Last week, a judge ruled that defendants on trial in Washington, D.C., this month for obstructing access to an abortion facility in 2020 cannot claim as their defense that they were acting to protect others from bodily harm.
“A defendant may not don a vigilante’s hood to insert themselves into a situation of their own making and subsequently claim defense of a third person to justify their actions,” U.S. District Judge Colleen Kollar-Kotelly wrote in a three-page order.
But is the idea that abortion ends the life of another human being “a situation of [a defendant’s] own making”? Or is it a fact? That’s a question Louis C. K. surprisingly explored in his Netflix special “2017,” when he made viral comments about the extreme tactics pro-life activists sometimes use to convince expectant mothers not to pursue the procedure.
“They think babies are being murdered,” he explained in the show’s opening. “What are they supposed to be like? ‘Uh, that’s not cool. I don’t wanna be a dick about it, though. I don’t want to ruin their day as they murder several babies all the time.’”
It’s in that spirit that 10 pro-life activists entered an abortion facility in D.C. in 2020 and, in the words of the Department of Justice (DOJ), “forcefully entered the clinic and set about blockading two clinic doors using their bodies, furniture, chains and ropes.” Accompanying Lauren Handy, the lead defendant in the case, the other nine include Jonathan Darnel of Virginia, Herb Geraghty of Pennsylvania, Jay Smith and John Hinshaw of New York, Paulette Harlow and Jean Marshall of Massachusetts, Heather Idoni and William Goodman of Wisconsin, and Joan Bell of New Jersey.
Nine of those defendants now face a two-count federal indictment. (Smith, under pressure from federal investigators, accepted a plea deal and received a 10-month sentence.) Charged with conspiracy against federal civil rights, as well as violation of the Freedom of Access to Clinic Entrances (FACE) Act, the defendants each face up to a maximum of 11 years in prison, three years of supervised release, and fines of up to $350,000.
The question of whether the nine are guilty hinges, of course, on one’s answer to Louis C. K.’s question: Does abortion actually end a child’s life? The judge has already signaled her opinion, suggesting the defendants’ behavior constitutes vigilantism imposed onto narratives of their own creation.
Does the Punishment Fit the Crime?
But the judge’s conclusion, whether true or false, raises more questions. For example, even if one agrees with her that there’s no “third person” in need of defense in abortions — a contention which the defendants fiercely dispute — does the punishment fit the so-called crime?
Eleven years is a long time. In previous years, pro-life activists convicted of similar behavior have often received one-, three-, and six-month sentences, avoiding longer sentences on the technicality that they have not blocked entrances to the facilities, which the FACE Act specifically prohibits. Father Fidelis Moscinski, for example, is currently finishing a three-month sentence in Nassau County for entering an abortion facility on Long Island and providing roses and counsel for expectant mothers.
By the standard of Moscinski’s current sentence (and the fact that no one’s been seriously injured by the defendants’ actions), 11 years seems extreme. But it’s becoming increasingly clear that through the application of the FACE Act, disproportion and immoderation are par for the course for a DOJ that’s excessively punitive toward pro-life Americans.
At the same time, the FACE Act should also theoretically protect pro-life pregnancy centers and their providers. Yet it has seldom been used by the current administration for those purposes — a charge which has led some to question whether the DOJ is “abusing the FACE Act to silence pro-life advocates.”
Rep. Chip Roy of Texas is one such questioner. “In 2022, the FACE Act was used more than two dozen times against pro-life activists including Mark Houck, Father Fidelis Moscinski, Lauren Handy, Herb Geraghty, and a Holocaust survivor,” he wrote in March 2023 in a letter signed by a handful of other lawmakers. “Prior to this year, the FACE Act had never been used to indict individuals related to an attack on a pro-life pregnancy center or house of worship.”
Roy also noted that the DOJ charged at least 26 pro-life Americans in 2022 with FACE Act violations, and zero pro-abortion activists, even though at least 88 pro-life resource centers and groups have been attacked since May 2022, according to Catholic Vote’s tracker, in connection with the “summer of rage.”
Such imbalances notwithstanding, the defendants in United States of America v. Lauren Handy, et al. remain optimistic, even seeing a potential sentence as part of their mission. “From Handy’s point of view, her incarcerations are not an interruption of her rescue work but a continuation of it,” Leah Libresco Sargeant wrote in a beautiful essay in June.
Others point out that a potential sentence, while perhaps unjust, can raise awareness. “This trial is in fact about the due process and equal protection rights of human persons living in the womb,” Goodman, one of the defendants, told me via email. “We are honored to bring their voices to the federal courts and fight this administration’s conspiracy of silence against our helpless sisters and brothers. If the judge ignores the babies and sends us to prison, we will continue our mission to be a voice for the voiceless.”
But still, he maintains, they shouldn’t have to. “Ours were not the actions of ‘extremists,’” he pointed out. “Rather, we chose an ordinary, proportionate response to a human life who is in immediate danger.”
Until Americans contend seriously with the question Louis C. K. raised — however irreverently he raised it — judges will have discretion to punish activists who peacefully protest an industry the FACE Act protects, even while applying the law lopsidedly. In the meantime, the outcome of the current case will signal to what extent pro-life defendants will be punished for protesting what they see as an unjust law that violates the most vulnerable, helpless victims.
“Draconian federal punishments like these against peaceful Americans have not been used since members of the underground railroad worked to free innocent people from bondage and were thus charged under the enormously unjust Fugitive Slave Act,” Goodman said. “The FACE Act is a similar tool of legal injustice instrumentalized to protect violence and those who perpetrate it.”