‘One of the Greatest Ironies in the Universe’: Will Don Lemon Overturn the Central Law Defending Abortion Clinics?

Former CNN host Don Lemon did something unusual Friday—he asked a court to invalidate part of a major law that protects abortion clinics.

That’s right, the left-leaning opponent of President Donald Trump is aiming to overturn part of the Freedom of Access to Clinic Entrances Act, the notorious FACE Act that abortion activist groups urged the Justice Department under President Joe Biden to weaponize against pro-life protesters. Lemon is only challenging the law’s protections for churches, not abortion clinics, but if a court sides with him, that ruling could in turn undermine the entire law, one legal expert says.

If the motion succeeds, “it would be one of the greatest ironies of the universe that it was Don Lemon that was responsible for invalidating the very law that was put in place to protect abortion clinics in this country,” Jeremy Dys, senior counsel at First Liberty Institute, told the Daily Signal in an interview Monday.

“I’m surprised that he would want to inflict that damage to a law that has protected abortion clinics around the country,” Dys remarked.

Why Target the FACE Act?

Lemon hasn’t switched sides on the abortion issue. He isn’t seeking to strike down the FACE Act’s first section, which protects abortion clinics.

He’s only challenging the constitutionality of the FACE Act’s second section, which imposes criminal penalties against those who “by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes with… any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.”

Lemon is challenging the law because he faces charges for violating it. A federal grand jury indicted Lemon, along with 37 others, for invading a church in St. Paul, Minnesota, on Jan. 18. The agitators, who said they targeted the church because one of its pastors works for Immigration and Customs Enforcement, allegedly stood up in the middle of a service, refused to leave when asked, blocked members of the congregation from getting to their children, and chanted, “Who shut this down? We shut this down!”

Lemon has pleaded not guilty to the charges.

Lemon, represented by Abbe Lowell, filed a motion Friday to dismiss the indictment for “statutory and constitutional deficiencies.”

“Section 248(a)(2) is an invalid exercise of Congress’s power under the Commerce Clause because the regulated conduct is intrastate, non-economic, and lacks any non-attenuated nexus to interstate commerce,” the motion states.

The motion cites U.S. v. Dinwiddie, 1996, in which an appeals court upheld the FACE Act’s first section as part of Congress’ regulation of interstate commerce, but it argues that “the regulation of religious obstruction is not inherently economic.”

Deconstructing Don Lemon’s Argument

Dys, however, suggested Lemon’s argument is extremely weak.

“Don Lemon has long pretended to be a journalist and now he’s pretending to be a constitutional scholar,” the First Liberty lawyer said.

“The FACE Act is very strategically targeted to conduct, not expression,” he noted. “What the federal government is alleging here is that Don Lemon and his cronies work together not to express an idea or report on a developing situation, but to intimidate people who were exercising their First Amendment rights.”

“They engage in criminal activity by trespassing in a facility into which they were no longer entitled to be once they were asked to leave,” Dys noted. “They purposely stuck a microphone in the face of people who were trying to engage in religious worship, to intimidate them as a means of hindering their religious expression there. They stood between them and their children, preventing their freedom of bodily movement to egress the facility.”

As for interstate commerce, Dys noted that Lemon, who lives in the New York City area, crossed state borders to travel to Minnesota, where he filmed the church invasion for his YouTube podcast, aiming to reach a national audience.

The First Liberty lawyer also insisted that if the court invalidates Section 2, that ruling “will extend to the entire act, because the court has interpreted it, since its inception, as one act, so it’s impossible to segment out surgically the one section [Lemon] dislikes.”

Republicans joined Democrats to pass the FACE Act in 1994 in large part because the bill included provisions to protect houses of worship, in addition to abortion clinics.

Don Lemon’s Irony

Dys said that Lemon “either wants to get rid of everything and be the hero of the far Right that wants to overturn the FACE Act, or he wants to be self-serving and get rid of that one small portion that doesn’t suit his own purposes, and leave people gathering in houses of worship completely unprotected from the intimidating efforts by him and his colleagues that trespassed that day in Minnesota.”

Either way, the former CNN host is “the only one I’ve seen on the Left advocating for the overthrow of the FACE Act,” the First Liberty lawyer added.

The Daily Signal reached out to the office of Lemon’s attorney for comment and did not receive a response by publication time.