About FACE: Using Legal Tools to Protect Abortion Providers, Clinics and Their Patients

Two of the Center’s U.S. Legal Program fellows Rebecca Hart and Dana Sussman authored a post on the American Constitution Society blog on the Freedom of Access to Clinic Entrances Act (FACE) which was passed in 1994 to safeguard abortion providers and their patients from violence. Since the assassination of Dr. George Tiller, the importance of using legal tools, like FACE, to protect abortion providers, clinics, and their patients is crucial to their safety and further ensuring women’s access to safe and legal abortions.

About FACE: Using Legal Tools to Protect Abortion Providers, Clinics, and Their Patients

By Rebecca A. Hart &amp, Dana Sussman, Legal Fellows, U.S. Legal Program, Center for Reproductive Rights

The assassination of Dr. George Tiller on May 31, 2009 is a stark and frightening reminder of the constant threat of violence and harassment faced by doctors who provide abortions. Dr. Tiller’s death marks the first murder of an abortion provider since the 1998 murder of Dr. Bernard Slepian. In the 1990s, faced with escalating levels of violence and protest activity aimed at disrupting clinic services, Congress and the Department of Justice took significant steps to safeguard doctors and their patients, most notably through the passage of the Freedom of Access to Clinic Entrances Act (“FACE”) in 1994 and the creation of the National Task Force on Violence Against Reproductive Health Care providers in 1998. Since the 1990s, extreme clinic violence, in the form of blockades and physical attacks, has decreased. However, during the Bush administration, reports of other types of clinic harassment, like trespassing and vandalism, increased dramatically. And Dr. Tiller’s murder may indicate that extreme violence is, once again, on the rise.

FACE was passed in direct response to several extreme acts of violence against abortion providers and anti-abortion protest activity aimed at disrupting clinic services. The Act gave the federal government a new tool for investigating and prosecuting abortion-related violence and disruptions by establishing federal criminal penalties and civil remedies for “certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services.” FACE also prohibits the damage or destruction of property that belongs to a reproductive health care facility. During the Clinton administration, Attorney General Janet Reno vested the Department of Justice’s Civil Rights Division with the federal government’s civil and criminal enforcement authority to bring cases under FACE and other federal statutes that can be applied to abortion clinic violence.

The Department of Justice remained active during the Clinton administration in implementing FACE by coordinating a federal law enforcement response, by bringing litigation to protect access to clinics and to protect clinic workers and physicians [1], and by creating National Task Force on Violence Against Reproductive Health Care Providers in 1998 following Dr. Slepian’s murder. Between its enactment in 1994 and 1998, a total of 46 criminal and civil cases were brought under FACE. In 15 of the 17 criminal cases brought during this time period, defendants pled guilty or were found guilty of FACE violations.

According to the National Abortion Federation, reported incidents of violence and harassment against abortion providers increased dramatically in the United States during the Bush Administration. For instance, attempted arson, invasions, vandalism, trespassing, and anthrax threats all increased between 2000 and 2008. Department of Justice statistics, however, indicate that the Bush administration brought approximately two criminal prosecutions per year under FACE, and never more than four in any single year. This represents a 75 percent decrease in the number of criminal prosecutions under FACE during the Bush administration. In fact, the Bush administration never used the civil component of FACE which allows the Attorney General to seek an injunction and compensatory damages if the Attorney General “has reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation of” FACE.

It is important to note that while harassment of abortion clinics, providers, and patients increased during the Bush administration, the more extreme forms of violence declined. Since the election of a pro-choice president, however, clinics have reported an escalation in these more extreme forms of violence and harassment, including physical threats and intimidation. Attorney General Eric Holder has taken important steps in the right direction, including launching a federal investigation into Dr. Tiller’s assassination and reinvigorating the National Task Force on Violence Against Reproductive Health Care Providers. FACE is an essential tool-indeed, the only federal legislation in existence-to protect women’s ability to access their constitutional right to abortion in this increasingly hostile environment.

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[1] For example, in August 1994, following two murders outside an abortion clinic in Florida, the Attorney General formed a federal task force to investigate the possible existence of a national conspiracy against reproductive health care providers and to coordinate federal enforcement activities. In 1997, the Acting Assistant Attorney General for Civil Rights formed the Abortion Violence Working Group to promote communication and coordination among federal law enforcement and agencies involved in investigating and prosecution abortion violence cases.