Mark Houck was a devoted pro-life advocate for years. He would spend hours every week praying and engaging in sidewalk counseling. When an angry pro-abortion advocate became verbally abusive to his son, Mark intervened, and as a result of his decision to protect his son he was charged with a federal crime.
His story ended with a finding of not guilty by a jury in Philadelphia, but others have not been so fortunate. Several pro-life advocates were indicted and have now been convicted in federal court in just the past couple of weeks. Last year alone, some two dozen peaceful pro-life protesters were arrested and charged by the Justice Department.
The Freedom of Access to Clinic Entrances Act, also known as the FACE Act, has become a favorite tool of pro-abortion federal attorneys seeking to scare pro-life advocates and discourage participation in life-saving ministries.
What the FACE Act does
The FACE Act was signed by President Bill Clinton in May 1994 and prohibits “violent, threatening, damaging, and obstructive conduct intended to injure, intimidate, or interfere with or attempt to interfere with the right to seek, obtain, or provide reproductive health services.” This legislation was created by Congress with a specific intent to target anyone engaged in blocking access to abortion clinics, whether violently or nonviolently, and has now been used to intimidate or crack down on those who pray or conduct sidewalk counseling at abortion clinics.
The law has the potential to make otherwise legal activity in a public place illegal simply because of what occurs in a nearby building. Any time a new statute is created to criminalize otherwise legal behavior, we should be skeptical.
All the more concern should apply when a statute specifically targets certain types of behavior. If the concern were trespassing, laws already prohibit trespassing, and if the concern were assault or some type of disorderly conduct, there are laws and ordinances in place to address those obvious crimes. The FACE Act is different: this is a targeted federal statute directed at specific types of behavior at particular types of locations so that the federal government can target Christians who are trying to save the lives of the preborn.
Why a federal crime
What was the explanation for creating a federal statute to prohibit behaviors if those behaviors would already be prohibited by local and state law? The answer is that federal crimes fall under the jurisdiction of the Justice Department. Not only did this law create the potential for abuse, it has become a tool for pro-abortion Attorney General Merrick Garland to target Christians and religious groups, as well as otherwise discourage peaceful and lawful behavior.
Critically, pro-life groups that engage in thoughtful and appropriate sidewalk counseling are responsible for saving countless lives every year. One group known as End Abortion Now, launched as a ministry of Apologia Church, is responsible for saving the lives of thousands of preborn babies across the United States through their training and counseling ministries, which provide women considering abortion with information about adoption and other alternatives.
Much of this ministry occurs on the sidewalks outside of abortion mills. It is not unreasonable to conclude that pro-abortion groups, politicians, and prosecutors have recognized that well-trained and loving sidewalk counselors are an effective tool in the battle to save the lives of the preborn. The more effective the counselor or ministry group, like Mark Houck, the more likely they will be targeted by the Justice Department.
Potential for abuse
As written and intended, the FACE Act is vague enough to result in highly selective prosecution and remains questionable from a constitutional standpoint. Far worse is how the law is being used and abused to target political and religious speech.
Even a cursory reading of the act reveals how easy it is to use the vague language to criminalize peaceful and otherwise legal behavior. For example, what does it mean to “interfere” with someone who is seeking to enter an abortion clinic? Does lawfully standing and praying on a public sidewalk cause interference? Does handing out educational material about the size and characteristics of preborn children cause interference?
Interestingly, the intent of sidewalk prayer and counseling is to attempt to save lives by preventing the murder of the preborn. Due to the nature of federal law enforcement and how intensely political attorneys in some districts have become, it is not hard to see how and why there is the potential for abuse. Federal sentencing guidelines and the nature of federal indictments greatly increase the potential risk of jail time and sentencing that is far outside the norm for violations like simple trespassing or nuisance. As a result, peaceful counselors face the potential of eleven years in prison for exercising their constitutional rights to peacefully assemble on a public sidewalk, simply because their intent is to save innocent lives by encouraging individuals considering abortion to reconsider.
The potential for abuse is not hypothetical: after all, the Justice Department is plainly involved in selective enforcement by routinely failing to issue any indictments for the dozens of attacks on pro-life pregnancy centers after the leak of the Dobbs v. Jackson decision which overturned Roe v. Wade. The very few indictments that were issued following the formal decisions only came after public outcry and congressional hearings related to the failure of the Justice Department to take action.
Saving lives
Intent should matter in any criminal case. In the instance of most alleged violations of the FACE Act, the intent of the defendants is simple: they desire to save lives. In other contexts, we would applaud that motivation and even call it justification for criminal acts up to and including the taking of a life.
I am not advocating for violence against anyone in any industry, but if we look at the example of the recent FACE Act cases, we learn that the individuals involved did enter the clinic. The motivation for their actions was to save lives of the most innocent of our society. The defendants, who in some cases were more than seventy years old, only made the decision to enter the clinic after numerous whistleblower reports of the killing of children who survived the abortion process were ignored by law enforcement.
If we were to be consistent with the application of concepts related to the defense of life, prosecutors would recognize that actions such as peaceful protests do not have to be considered criminal or result in the possibility of over a decade in prison where the context is clear.
The solution
While it is possible that the current Supreme Court could strike down the FACE Act consistent with their recent religious liberty and free speech decisions, it may take years for the right case to be heard on appeal. Convicted defendants would be punished, potentially sitting in federal prison waiting for the court to act.
The federal legislative solution is simple in principle: Congress should repeal the FACE Act as soon as possible. Some Republicans recently launched efforts to repeal the law as the Biden administration targets pro-life advocates. Absent the proper support for repeal or a willingness of Congress to take action, the pro-life movement and state legislators should focus on passing bills of equal protection that recognize life at fertilization and clarify that the taking the life of a preborn child is a crime.
Not only would this honest and morally consistent change in language for the pro-life movement help save lives, it would strengthen the common law justification defense for peaceful sidewalk counselors. A peaceful sidewalk counselor wrongfully prosecuted in a state with laws that recognize a preborn child is a life that deserves protection would be able to argue that they were acting with the intent to save a life, and that state law would support such a conclusion.
This would significantly aid their ability to defend their actions in court by allowing them to argue their actions were justified, since they were done with the intent to protect the innocent. After all, it should not be a crime for anyone to peacefully attempt to save a life.