Interpretation of FACE Act Will Be Tested in Trial of Pro-Life Advocate

Pro-life activist Mark Houck, at the 40th annual Stand Up For Life dinner in Philadelphia on Nov. 20, 2022. May Lin/The Epoch Times

Commentary

You would think that after the Supreme Court ruled 6–3 last June in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion, the federal government would mostly bow out of the abortion arena, leaving the issue to the states to regulate legislatively. But that would underestimate the federal government under the relentlessly abortion-promoting presidency of Joe Biden.

From pushing a (so far-failed) bill in Congress that would allow unrestricted abortion until birth to, just this month, permitting mail-order sales of abortion pills in seeming contravention of federal law, the Biden administration seems determined not just to make the Dobbs decision legally irrelevant but to marginalize and punish abortion opponents.

One of the administration’s tactics against the pro-life movement has been a sudden spate of federal felony prosecutions of protesters outside abortion clinics for alleged offenses that would be regarded as misdemeanors, if that, under local ordinances. The law that the Justice Department uses is the Freedom of Access to Clinic Entrances (FACE) Act, a 1994 federal statute passed in order to deal with the sit-ins and entrance blockades that were a tactic of Operation Rescue and other militant groups trying to shut down abortion clinics. The law imposes heavy criminal and civil penalties on anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with” people either seeking or providing “reproductive health services.”

That was 1994. But starting in 2022 after Dobbs, the Justice Department has been directing its prosecutions at peaceful protesters on the public sidewalks outside the clinics. These demonstrators, who have a legal right to be there in most localities, typically don’t even try to block doorways or prevent access. But they annoy clinic personnel by praying, displaying pro-life signs, and trying to persuade women visiting the clinics to keep their babies instead.

But the Justice Department has decided that the protesters are a threat—to the “escorts,” the unpaid volunteers solicited by Planned Parenthood and other abortion providers to stand outside clinic doors wearing colorful vests and steering women inside. The FACE Act doesn’t mention escorts or other volunteer “defenders” of abortion rights who hang around outside clinics, but the Justice Department says it has persuaded some courts to rule that they’re providers of “reproductive services” just like the paid staffers inside.

Thankfully, that expansive interpretation of the FACE Act could end soon—in a case that so far has represented one of the Justice Department’s most egregious efforts to use the act to bludgeon abortion opponents.

On Jan. 24, a federal jury trial began for Mark Houck, 48, a father of seven children and a locally prominent Catholic activist. On Oct. 13, 2021, Houck took his 12-year-old son to pray on the sidewalk outside a Planned Parenthood clinic in Philadelphia. There, Houck allegedly got into an altercation with Bruce Love, 72, a regular among the escorts who had allegedly been in verbal spats with Houck in the past. Houck says that Love hurled obscenities at his son, so he allegedly pushed him away. On Oct. 20, 2021, Love filed a complaint with the local district attorney’s office claiming that Houck had knocked him to the ground, injuring his right hand, arm, and hip. But when Houck appeared for misdemeanor arraignment in the Philadelphia municipal court on Nov. 22, 2021, Love reportedly failed to show up, and after at least one more no-show, the charges against Houck were dismissed.

That should have been the end of it, except that it wasn’t. Nearly a year later, on Sept. 23, 2022, about 20 FBI agents reportedly clad in combat attire and brandishing guns appeared at Houck’s home and arrested him for alleged FACE Act violations in front of his children. This was despite the fact that Houck’s lawyers had promised to voluntarily surrender their client after receiving notice of his indictment on Sept. 20, 2022. Love had upped the ante, accusing Houck of knocking him to the ground not once but twice, one time while he was allegedly attempting to escort clients. (Houck maintains that there was only one incident, and video stills of the incident produced by the Justice Department don’t show any abortion-clinic clients who might have been involved.) Houck faces a prison sentence of up to 11 years and a maximum fine of $350,000 if convicted.

Fortunately, and thanks to some last-minute detective work by lawyers for the Thomas More Society, which is helping with Houck’s legal defense, it now appears that not only are volunteer escorts not mentioned in the FACE Act, but the legislative debates before the act’s passage clearly indicate that even the Democrats in Congress actively intended to exclude them and other sidewalk activists from the act’s coverage, at least as “aggrieved parties” who can sue for civil damages over scuffles.

Over the weekend of Jan. 13, a Thomas More lawyer combed through the Congressional Record for 1994. It turned out that during a floor debate over the act, its chief sponsor, the late Sen. Edward Kennedy (D-Mass.), had assured Senate Republicans explicitly: “Demonstrators, clinic defenders, escorts, and other persons not involved in obtaining or providing services in the facility may not bring such a cause of action.”

Houck’s lawyers still have a tough legal row to hoe—partly because despite the pledges of Kennedy and other Senate Democrats, the language of the FACE Act itself doesn’t specifically exclude escorts from its coverage. Courts typically prefer to rely on the texts of laws rather than their legislative history. Still, what Houck’s lawyers have uncovered is a powerful argument that the very phrase “providing reproductive services” in the language of the act simply doesn’t include shepherding clients to an abortion-clinic door. And that, in turn, is a powerful argument against the Justice Department’s overreaching insistence on making federal felony cases out of minor tiffs involving pro-life activities that the Biden administration would clearly like to squelch.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.