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The FACE Act Is Unconstitutional. It’s Past Time Congress Got Rid Of It

Both in its application and on its face, the FACE Act is an abuse of power by bureaucrats increasingly hostile to political dissidents.

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Just this year, the Department of Justice under Attorney General Merrick Garland, a Biden appointee, has announced indictments of 22 peaceful pro-life protesters, trumping up bogus charges based on the Freedom of Access to Clinic Entrances (FACE) Act. At best, that law creates duplicative protections against crimes that are already prosecutable under state and local criminal statutes. At worst, it is a weapon for federal law enforcement to unconstitutionally brandish against its political dissidents.

Right now, it has become the latter. It’s past time for Congress to repeal the FACE Act and do away with the reckless, state-sponsored terrorizing of innocent Americans that the law enables.

Provisions of the FACE Act

Passed in 1994, the FACE Act criminalizes anyone who:

…by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services…

It’s worth noting that the phrase “reproductive health services” does not single out abortion facilities, but legally includes pro-life pregnancy centers. The DOJ, however, has yet to announce a single indictment for the dozens of attacks on pregnancy centers that followed the leak of the Supreme Court’s Dobbs v. Jackson decision that overturned Roe v. Wade.

The statute also criminalizes the same behavior toward “any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship,” and criminalizes intentional damage or destruction to a place of worship or pregnancy-related facility because of the facility’s purpose.

Denial of First and 14th Amendment Rights

On its face, none of the statute’s provisions may seem objectionable (though, as experience has shown, “intimidate” and “interfere” are interpreted well outside their stated definitions). But even properly applied, the law would invite unnecessary and political intervention by federal authorities into situations that could be effectively handled by local authorities.

In more sinister hands, the FACE Act is used to tyrannize law-abiding abortion opponents. Recently, it’s been invoked to send dozens of armed FBI agents to raid the home of pro-life Catholic father Mark Houck and arrest him in front of his wife and children. His crime? After a Planned Parenthood escort repeatedly harassed his young son and ignored Houck’s demands that he stop, Houck’s wife says, he pushed the man away from his child. Legal documents even indicate the action had nothing to do with the facility’s provision of abortions, making the FACE Act inapplicable, but the politicized DOJ has used it to terrorize Houck’s family anyway.

While the FACE Act has teed up left-wing bureaucrats to target pro-lifers, the DOJ has denied equal protection of the laws to pro-life pregnancy clinics, in violation of the 14th Amendment. By refusing to apply the law to protect pregnancy centers (as well as churches) from dozens of instances of arson, vandalism, and threats, the federal government has violated Americans’ 14th Amendment rights in its application of the FACE Act.

The application of the FACE Act has also targeted Americans for their peaceful assembly and speech, two of the most foundational freedoms protected by the First Amendment. Recently, the DOJ indicted 11 peaceful protesters who lined the hallway of a building outside the door of an abortionist’s office to pray, sing, and petition.

These targeted prosecutions aren’t novel under the Biden administration, either. President Barack Obama’s Justice Department used the FACE Act to go after several pro-lifers, including a 79-year-old Maryland man whom the DOJ sued for walking alongside a woman on her way up to an abortion facility and peacefully stepping in front of her as he spoke to her. (“It is admitted that the woman got into the clinic without incident,” his legal defense noted.) In targeting peaceful speech and assembly, the Department of Justice has a long and pervasive history of using the FACE Act to violate Americans’ constitutional rights.

An Abuse of the Commerce Clause

The law is also unconstitutional on its face. When its constitutionality has been challenged in court, the FACE Act’s defenders typically cite the Commerce Clause of the U.S. Constitution to justify Congress’s authority to pass a law dealing with crimes that could be (and often are) prosecuted at the local level. The Commerce Clause allows Congress:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That brief phrase hardly seems to empower the federal government to target pro-life protesters at abortion facilities. The courts have historically inflated the meaning of the Commerce Clause by monstrous proportions, to the point that, in U.S. v. Lopez in 1995, the government argued that the “authority to regulate firearms in local schools … fell under the Commerce Clause on grounds that possession of a firearm in a school zone would lead to violent crime, thereby affecting general economic conditions.” In its decision, the Supreme Court ruled against that argument, attempting to limit congressional commerce power to the regulation of “the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce.”

Some courts have argued that the FACE Act applies to actions in the third category. As the Seventh Circuit coldly put it, “Congress found that obstructing access to abortion clinics decreases the number of abortions performed and therefore negatively impacts interstate commerce.”

To an observer whose basic understanding of the Constitution hasn’t been marred by the onslaught of vacuous and rambling attempts to inflate it, this is obviously an illegitimate use of Congress’s commerce power. In its decision in Hoffman v. Hunt, the U.S. District Court for the Western District of North Carolina observed that the Commerce Clause:

…has generated an inordinate number of judicial decisions because some courts fail to appreciate that our national government is one of limited and enumerated powers rather than an all powerful national government with jurisdiction to manage and regulate the general affairs of its citizens.

“The notion that Congress can enact FACE because the activities of protestors result in fewer abortions as well as less interstate movement of people and goods is really straining at gnats,” the court continued. “In fact, FACE is not aimed at the commercial activity of abortion clinics. It is aimed at the basic freedom of individuals to engage in civil protest.”

While that decision was subsequently overturned and is no longer legally binding, it accurately points out the flaws in the reasoning behind the FACE Act’s passage.

A ‘State and Local Problem’

Adding to the evidence that Congress overstepped its authority by passing the FACE Act is the fact that state and local laws criminalizing assault, threats of injury, disorderly conduct, and trespassing (to name a few) already exist. “Everything that might be covered of legitimate illegality under the FACE Act is already illegal in all 50 states, under state law,” noted former Acting Department of Homeland Security Secretary Ken Cuccinelli during a panel discussion at the Heritage Foundation on Friday. “This act was passed to undertake federal elected officials’ favorite thing: look busy … and to bring the kind of intimidation power [that is] always asymmetrical.”

“This is a state and local problem and should be returned to the states,” added Thomas More Society Executive Vice President Andrew Bath.

Both in its application and on its face, the FACE Act is an abuse of power by aggressive bureaucrats increasingly hostile to the views and existence of political dissidents. It is an unconstitutional threat to the Americans whom the Justice Department once existed to protect. And Congress needs to get rid of it.


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