Prosecuting the pro-lifers

Since the Dobbs decision leaked six months ago, we have been told over and over again that it would be positively un-American to bring criminal charges against doctors who perform abortions. But prosecuting everyday Americans who exercise their free speech rights to protest or engage in sidewalk counseling outside abortion clinics? Well, that’s just good politics, in the eyes of the Biden Administration. And so it is that the full might of the United States Department of Justice has been turned on grassroots pro-life activists in yet another example of the politicization of law enforcement by this administration.

First came the early morning raid several weeks ago by two dozen armed FBI agents at the Pennsylvania home of Mark Houck, a pro-life activist, father of seven, and president of a Catholic men’s ministry. Houck’s wife told a news outlet, “The kids were all just screaming. It was all just very scary and traumatic.” She continued: “They had big, huge rifles pointed at Mark and pointed at me and kind of pointed throughout the house.”

The sledgehammer of federal law enforcement fell on this man because—allegedly—last year he shoved a pro-abortion counter-protestor outside an abortion clinic after the man was verbally harassing Houck’s child. Such a shove is not simply a shove, or even battery, officials claim, but a violation of the federal Freedom of Access to Clinic Entrances (FACE) Act of 1994, which guarantees access to abortion clinic entrances.

More recently, the Biden Department of Justice has charged eleven people with blocking entrance to a Tennessee clinic during an anti-abortion protest in 2021. In that case, there is no allegation of assault, simply that the protestors worked together to obstruct entrance to the clinic by the way they positioned themselves. They face one year in prison and fines up to $10,000.

All of this is deeply problematic for at least two reasons. First, the FACE Act is of dubious constitutionality. As the Supreme Court has acknowledged, “speech in public areas is at its most protected on public sidewalks.” Yet in 1997, the Supreme Court partially upheld a so-called “buffer zone” around a clinic entrance, a conclusion it reiterated in 2000 and 2014. These decisions are a good reminder of the aphorism, “Abortion cases make bad law”—in no other context would the Supreme Court countenance such a limitation on First Amendment rights, but abortion is treated as a special cause.

Indeed, one well-respected federal appeals judge recently pointed out that these decisions are “hard to reconcile with,” “in tension with,” “conflict with,” and even “incompatible with” modern First Amendment doctrine. Yet ultimately it is for the Supreme Court alone to fix the problem, and thus far it has not taken up that responsibility. Perhaps now with Dobbs decided, it will be easier for the Court to bring abortion-related rules into conformity with regular judicial doctrine.

The second reason that these prosecutions strike a sour note is that the FACE Act protects not only access to clinic entrances, but also houses of worship. This provision was doubtless important in securing support for the Act from a number of Republicans in Congress when it passed. Yet equality in a bill’s text is only meaningful if followed by equality in enforcement.

Since the Dobbs leak, more than 150 churches, pregnancy resource centers, and pro-life ministries have been attacked. Yet the FBI has yet to announce any arrests for these acts of arson and property destruction. Pro-lifers rightly wonder why the FBI is dedicating resources to prosecuting sidewalk counselors but has not come through with arrests after Molotov cocktails were lobbed through the windows of pro-life ministries.

Why is the Biden Administration pushing forward with these cases? Because the White House is under pressure from the Left to deliver as much as it can through its agencies in the wake of Dobbs. The irony is that the Department of Justice will prosecute pro-life activists who engage in sidewalk protests outside abortion clinics, but will not lift a finger against pro-abortion activists who engage in illegal sidewalk protests outside the homes of U.S. Supreme Court justices. We all need to remember that “free speech for me but not for thee” is not really free speech at all.