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Time to FACE Facts About DOJ’s Abusive Abortion Prosecutions

The Free Access to Clinic Entrances (FACE) Act is being used to silence abortion foes.

by
Hans von Spakovsky and Travis LaCouter

Bio

February 23, 2012 - 12:00 am

Evidence that the Holder Justice Department is driven by left-wing ideology, not objective law enforcement considerations, keeps piling up. Just ask the federal court in Florida that recently dismissed another abusive prosecution filed by the zealots who populate the Special Litigation Section of the Justice Department’s Civil Rights Division.

Last year, a federal judge in Kansas also refused to grant DOJ’s request for an injunction against another pro-life activist. Not only do the charges filed against peaceful pro-life activists by a politicized Justice Department reek of ideological pugnacity, they do not stand up to legal scrutiny.

These cases were filed under the Freedom of Access to Clinic Entrances (FACE) Act, which forbids physical obstruction, intimidation, or the use or threat of force outside of abortion clinics. But the statute specifically protects the right of “expressive conduct,” including peaceful demonstrations. The judge in the Florida case noted the shocking absence of any evidentiary grounds for the prosecution, or even the applicability of the FACE Act, exposing the bald partisanship of this Justice Department.

The case involved Mary Susan Pine, a woman who for more than 20 years has engaged in peaceful sidewalk counseling for women seeking abortions in West Palm Beach. While engaging in this ministry, Ms. Pine was notified by police that she had violated city and state traffic laws on one particular day. DOJ officials decided that Pine had run afoul of the FACE Act and brought charges against her.

Judge Kenneth Ryskamp was left to wonder at the near-total lack of evidence offered by the prosecution. The government was unable to show that Pine had in fact violated any provision of the FACE Act; prosecutors had no evidence that she had injured, intimidated, or interfered with the people she spoke to on a public sidewalk. It was not even clear that the people she was talking to were entering the abortion clinic.

In fact, as a routine business practice, the abortion clinic keeps a video surveillance record of its driveways and entrances. Those videotapes would have shown whether Pine was actually interfering with or obstructing any customers, but the clinic destroyed the tapes. Its sign-in sheets, which would have had the names of potential witnesses who went into the clinic the day Pine was there, were also destroyed.

DOJ lawyers apparently thought the case heinous enough to meet with the president of the abortion clinic the day after the incident. But they conceded that at no time during this meeting or after did they ask the clinic for the tapes or the sign-in sheets. Accordingly, DOJ entirely failed to obtain what the judge called “potentially critical evidence.”

This “negligent, and perhaps even grossly negligent” behavior by the DOJ lawyers led the judge to wonder whether the legal action against Ms. Pine was in fact the “product of a concerted effort between the government and the [abortion clinic], which began well before the date of the incident at issue, to quell Ms. Pine’s activities” rather than enforce the statute.  In other words, the judge believed that Ms. Pine may have been targeted for her political beliefs. “The Court is at a loss as to why the Government chose to prosecute this particular case in the first place,” Ryskamp wrote at the conclusion of his ruling.

Angel Dillard, a 44-year old woman from Valley Center, Kansas, was also slapped with a FACE charge by the Justice Department after she sent a very strongly worded letter to a Wichita doctor who was planning to start performing abortions at her clinic. Dillard’s letter was perhaps overzealous and starkly outlined the problems the doctor would encounter in the community, but Dillard said that she would pray that the doctor would make “the right choice” so that God would not bring judgment on her. The district court judge determined that Dillard was presenting a “religious argument” and that her statements were insufficient “to create any belief by a reasonable recipient that the writer was threatening violence.”

Kansas District Judge J. Thomas Marten refused to issue an injunction against Dillard, pointing out that to prove a violation of the FACE Act, the government would at least have to prove that Dillard’s letter could be reasonably understood as a “serious expression of an intent to commit an act” of violence against the doctor. With “no direct evidence” of any real plot by Ms. Dillard, suspicions against her remained “purely speculative.”

Judge Marten reminded the government of the foundational importance of free speech: “the First Amendment is the absolute bedrock of this country’s freedom and I think the ability to express an opinion on a topic that is important to one – even if it is controversial – has to be protected.” The DOJ responded that it was “obviously disappointed” with this idea. The Civil Rights Division does not seem to think that the First Amendment applies to those who speak out against abortion.

The FACE Act is intended to prevent violence. But even the National Abortion Federation acknowledges that the law doesn’t override protestors’ right to free expression, whether they are pro-life or pro-abortion. Both Ms. Dillard and Ms. Pine were prosecuted for exercising their First Amendment right when an ideologically-driven Justice Department wrongly prosecuted them under federal law.

The worst of it is that these are not isolated cases. The Division is pursuing another FACE Act prosecution of Richard Retta, a 79-year-old grandfather, for merely talking to women outside of an abortion clinic in the District of Columbia. That case is just as legally indefensible.

Unsurprisingly, the same DOJ enforcers are behind all three cases; Assistant Attorney General for Civil Rights Thomas E. Perez and the Deputy Chief for the hyper-politicized Special Litigation Section Julie K. Abbate, are both among the attorneys spearheading litigation against Pine, Dillard, and Retta.

The only violence being done in these cases is to the rule of law, the First Amendment, and the right of the people to be free from an abusive and out-of-control Justice Department. Peaceful protesters shouldn’t be victimized by lawyers who use their power to impose their misguided ideology on an unsuspecting nation.

Hans von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former lawyer in the Civil Rights Division of the Justice Department. Travis LaCouter is a member of the Young Leaders Program at The Heritage Foundation.
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