Freedom of Access to Clinic Entrances Act (1994)

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Freedom of Access to Clinic Entrances Act (1994)

Lucinda Finley

The Freedom of Access to Clinic Entrances Act (P.L. 103-259), passed on May 26, 1994 and codified at 18 U.S.C. § 248), popularly known by its acronym, FACE, makes it a federal crime intentionally to use force, threats of force, or physical obstruction in order to intimidate or interfere with a person because that person is providing or obtaining reproductive health services. The definition of prohibited physical obstruction includes making ingress to or egress from a facility impassable, but it goes further also to prohibit rendering passage in or out "unreasonably difficult or hazardous." FACE also prohibits actual or attempted property vandalism of reproductive health clinics.

In addition to its criminal penalties, which vary with the degree of force or obstruction and with the number of prior offenses, FACE also authorizes those affected by these acts, or the federal or state attorneys general, to bring civil lawsuits to recover monetary damages and to get injunctions that prohibit identified people from continuing to do these prohibited acts of obstructing access to reproductive health facilities. Although FACE was passed in response to a growing national problem of obstruction and vandalism and violence aimed at abortion clinics and individual abortion providers, the statutory definition of protected reproductive health services is much broader than abortion. Protected services "includes medical, surgical, counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." Under this broad definition, the law would equally apply to someone who tried to block access to a Planned Parenthood facility that provides prenatal care and birth control but not abortions, and to someone who tried to block and interfere with staff or patients at a Crisis Pregnancy Center that ardently lobbies against abortion.


In the late 1980s, there was a noticeable increase in obstructive protests and vandalism at abortion clinics, as well as increased acts of violence aimed at abortion providers. The group Operation Rescue National formed to engage in what it called "rescues" at abortion clinics, which consisted of large numbers of people sitting or lying in front of clinic doors and driveways so that no one could get in or out. Some of these blockades degenerated into pushing, shoving, and harassment of people trying to get into clinics. In the summer of 1991, in an event it dubbed "the Summer of Mercy," Operation Rescue brought thousands of people to Wichita, Kansas, and for almost a month laid siege to the streets surrounding Dr. George Tiller's Women's Health Care Services clinic. The increasingly chaotic and dangerous situation, with impassable city streets, some stranded patients facing medical emergencies, hundreds of arrests and an overwhelmed local police force that had to be bolstered by a federal court injunction and federal marshals, garnered national media attention.

The Wichita event, and Operation Rescue's emboldened pronouncements that it would hold more large scale "rescue" sieges of other cities in the next year, led pro-choice organizations to call for national legislation with strengthened criminal penalties to respond to what was clearly not just a localized problem. In 1991, Congressman Mel Levine from the Los Angeles area introduced a bill he called the "Freedom of Access to Clinic Entrances Act," to make it a federal crime to blockade a medical facility. This bill began to gain co-sponsors and interest in Congress in the spring of 1992, when Operation Rescue tried to reproduce its Wichita event in Buffalo, New York, in an action it called "the Spring of Life." For two weeks several hundred protestors from around the nation came to Buffalo and clogged the streets and blocked access in front of several Buffalo area clinics. The local police again were reinforced by federal marshals and over 600 people were arrested.

In addition to the widely publicized massive blockades in Wichita and Buffalo, from 1991 to 1992 there were over 150 other blockade events at abortion clinics in all parts of the country. Death threats against doctors and clinic staff also increased, as did destructive acts of vandalism including spraying clinics with butyric acid, a hazardous noxious chemical whose putrid fumes render an area unfit for occupancy. This escalating climate of blockades and violence aimed at abortion clinics created a growing sense of urgency among pro-choice advocacy groups for a federal response.

On May 6, 1992, a few days after Operation Rescue ended the Buffalo "Spring of Life" blockades, the House Subcommittee on Crime and Criminal Justice of the Judiciary Committee convened oversight hearings to consider the growing problem of clinic blockades and the necessity forand constitutionality offederal legislation to criminalize blockading reproductive health facilities. Rep. Charles Schumer from New York, who became New York's senator a few years later, chaired the hearings and soon became a leading cosponsor of FACE along with Representative Connie Morella from Maryland. Another key active co-sponsor was Representative Louise Slaughter, also from New York. At these hearings, members of Congress heard from three women who had been patients trying to get into blockaded clinics, including a woman who had been trapped in her car outside the Wichita clinic, and a Michigan woman who could not get into her gynecologist's office for an urgent prenatal appointment to monitor her high risk pregnancy. A Virginia police chief also testified that his small department could not handle the largescale protests and needed the additional resources and reinforcement of federal authorities. Keith Tucci, then the head of Operation Rescue, who had come to Washington directly from the streets of Buffalo, testified that their peaceful civil disobedience was akin to that of the abolitionists, women's suffrage activists, and civil rights advocates of the 1950s. He warned that legislating against the passive resistance of blockades would escalate violent confrontation at abortion clinics.

There was no further action on clinic blockade legislation until the spring of 1993. Three events combined to create both a sense of urgency and enhanced political prospects for a federal response. The pro-choice Bill Clinton became president in January 1993, and appointed a pro-choice attorney general, Janet Reno, who promised that the problem of violence targeted at clinics would become a top priority for the Justice Department. The U.S. Supreme Court, however, dealt a serious blow to available legal avenues for a federal role, when in January 1993 it ruled in the case of Bray v. Alexandria Women's Health Clinic that the federal civil rights statute known as the Klu Klux Klan Act did not apply to protestors obstructing access to abortion. This statute had been the basis for several federal court suits and injunctions against clinic blockaders, including the federal intervention in Wichita and Buffalo. After the Bray decision, Attorney General Reno and members of Congress concluded that new legislation was essential for federal law enforcement and federal courts to have any authority to deal with a problem that obviously was national in scope. The final impetus that made FACE inevitable happened in March 1993, when an antiabortion protestor named Michael Griffin, who had previously limited himself to blockades and picketing, murdered a Florida physician, Dr. David Gunn, as Gunn tried to enter the clinic where he worked. Arguments that the antiabortion protest movement was just peaceful civil disobedience became much harder to sustain.

