The Two-Faced Abuse of the FACE Act

Unequal and Unjust Prosecution

The Biden administration had singled out these pro-life advocates for prosecution and prison for merely peacefully opposing abortions at abortion facilities. Yet, that same administration let violent acts against pro-life pregnancy centers and churches go uninvestigated, unpunished, and without justice.

Enacted in 1994, the FACE Act was signed by President Bill Clinton. The law prohibits the use of force, threats, or physical obstruction to interfere with individuals seeking reproductive health services or exercising their right to religious freedom at places of worship.

Instead of applying the FACE Act in a fair and impartial way, Biden’s DOJ had vigorously enforced the law against pro-life advocates while declining to do the same against individuals attacking pro-life pregnancy centers and churches. Under Biden, the DOJ brought criminal and civil cases against at least 50 individual pro-life advocates outside abortion facilities. Yet, since the Dobbs decision was leaked in May 2022, close to 100 pregnancy centers have been reportedly vandalized or victimized by violence, such as being spraypainted or firebombed. Biden’s DOJ only defended two of them under the FACE Act. In addition, the Family Research Council has identified 436 incidents of threats or violence against churches in 2023 alone, yet the Biden administration never initiated a single FACE Act prosecution to protect these houses of worship.

Usually, first-time offenders under the FACE Act can face up to a maximum 12 months in jail and a $15,000 fine. However, the Biden DOJ took the FACE Act one step further using it to justify adding additional “conspiracy against rights” felony charges against pro-life advocates.

Constitutional Concerns

These charges carry much harsher sentences of up to 10 years in prison even for nonviolent actions. This heavy-handed application of the law resulted in 89-year-old Eva Edl, a Soviet concentration camp survivor and one the 23 pro-life advocates pardoned by President Trump, to face a maximum 11 years in federal prison just for singing and praying from a wheelchair in front of an abortion facility.

The weaponization of FACE is not just the DOJ or federal prosecutors. FACE is also abused by state prosecutors. In 2018, Liberty Counsel successfully defended 13 pro-life sidewalk counselors who peacefully counseled women and preached the gospel on the public sidewalks outside an abortion facility. The State of New York sought an injunction under the FACE Act to censor and shut down their Christian and pro-life speech. However, a federal district judge denied the state’s request for an injunction citing the FACE Act did not apply due the counselors never acting in a threatening, violent, or intimidating way. The state later abandoned its case.

One criticism of the FACE Act is that it gives the federal government the power to overstep and prosecute actions that should be handled by state and local law enforcement. Since the Dobbs decision in 2022 ruled that abortion is not a constitutional right, the question arises if federal enforcement of an abortion-related law like the FACE Act is necessary, duplicative, or even legally justified.

Critics also argue that the FACE Act criminalizes peaceful protests and restricts free speech. The law’s overly broad language can be interpreted to mean that even peaceful actions, such as handing out pamphlets or trying to convince a woman to save her baby,could be interpreted as “intimidation” or “obstruction.” However, the First Amendment prohibits viewpoint discrimination and no government, whether federal, state, or local, can unequally apply laws to silence or intimidate those with opposing views. But with the recent targeting of pro-life advocates, and the possibility that same abuse will happen again under a future pro-abortion administration, the question remains whether the FACE Act can be consistently, equally, and fairly applied over time.

Several days before President Trump’s pardons, Rep. Chip Roy (R-Texas) introduced for the second time a bill in Congress to repeal the FACE Act. He first introduced the bill in 2023 after 20 FBI agents entered the home of now-acquitted pro-life advocate Mark Houck and arrested him at gunpoint in front of his family – even though Houck had previously communicated that he would turn himself in peacefully if he was to be charged with any crime. The new bill, H.R. 589, would eliminate any further prosecutions under the Act. Senator Mike Lee (R-UT) is expected to introduce the same legislation in the U.S. Senate.

Historically, the FACE Act has faced several constitutional challenges but has been upheld by the federal courts. To date, the U.S. Supreme Court has never agreed to review a FACE Act challenge, nor is there one on the horizon. However, any repeal or strike down of the law would leave demonstrators still subject to state and local laws regarding entrances to public places, such as buffer zone laws. Even so, the High Court last week rejected hearing the buffer zone case Coalition Life v. City of Carbondale, Illinois. Justice Clarence Thomas noted in his dissent that he would have accepted the case because he has noticed a disparity in how certain legal principles are applied differently when abortion is involved. Thomas’ dissent regretted a missed opportunity to better review First Amendment issues in the context of abortion.

Fundamentally About Abortion

Ironically, the DOJ has conveyed for some time that the FACE Act is not about abortion. In his recent dissent, Justice Thomas had something to say on the nature of abortion and the law. He quoted the late Justice Antonin Scalia noting that interpretations and enforcements of the law have “a way of changing when abortion is involved.”

The recent pardons of the 23 pro-life advocates reveal the enforcement of the FACE Act in recent years has been one of those times. The Biden administration certainly did not interpret it as a neutral law – as all laws should be interpreted. Conversely, the law had been weaponized to protect the abortion industry.

While the FACE Act was passed under the pretense of protecting health facilities, pro-life pregnancy centers, and churches, the recent and overwhelmingly enforcement focused on shielding abortion providers certainly did little to foster equal protection under the law for peaceful pro-life advocates. But by using this double standard enforcement approach, the Biden administration used the FACE Act to afford abortion providers special legal protection, suppress dissent against them, and punish those who opposed them.

Ultimately, the enforcement of the FACE Act has recently been all about abortion. This selective enforcement skewed in favor of abortion providers, while ignoring attacks on pregnancy resource centers and churches, suggests that the FACE Act can continue to be a tool for any future administration that wants to protect abortion.

Liberty Counsel Founder and Chairman Mat Staver said, “It is time to repeal the Freedom of Access to Clinic Entrances Act. The government should not be weaponized against pro-life speech.”