The House Judiciary Subcommittee on the Constitution and Limited Government held a hearing this week on how the Freedom of Access to Clinic Entrances Act, the “FACE Act,” became a weapon against peaceful pro-life Americans under the Biden administration. The Thomas More Society, which defended many of those unjustly prosecuted under the law, testified in favor of full repeal. The hearing is long overdue.
Paul Vaughn was up early, preparing for the day with his wife and their 11 children, when shouting and pounding shattered the quiet of a Tennessee morning. Before he understood what was happening, federal agents stormed his home, handcuffed him in front of his family, and took him away. His crime? Attending a peaceful pro-life gathering at an abortion facility, marked by prayer, hymn-singing, and cooperation with local police.
The Biden Department of Justice charged Vaughn with a misdemeanor violation of the FACE Act and stacked on the felony offense of “conspiracy against rights,” exposing him to ten years in federal prison, for praying.
He was not alone. In Pennsylvania, Mark Houck, a Catholic father of seven, was charged under the FACE Act after a confrontation with a clinic escort while counseling with his 12-year-old son. Our attorneys at Thomas More Society offered to bring Houck in voluntarily — which the DOJ refused — precisely to avoid what happened next. Sixteen agents in seven vehicles descended on the Houck home at dawn and arrested him in front of his wife and children. He was put through the ordeal of a trial, but the jury acquitted him of every charge.
The process was the punishment. And that was the point.
On April 14, the Department of Justice’s Weaponization Working Group confirmed what these families had lived through: prosecutorial decisions driven not by victims or law enforcement, but by outside abortion advocacy organizations.
The nearly 900-page report — drawn from more than 700,000 internal records — documents selective prosecution, coordination with abortion industry groups, and prosecutorial misconduct throughout Biden-era FACE Act enforcement. Among the findings was a 137-page dossier on pro-life individuals, including photographs of spouses and minor children, compiled by the National Abortion Federation and handed directly to government officials.
The disparities are stark: Biden’s DOJ sought sentences averaging 26.8 months for pro-life defendants, versus just 12.3 months for the handful of pro-abortion defendants charged — and despite widespread arson and vandalism targeting pregnancy centers and churches after Dobbs, brought not a single FACE Act case involving a house of worship, even though the law was written to protect them too.
Prosecutors even searched for ways to screen out Christian jurors and called pro-life beliefs “culty.” When one of my Thomas More Society colleagues spoke publicly about the government’s misconduct, prosecutors fumed about it. The report now vindicates every word.
The FACE Act made this possible. And it could happen again.
The FACE Act was enacted in 1994 in part to prohibit the use “of force, threat of force, or physical obstruction” that is intended to “injure, intimidate, or interfere with” persons seeking to obtain or provide “reproductive health services.”
The Act serves only to federalize local conduct, inviting the abuse of centralized federal government power. It is unconstitutional, both on its face and as enforced by the Biden DOJ.
Our Constitution leaves the “police powers” to the states. Although the Constitution grants the federal government no general police power, Congress claimed authority to pass the FACE Act under the Commerce Clause and under the Fourteenth Amendment, relying on Roe v. Wade and Planned Parenthood v. Casey.
In Dobbs v. Jackson Women’s Health Organization, however, the Supreme Court decisively overruled Roe and Casey, holding that abortion is not a right “protected by any constitutional provision, including the Due Process Clause of the Fourteenth Amendment.” That leaves the FACE Act hanging by the thinnest of threads: the Commerce Clause. Since the FACE Act was enacted, the Supreme Court has significantly refined its Commerce Clause jurisprudence.
It is now clear that Congress may not criminalize non-economic, intrastate conduct simply by invoking “interstate commerce.” The court has repeatedly held that Congress may regulate intrastate activity only when it is economic in nature and substantially affects interstate commerce. Peaceful sidewalk counseling, prayer, and nonviolent protest are not economic activity, nor do they substantially affect interstate commerce.
The FACE Act becomes even more dangerous when prosecutors combine a FACE Act misdemeanor charge with the felony offense of “conspiracy against rights,” as they did in Paul Vaughn’s case, openly disregarding the will of Congress. When Congress enacted FACE, it made an explicit and deliberate choice: a first-time offense involving exclusively nonviolent physical obstruction would be punished as a misdemeanor carrying a maximum sentence of “not more than six months.” That reflects Congress’s considered judgment about the seriousness of such conduct and draws a clear line between violent criminal behavior and peaceful, if controversial, protest.
By layering a felony conspiracy charge on top of the same conduct, prosecutors erase that line entirely. Nothing about the conduct changed; only the prosecutor’s charging decision to pursue crippling penalties. That maneuver is an end-run around Congress, and a statute that permits such punishment inflation at the discretion of prosecutors is far too dangerous to remain on the books.
This is not a hypothetical danger. Local law enforcement found that Paul Vaughn had committed no crime, but the federal government turned on him. Paul and his family endured years of investigation, prosecution, and relentless fear that a husband and father of 11 would be taken from them for a decade. He was convicted of a federal felony. Only a presidential pardon spared him.
President Trump thankfully pardoned Paul and 22 others convicted by Biden under the FACE Act, freeing most of them from federal prisons. Trump’s DOJ also dismissed pending cases, fired the prosecutors most responsible for the injustice, and restricted future enforcement to extraordinary circumstances. But pardons and firings, welcome as they are, cannot solve this permanently. A future administration could re-weaponize the FACE Act on day one. And even if it is enforced evenhandedly, it remains unconstitutional. Personnel changes don’t fix structural problems.
That is why we are encouraged that Congress is once again taking up the effort to repeal the FACE Act entirely. The families who lived through this abuse deserve accountability, not just the hope of a pardon from the next sympathetic president.
If our constitutional system of separation of powers is to be preserved, the FACE Act must be repealed.
