Freedom of Access to Clinics Entrances Act (FACE)

Mathieu Deflem
www.mathieudeflem.net
&
Brian Hudak
University of South Carolina

This is an online copy of a print publication in Encyclopedia of American Civil Rights and Liberties, edited by Otis H. Stephens, Jr., John M. Scheb II, and Kara E. Stooksbury. Westport, CT: Greenwood Press, 2006.

Cite as: Deflem, Mathieu, and Brian Hudak. 2006. "Freedom of Access to Clinics Entrances Act (FACE)." Pp. 407-408 in Encyclopedia of American Civil Rights and Liberties, edited by Otis H. Stephens, Jr., John M. Scheb II, and Kara E. Stooksbury. Westport, CT: Greenwood Press.



The Freedom of Access to Clinics Entrances Act (FACE) is a federal statute that was enacted in 1994 to prohibit the intimidation or interference, by force or threat of force or by use of physical obstruction or intentional injury, of anyone who is obtaining or providing reproductive health services and of anyone seeking to exercise first amendment rights or religious freedoms at a place of worship. With respect to reproductive health services, the location of the prohibited conduct applies to clinics that provide abortion services as well as to those that counsel alternatives to abortion. The Attorney General of the United States as well as any person offended under the FACE statute can bring civil action for relief, including injunctive relief and compensatory and punitive damages.

Discussions on laws regulating abortion protest mounted after individuals and groups associated with the abortion protest movement had begun resorting to more intrusive and extreme methods, such as obstructing clinics, vandalizing property, the intimidation of clinic patients and personnel, tresspassings, clinic bombings and arsons, assaults, kidnappings, and murders. Prior to the passing of FACE, the U.S. Supreme Court had ruled that other existing statutes were not applicable to control anti-abortion protest. In 1993, the Court decided in Bray v. Alexandria Women's Health Clinic that an 1871 statute against the deprivation of civil rights by private groups (the so-called ‘Ku Klux Clan Act’) could not be applied to prevent abortion clinic blockades. In 1994, the Court ruled that abortion clinics need not show an economic interest to bring RICO action against anti-abortionists should they engage in racketeering activity. Yet, in 2003, the Supreme Court decided that anti-abortion protest did not fit the definition of extortion in the Hobbs Act, which requires the obtaining of someone’s property under threat of force (National Organization for Women v. Scheidler 1994; Scheidler v. National Organization for Women 2003).

Originally introduced in 1993 as two separate bills in both U.S. Congress and the House of Representatives, FACE was presented in the form of the Senate Bill to President Clinton and signed into law on May 26, 1994. While the House version of the bill was primarily oriented at the prevention of violence against abortion clinics, the Senate bill was based on a recognition of the need to protect a woman’s right to seek an abortion and the safeguarding of civil rights. The Senate version discussed extremist tactics of anti-abortion demonstrators and the fact that these protests often overburdened local law enforcement. The Senate concluded that such unlawful conduct was interfering with the exercise of the constitutional right of a woman to have an abortion, which has been guaranteed since the Supreme Court ruling of Roe v. Wade in 1973.

The FACE statute has many intimate connections with civil rights. The wording and form of the statute was modeled after the Civil Rights Act of 1968 that was enacted to prohibit the use of force or threat of force against persons attempting to exercise their constitutional rights. FACE is designed to cover only unlawful conduct, such as assault, trespassing, and vandalism, while not infringing on the free speech rights of abortion protesters. Inasmuch as the statute provides protection to counseling centers that provide alternatives to abortions as well as to clinics that provide abortions, it is not meant to discriminate on the basis of content or one’s viewpoint on the morality of abortion. FACE is also meant to apply to anyone engaging in the prohibited conduct irrespective of motive or purpose.

Some critics have raised concerns about the FACE statute because it would be overbroad and not content neutral as it was written in view of anti-abortion activism. However, while the majority of people arrested under the provisions of FACE have been anti-abortion protestors, FACE has also been applied to pro-choice activists who had similarly resort to violent or threatening acts.

The constitutionality of FACE might also be challenged because clinic blockades and intimidation could be considered expressive conduct that is protected by the First Amendment. Some legal scholars have argued this to be the case because such forms of abortion protest are not primarily meant to be instrumental in preventing abortions taking place as meant to be very noticeable expressions of one’s opinion on the morality and legality of abortion.

The courts that have examined the provisions of FACE have upheld the statute. Specifically, the courts have stated that the FACE statute is content neutral because it prohibits all threats of force of physical obstructions, not just those of anti-abortion protestors. FACE was also held to be narrowly tailored to serve an important government interest, which additionally provides sufficient alternative means of communication inasmuch as protestors retain the right to engage in free speech activities that do not violate the provisions of the statute.

Bibliography
  • Bauer, Rebecca. “Abortion Protesting.” The Georgetown Journal of Gender and the Law 4:179-195, 2002.
  • Franco, Helen R. “Freedom of Access to Clinic Entrances Act of 1994: The Face of Things to Come?” Nova Law Review 19:1083-1119, 1995.
  • Hoang, Lan. “Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248: The Controversy Behind the Remedy.” Seton Hall Legislative Journal 20:128-168, 1996.
  • Rose, Jill W., and Osborn, Chris. “Fac-ial Neutrality: A Free Speech Challenge to the Freedom of Access to Clinic Entrances Act.” Virginia Law Review 81:1505-1560, 1995.
  • Tepper, Arianne K. “In Your F.A.C.E: Federal Enforcement of the Freedom of Access to Clinic Entrances Act of 1993.” Pace Law Review 17:489-551, 1997.

Citations
  • Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
  • Roe v. Wade, 410 U.S. 113 (1973)
  • National Organization for Women v. Scheidler, 510 U.S. 249 (1994)
  • Scheidler v. National Organization for Women, 537 U.S. 393 (2003)
  • Cite as: Deflem, Mathieu, and Brian Hudak. 2006. "Freedom of Access to Clinics Entrances Act (FACE)." Pp. 407-408 in Encyclopedia of American Civil Rights and Liberties, edited by Otis H. Stephens, Jr., John M. Scheb II, and Kara E. Stooksbury. Westport, CT: Greenwood Press.