The History Behind This Abortion Law Reveals Who It Was Built To Target

The Department of Justice has released a report documenting how the Biden administration weaponized the Freedom of Access to Clinic Entrances (FACE) Act against pro-life Americans. More than 95% of its 882 pages are actual documentary evidence: emails and texts, memos, you name it. But even that does not tell the whole sordid story.

President Bill Clinton signed the FACE Act into law in May 1994. Attorney General Janet Reno told a Senate committee that it was needed to combat a nationwide campaign by pro-life activists to shut down abortion clinics through “blockades, sabotage … stalking … arson, bombings, and finally …murder.” One senator at that hearing accused pro-lifers of “terrorism.”xxxxx

Rahm Emanuel, Clinton’s political director in 1993, would later famously counsel not to let a crisis go to waste. The abortion zealots used the controversy over some activities to create a weapon they would aggressively use to target and suppress the entire pro-life movement. Here’s how they did it.

The first version of the FACE Act, introduced by then-Rep. Charles Schumer (D-NY) in February 1993, focused specifically on what the bill’s title said, protecting access to abortion clinics. It prohibited physical obstruction of facilities with the intent of preventing individuals from obtaining “reproductive health services.” It allowed civil suits only by private plaintiffs who had been concretely affected by such obstruction and did not permit punitive damages.

The House Judiciary Committee, without holding any hearing, began the process of radicalizing the Schumer bill. Physically obstructing a building became intimidating or interfering with any person or class of persons who were obtaining or providing reproductive health services. The bill neither defined intimidation nor interference nor limited where, how, or when it may have occurred. It allowed civil suits not only by anyone “aggrieved” by this undefined activity, but by any attorney general (federal or state) who believed that a “group of persons” had been so aggrieved. Oh, and the House Judiciary Committee added punitive damages to the plaintiffs’ arsenal.

Senator Edward Kennedy (D-MA) introduced the FACE Act in the Senate in March 1993, merging into this radicalizing traffic. His version even had language that would specifically exclude pro-life pregnancy centers from the act’s coverage. As if allowing both private and public plaintiffs to sue over being “aggrieved” was not vague enough, the Kennedy bill would allow suits whenever the attorney general believed that a person or group “is being, has been, or may be” aggrieved by pro-life activities. Before you ask, no, the bill put no time limit on a past grievance nor did it provide any way of determining whether or how a group “may be” aggrieved.

The FACE Act that Clinton signed into law bore no resemblance to the bill Schumer had first introduced, but, then, that was the plan all along. Put something – anything – in the legislative hopper that could be morphed and twisted into a weapon that is so vague, and carries such draconian potential penalties, that it can be used to target and suppress ordinary pro-life expression and activities.

The new DOJ report documents that abortion radicals got exactly what they wanted, detailing several ways in which the Biden administration weaponized the FACE Act. These include biased enforcement, collaboration with pro-abortion groups to track and monitor pro-life activity, blatant anti-religious bias by prosecutors, treating peaceful pro-life activists much more harshly than violent pro-abortion activists, and even helping funnel money to pro-abortion groups.

Weaponizing the FACE Act happened by design, not by chance. And to top it all off, Congress did not have authority to enact it in 1993 and certainly lacks any authority to maintain it now. Reno testified back then that the FACE Act was “crucial to ensuring that women have an unobstructed opportunity to choose whether or not to have an abortion.” The so-called “right to abortion,” in fact, is by far the most frequently cited basis for Congress’s authority to enact the FACE Act.

In 2022, however, the Supreme Court told us what we really knew all along, that the Constitution does not, and never did, confer any right to abortion. Congress has no authority to enforce a right that does not exist or to fashion weapons to suppress rights that do.

The FACE Act was an abuse of power when it was enacted, and the Justice Department has now documented the fruit of that poisonous tree. Congress should repeal this unconstitutional fraud.

* * *

Tom Jipping is a senior legal fellow at the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom Foundation.

Jonah Wendt is the communications director at Advancing American Freedom Foundation.