by Countable | 5.27.19
On May 26, 1994, President Bill Clinton signed the Freedom of Access to Clinic Entrances (FACE) Act into law, placing restrictions on protests outside of clinics where abortions are performed and outside places of worship.
From 1977 through the early 1990s, there was an escalation of violence against facilities that provided abortions, which were targeted by protesters through arson, bombings, and other acts of vandalism to deter access by staff and patients. Clinic staff at abortion facilities faced threats of physical violence and stalking, while arriving patients were impeded and intimidated by picket lines of protesters at clinic entrances.
The violence reached a peak in 1993 when Dr. David Gunn, whose practice included abortions, was murdered outside of his clinic and another man was convicted for the attempted murder of Dr. George Tiller.
Introduced by Sen. Ted Kennedy (D-MA), the Freedom of Access to Clinic Entrances (FACE) Act prohibited and established penalties for “certain violent, threatening, obstructive and destructive conduct” outside of reproductive healthcare clinics (and also places of religious worship), including:
The bill also included a provision expressly protecting peaceful picketing and demonstrations that's protected under the First Amendment. Still, it faced bipartisan criticism in Congress out of concerns that the definitions of harassment-related offenses were too ambiguous and their enforcement could infringe on the protesters’ First Amendment right to expression.
"This bill is designed to eliminate violence and coercion. It is not a strike against the First Amendment. Far from it, it ensures that all citizens have the opportunity to exercise all their constitutional rights, including their privacy rights under the Constitution…
What happened to the father of Wendy and David Gunn should not have happened. The shooting attack that wounded Dr. George Tiller in Wichita, Kansas, should not have happened. Now with this legislation we will have a law with teeth to deal with those who take part in these unlawful activities, who put themselves above and beyond the law. Because of the violence it will curb, the lives and property it will protect, and the constitutional rights of women it will uphold, the Freedom of Access to Clinic Entrances Act becomes law today."
Before 1994 ended there were four more murders of abortion providers across the U.S. and three more occurred in 1997-98. The FACE Act was used to enhance the perpetrator’s sentence.
Since 1998 there have been four abortion-related murders: Dr. George Tiller at his church in Wichita, Kansas in 2009; and Officer Garrett Swasey, Jennifer Markovsky, and Ke’Arre Stewart at a Planned Parenthood clinic in Colorado Springs, Colorado in 2015.
The FACE Act’s constitutionality hasn’t come under scrutiny in federal court since its enactment. However, an analogous law enacted in 2000 by the Commonwealth of Massachusetts which included a 30-foot buffer zone around clinics where abortions are provided has come under scrutiny by the U.S. Supreme Court.
In 2014, the Massachusetts law was struck down by the Supreme Court unanimously in McCullen v. Coakley , reversing an appeals court decision. The majority opinion, authored by Chief Justice John Roberts and joined by the Court’s four liberal justices found that:
“The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests… Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks ― sites that have hosted about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers... It has done so without seriously addressing the problem through alternatives that leave the forum open for time-honored purposes.”
The four other conservative justices, including Justices Antonin Scalia and Anthony Kennedy, wrote concurring opinions that went further than the majority which also found the Massachusetts law's unconstitutional because it was a content-based restriction on speech and discriminated against the viewpoints of abortion opponents while allowing clinic workers to express their views.
— Eric Revell
(Photo Credit: Fibonacci Blue via Wikimedia / Creative Commons)
Written by Countable