A law weaponized against pro-lifers

On Wednesday, the House Judiciary Committee voted to advance out of committee a bill to repeal the Freedom of Access to Clinic Entrances Act. Known as the FACE Act, that statute has been primarily used to target nonviolent pro-life demonstrators. Its repeal would be a welcome development for the rule of law.

Enacted in 1994, the Face Act prohibits force, threats of force, or physical obstruction that injures, intimidates, or interferes with individuals seeking reproductive health services. Congress broadly defined the term “reproductive health services” to include not only abortion facilities but also pregnancy centers. The FACE Act is also supposed to protect churches and other houses of worship from violence, vandalism, and intimidation.

Yet the FACE Act has been almost singularly used to target pro-life advocates. The Obama administration, for example, filed at least eight civil FACE Act cases—compared to only one during President Bush’s eight years in office.

The Biden DOJ took weaponization of the FACE Act to a whole new level. From 2021 to the end of 2024, it brought criminal or civil cases under the FACE Act against 55 individuals, 50 of them pro-life. It charged 24 FACE Act cases but only two in defense of pregnancy centers.

To make matters worse, the Biden administration found a new way to weaponize the FACE Act. It used the statute as a predicate to charge individuals who protested at abortion facilities with another felony charge: conspiracy. Individuals convicted of conspiracy can be sentence to ten-years in prison—even for nonviolent civil disobedience. This subjected even nonviolent pro-life protestors—like Eva Edl, an 89-year-old concentration camp survivor, who sat in her wheelchair singing in front of an abortion facility—to exponentially higher sentences than under any previous administration. Because the Biden DOJ tacked on a conspiracy charge, Eva faced a sentence of up to 11 years in federal prison.

The Biden administration’s one-sided use of the FACE Act occurred despite an unprecedented level of violence towards pregnancy centers and churches. Since the Dobbs opinion was leaked in May of 2022, more than 100 pregnancy centers have been vandalized, spray painted, or firebombed. Only two cases were initiated by the Biden administration to protect pregnancy centers. As for churches, the Family Research Council identified 436 incidents of threats or violence against churches in 2023 alone. Yet the Biden DOJ did not use the FACE Act to protect a single house of worship.

The violence and intimidation facing pro-life organizations has been serious. To take just a few examples, on June 7, 2022, CompassCare’s office in Buffalo, N.Y., was firebombed and tagged with spray paint reading, “Jane was here.” Three days later, on June 10, the Gresham Pregnancy Resource Center in Gresham, Ore., was set on fire. And on June 25, Life Choices Free Pregnancy Services in Longmont, Colo., was firebombed and spray-painted with the message, “if abortions aren’t safe, neither are you.”

The Trump administration has done much to set things right. The president pardoned 23 pro-lifers convicted under the FACE Act. When signing the pardons, the president acknowledged they should never have been prosecuted. And his Department of Justice has committed to enforcing the FACE Act only in extraordinary circumstances. That makes sense. Yet the historically one-sided use of the FACE Act is antithetical to a free society, and nothing prevents a future administration from following that playbook. For that reason alone, Congress should repeal the FACE Act.

The FACE Act is also on tenuous constitutional grounds. Because the federal government is one of limited and enumerated powers, Congress must identify a power to support its legislation. Congress tapped the Commerce Clause when it enacted the FACE Act. While the Supreme Court has interpreted the Commerce Clause broadly to apply to intrastate economic activity that substantially affects interstate commerce, protesting does not involve economic activity. It regulates protests and things like trespass and disturbing the peace—acts traditionally within the power of states to regulate. Repealing the FACE Act would not mean that criminal conduct could occur without legal consequence. Every state has laws that regulate trespass, assault, disorderly conduct, unlawful assembly, and the like.

One of the most enduring and crucial features of the American constitutional design is its commitment to the equal application of law. John Adams famously described the republic as “a government of laws, not of men”—meaning that, in America, the rule of law comes before politics. Yet that adage has not proven true of the FACE Act. The American people deserve better. The FACE Act should be repealed.