violence that led to it,” Hogue continued.
Federal law defines domestic terrorism as acts “intended to intimidate or coerce a civilian population” and “to influence policy of a government by intimidation or coercion.” The Colorado shooting, and clinic violence more generally like the kind reported following the release of the CMP videos, clearly matches that description, according to Hogue.
Domestic terrorism is not in itself a crime, however. The statute does not provide prosecutors with any enhanced penalties for prosecuting acts of clinic violence as acts of domestic terror. That means designating acts of clinic violence as domestic terror doesn’t serve, right now at least, a law enforcement purpose. It doesn’t create a separate charge for prosecutors to pursue. Nor does it guarantee someone like Dear, should he be convicted, will face an enhanced sentence.
But just because defining abortion clinic violence would be largely rhetorical doesn’t mean it shouldn’t happen. Nor does it mean such a designation isn’t a necessary component of pushing additional legal protections for abortion providers. As Hogue explained on the press call, a key component of the request is “to reframe the way we talk about these atrocities in our society, and discourage others [who think their] actions will not be met with the level of seriousness deserved.”
It’s a sentiment Saporta reinforced. “More needs to be done to investigate people who are making threats and then holding them accountable,” said Saporta. “These threats are real and people are feeling threatened, yet law enforcement doesn’t feel it can prosecute these threats and the people making them know that and so they just escalate their behavior.”
There are reasons to think that, like in 1993, the federal government is responding to the crescendo of threats against abortion providers and patients, at least in part. Last month, the justice department announced the creation of a “domestic terrorism council,” an initial step in the department recognizing homegrown terror. It’s an important step, because where the department’s attention falls, federal dollars follow.
The Department of Justice already has the Task Force on Violence Against Health Care Providers, charged with coordinating federal prosecution of crimes that target reproductive health-care providers. Those laws include federal arson laws and firearm statutes, in addition to the FACE Act.
But so far there is no uniform method for agencies to address the situation, and federal courts are offering very little guidance. That means Colorado Springs presents an opportunity to provide additional protections for patients and providers: a kind of FACE Act reboot.
David Cohen, a professor at Drexel University’s Thomas R. Klein School of Law and the co-author of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism, suggested to Rewire in an email several improvements to the FACE Act that would more effectively protect abortion providers and patients. Among Cohen’s recommendations were higher penalties to reflect the fact that anti-choice organizations are often willing to pay fines associated with FACE Act violations by supporters. Cohen also suggested explicitly including stalking and harassing providers and patients within the definition of “intimidates” in FACE, and clarifying for the courts they should assess threats from the perspective of the average abortion provider rather than some hypothetical “reasonable person,” as is the standard now.
Cohen’s recommendations are not a huge leap from the current law. Implementing them would, under normal circumstances, be a matter of simple legislative amendment. Unfortunately, we exist in a political reality where conservatives in Congress voted for the umpteenth time to defund Planned Parenthood, less than a week following the Colorado rampage. And just keeping abortion clinics open at all has been a challenge for reproductive rights advocates following the wave of targeted regulations of abortion providers (TRAP) laws, like hospital admitting privileges requirements, that have swept states governed by anti-choice conservatives—advancing the argument that abortion is unsafe and clinics are dirty, despite all evidence to the contrary.
These are not normal circumstances, and change is not coming from our political leaders.
That leaves us in a Scylla and Charybdis situation, where reproductive rights advocates are tossed between conservative legislative and elective vitriol that results in mass clinic closures, Supreme Court interference, and outright fatal violence. Each are threats in and of themselves. And each contribute to an increasingly hostile sea for abortion providers and patients.
Right now, the only course of action is for abortion providers and patients to try and weather that storm. But as Colorado Springs made clear, that is a fatal demand we have no moral right to make.