Shortly after the confirmation of newly elected President Bill Clinton's attorney general, Janet Reno, staff attorneys from the Department of Justice met with staff from the Senate Labor and Human Resources Committee chaired by Senator Kennedy of Massachusetts, to draft a bill, S. 636, that with some modifications became the FACE law. Sensitive to the first amendment issues involved when responding to a protest movement that used both legitimate and illegitimate tactics, they modeled the bill after a provision of the federal civil rights law that prohibits using force or threats of force to willfully injure, intimidate, or interfere with people engaging in a variety of federally protected activities, including voting. S. 636 prohibited using force, threats of force, or physical obstruction to injure, intimidate, or interfere with people obtaining or helping to obtain abortion services. Representatives Schumer and Morella introduced a companion House version, H.R. 796.

In March 1994 the House voted to adopt S. 636 as a substitute for its bill but insisted on a conference committee to iron out a few differences. In early May 1994 each chamber adopted the conference committee final version, and on May 26, 1994, President Clinton signed FACE into law. Unfortunately, the enhanced federal criminal penalties soon had to be invoked, when, shortly after FACE became law, antiabortion protestor Paul Hill murdered Dr. Brittain and John Barrett, who was helping to escort him into a Pensacola, Florida, clinic.


The Justice Department immediately began bringing criminal prosecutions against those who blockaded clinics, and in federal courts in all parts of the country defendants challenged the constitutionality of FACE. They contended that FACE exceeded Congress's power under the Commerce Clause because they were engaged in political protest, not economic activity, and that FACE violated the First Amendment. Courts have routinely rebuffed these constitutional challenges, and the U.S. Supreme Court has consistently refused to hear any challenges to FACE. Within less than a decade after it became law, FACE's constitutionality under the First Amendment and Commerce Clause was considered a settled legal issue.

Courts that have upheld FACE as consistent with the First Amendment have emphasized that the statute targets the prohibited acts of force, threats, and obstruction, not protected speech. To the extent that some expressive activities may fall into these definitions, the act does not single out speech because of its content and government's compelling interest in public safety and ensuring safe access to health care justifies any incidental effects on protected speech. Courts have also rejected the argument that FACE discriminates against the antiabortion viewpoint, noting that it applies equally to acts directed at staff or patients of antiabortion health care facilities.

Rejecting Commerce Clause challenges, courts have reasoned that the Act prohibits activities that are aimed at interfering with businesses that are substantially engaged in interstate commerce. Many patients and doctors have traveled interstate to obtain or provide services, and clinics purchase their equipment in interstate commerce. Even after the Supreme Court in 2000 adopted stricter limits on the scope of Congress's Commerce Clause power, courts have still ruled that FACE is a valid exercise of the Commerce power.


Since FACE's passage and its initial enforcement, antiabortion protestors have largely abandoned the tactic of large scale blockades. Operation Rescue and similar groups such as the Lambs of Christ claim that they have been deterred from this tactic by the federal criminal penalties. In those civil FACE cases that have resulted in buffer zone injunctions, protest activity and obstruction has decreased significantly. While individual or smaller scale instances of picketing, driveway interference, and harassment still occur, FACE has been credited by national abortion rights organizations with reducing the climate of obstruction and harassment at clinics.

The most dedicated extreme proponents of violence, however, have not been deterred, just as they told Congress that no "man's law" would keep them from following what they regard as a higher command. After September 11, 2001 and the real anthrax attacks on the Senate and media outlets, abortion clinics around the country received a wave of letters purporting to contain anthrax and had to undergo full decontamination. The person accused of committing these attacks, who was branded a domestic terrorist by the attorney general, is at the time of this printing awaiting trial on federal FACE charges. Clinic bombings continue, and when the alleged perpetrators are apprehended, FACE is also used to levy serious penalties against them. Another abortion provider, Dr. Barnett Slepian, was murdered in 1998 in Buffalo, New York, and the man convicted of his murder is also facing a federal criminal trial under FACE. While no law can completely stop violence, FACE has proved to be an important tool for clinics to protect themselves against obstruction and threats, and for the federal government to investigate and levy serious penalties against the most extreme acts of violence against reproductive health providers.


Campbell, Regina. "'FACE'ing the Facts: Does the Freedom of Access to Clinic Entrances Act Violate Freedom of Speech?" 64 University of Cincinnati Law Review 947 (1996).

Franco, Helen R. "Note & Comment: Freedom of Access to Clinic Entrances Act of 1994: The Face of Things to Come." 19 Nova Law Review 1083 (1995).

Risen, James, and Judy L. Thomas. Wrath of Angels: The American Abortion War. New York: Basic Books, 1998.

Tepper, Arianne K. "Comment: In Your F.A.C.E.: Federal Enforcement of the Freedom of Access to Clinic Entrances Act." 17 Pace Law Review 489 (1997).

Wainwright, Jessica. "The Evolutionary War on First Amendment Rights and Abortion Clinic Demonstrations." 36 New England Law Journal 231 (2001).

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Freedom of Access to Clinic Entrances Act (1994)

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