Are First Amendment-Protected Threats the Legal Consequences of Providing Abortion Care?

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Analysis Violence

Are First Amendment-Protected Threats the Legal Consequences of Providing Abortion Care?

Jessica Mason Pieklo

The close of the case against Angel Dillard for violating the FACE Act leaves the jury contemplating whether or not car bombs and stalking threats should be part of abortion providers' regular existence.

Angel Dillard’s trial came to a close Thursday evening, leaving the jury to consider whether the 2011 letter Dillard sent to Dr. Mila Means—stating that if she should start providing abortions in Wichita, Kansas, Means would be tracked by thousands of people across the county and maybe car bombed—was threatening enough to find Dillard liable for violating a federal law designed to protect abortion providers.

It shouldn’t be a difficult conclusion to come to. Dillard’s letter to Means came when Means was considering performing abortions and just after a of the assassination of one of the most visible abortion providers in the country. Dillard’s letter also happened in the tinderbox of Wichita, Kansas, the epicenter of radical anti-choice violence.

Even so, the case has given the jury a reason for pause. As we wait on its verdict decision, it’s worth noting how the defense attorneys on the last day of the trial attempted to stretch the bounds of the First Amendment for their own gain, since it’s a strategy we’ll likely see later this summer if and when the case brought by the National Abortion Federation against David Daleiden goes to trial.

For its part, the Department of Justice (DOJ) argued that Dillard “meant to scare [Means], and she did.”

“Dr. Means was getting ready to do something that got a man killed,” continued DOJ attorney Julie Abbate at the trial on Thursday. “She was stepping up to do something that no one else had since Dr. [George] Tiller was murdered,” referring to Means’ attempts to provide reproductive health-care services in the state. “And it was legal regardless of your views on abortion.”

Context, as Abbate went on to explain, is everything.

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Despite Dillard’s claims in earlier trial testimony that she wasn’t heavily involved in the anti-choice movement, Abbate meticulously unwound those claims in her closing argument. Within 33 days of Tiller’s murder Dillard had reached out to his killer, Scott Roeder, Abbate noted. Almost immediately after that first contact, Dillard started visiting Roeder in prison, eventually claiming she was “ministering” to him. They exchanged letters. She attended his trial. Dillard told an Associated Press reporter she admired Roeder because he was willing to sacrifice his own freedom to end legal abortion, Abbate reminded the jurors.

Abbate wasn’t close to finished though. At Roeder’s trial Dillard met Michael Bray, the radical anti-abortion activist and author of A Time to Kill, a book advocating for violence against abortion providers, including murder. Bray, who was previously convicted for possessing explosive devices related to abortion clinic bombings, introduced Dillard and Roeder. It was Bray who invited Dillard into the world of radical anti-choice violence.

And she readily accepted the invitation by writing to Means.

As Abbate summed up, Dillard “starts all in and she ends all in.”

“She wrote this letter because she wanted to write this letter,” Abbate continued. “She wanted to stop Means from providing abortions and she didn’t care how she did it.”

“She felt justified in what she did.”

“She’s not sorry [for writing the letter], not even now,” pressed Abbate. In fact, as Dillard testified, she’d write the letter again, but “maybe she’d consult a lawyer first”, Abbate summed up.

“She signed her name because that is who she is,” said Abbate. Dillard, Abbate pressed, is “a strong woman with a strong faith who is not backing down.”

Like Roeder, Abbate argued, Dillard “wanted to follow her convictions. She felt inspired and called by God to do this. And she wanted to do it, and because she wanted to do it she needs to be held accountable in this court of law, in man’s law,” Abbate finished.

Naturally, the Dillard defense team continued to try and downplay Dillard’s connections to the most radical fringe of the anti-abortion movement. Dillard doesn’t use the internet, her attorney Craig Shultz claimed, so the idea that she would know the activities of Bray, The Army of God, Paul Hill, or any of the radical anti-abortion activists is silly.

In fact, Shultz told the jury, he’s represented individuals who participated in clinic blockades. Those folks, Shultz argued, were real threats. Not like Dillard.

The real threat, the real terrorist in this case, Shultz argued, is the federal government. The real acts of violence are legal abortion, according to Dillard’s attorney.

“The Department of Justice wants to take you to a really dangerous place,” warned Dillard’s attorney. “This [court case] is the U.S. government shutting down speech they don’t agree with.”

Thanks to the federal government, Dillard is the true victim here, argued Shultz. Not only has she lost her First Amendment rights, she’s lost the right to speak truth on abortion politics in Wichita. “Angel writes a warning,” Shultz argued. “It’s not a warning of action. It’s a warning that these things are commonplace.”

“Abortion is the termination of life and there is ultimately pain,” continued Shultz. “Somehow that violence [of abortion], if you will, is okay, but the suggestion by Angel Dillard that [Means] will have horrific dreams is violence and not okay?” In case it wasn’t clear just how victimized Dillard imagines herself in this scenario, Shultz drove home the point for the jury.

“This agency, at this time, in 2011 wanted to pursue a FACE Act claim and they picked out Angel Dillard and this letter to do so.” Dillard, Shultz claimed, was part of the government’s “strategy” to stifle the abortion debate.

“This is indeed dangerous ground to which they want to take you,” said Shultz. “They want to be the arbitrator of what someone can and can’t say in the context of the abortion controversy.”

Whatever decision the jury ultimately comes to with regard to Dillard, the idea that, in a federal court in 2016, attorneys are not only arguing the First Amendment protects terrorists promising car bombs to try and push a doctor out of her practice, but are claiming it is their God-given right to do so, is chilling. And the idea that a jury just might buy it is more so.