Pro-life activists on trial for FACE Act violation

The trial of five pro-lifers facing federal charges continues this week in a Washington, D.C., courtroom. If convicted, the activists could serve up to 11 years in prison for conspiracy against the “right to reproductive health services” and for allegedly violating the Freedom of Access to Clinic Entrances (FACE) Act, a law passed in 1994 to deter pro-lifers from engaging in sit-ins at abortion facilities. This case centers around a sit-in that took place at the Washington Surgi-Clinic in October 2020.

Who are the five defendants?

The lead defendant is Lauren Handy, a 29-year-old pro-lifer who made headlines last year after discovering five late-term aborted babies outside of the same abortion facility where the 2020 sit-in took place. The news of the babies broke around the same time federal agents arrested Handy for her involvement in the sit-in.

Also on trial are pro-lifers William Goodman, John Hinshaw, Heather Idoni, and Herb Geraghty, several of whom have participated in similar sit-ins in the past. Idoni is also a defendant in two similar federal cases, one involving a March 2021 sit-in in Tennessee and another stemming from an August 2020 sit-in in Michigan.

Four additional pro-lifers face the same charges related to the October 2020 sit-in, but the court scheduled them for a separate trial due to the unwieldy number of defendants and their lawyers. Jonathan Darnel, Jean Marshall, Paulette Harlow, and Joan Bell are set to appear in court on Sept. 6. A tenth defendant, Jay Smith, accepted a plea deal in March in which the federal government dropped the conspiracy charge and agreed to cap his incarceration at 10 months. On Aug. 7, Smith received a sentence of 10 months in prison followed by 36 months of supervised release.

Do the aborted babies Handy discovered have anything to do with the FACE charges?

The charges Handy faces do not have anything to do with her retrieval of the aborted babies. But the pro-lifers argue the babies’ bodies could be evidence that their actions at the facility in 2020 were justified.

Handy and fellow pro-life activist Terrisa Bukovinac obtained a box containing the aborted babies outside of the Washington Surgi-Clinic in March 2022. The box reportedly contained the remains of 115 babies, five of which were at extremely advanced gestational ages. Handy and Bukovinac said they sent most of the babies away for a proper burial but turned in the five older babies to D.C. officials for investigation.

The D.C. Medical Examiner’s Office announced it did not intend to perform autopsies of the babies. But medical experts who examined photographs of the babies said some were likely victims of partial birth abortions or had been left to die after being born alive during attempted abortions—both of which are violations of federal law. Handy and other pro-lifers say the bodies could be evidence of ongoing federal crimes at the abortion facility—a fact that would back up the defendants’ argument that they engaged in the sit-in to prevent criminal activity.

But the judge has barred Handy from sharing photos of the babies with the jury, calling them “incendiary” and saying the bodies discovered more than a year after the events in question could not have motivated the October 2020 sit-in.

What happened at the 2020 sit-in?

According to court documents, the pro-lifers planned the sit-in in advance, communicating with one another through text messages and video calls to sort out details. Some of the pro-lifers traveled from out of state to participate. In the days leading up to the event, Handy called the facility to make a 9 a.m. appointment for Oct. 22 under the name Hazel Jenkins.

At the time of Handy’s fake appointment, the pro-lifers entered the facility. Inside, some stood with arms locked in front of the facility’s staff entrance. Others moved the green lounge chairs in the waiting room and sat on them, attaching themselves to one another with ropes and chains to block other doors in the facility.

Police arrived and attempted to remove the pro-lifers as they sang and prayed out loud. “As long as they’re in there, no women can go in to kill their children,” Darnel said in a video livestreamed to Facebook. “We shall delay the murder of kids as long as we can in this building.”

According to the indictment, the actions of the 10 defendants amounted to conspiring with one another to shut down operations at the D.C. abortion facility, thereby obstructing the “right to reproductive health services.” It also alleges that they used “force and physical obstruction” to injure, intimidate, and interfere with a patient and staff members at the facility.

What’s happened in the courtroom so far?

The court started a week of jury selection on Aug. 9. Lawyers struggled to find individuals in the jury pool who were willing to put aside their personal views on abortion to make an impartial decision in the case. “It tells us a lot about where we are, culturally, that we spent a week picking a jury for a trial that might take less than that,” said Handy’s lawyer, Thomas More Society senior counsel Martin Cannon. “The facts aren’t that complicated. But the issue is difficult, especially in D.C.”

The trial began on Aug. 16. After opening arguments, the prosecution brought forward witnesses, including a woman who went to the facility for an abortion on the day of the rescue, abortion facility staff, and officers who arrived at the scene. Another witness, former rescuer Caroline Davis, preached and sang hymns on the sidewalk outside of the facility during the rescue. The government indicted her under FACE for her participation in two other rescues, but she agreed to testify in this trial as a part of a plea deal to reduce her charge.

On Monday, the prosecution continued with witness testimony. In the afternoon, the judge ruled against allowing the defense to show a video that pro-lifers say spurred them to participate in the 2020 rescue. The undercover video the pro-life group Live Action filmed in 2012 shows Washington Surgi-Clinic abortionist Cesare Santangelo admitting to allowing infants born alive during attempted abortions to die.

How is this case different from other FACE cases?

William Goodman, one of the defendants in the current trial, said he has been participating in pro-life activism since the 1990s. He’s been arrested for his participation in pro-life sit-ins at abortion facilities in the past, but he said this case was his first criminal charge under the FACE Act. The indictment he and the other defendants received in March 2022 was the first time that he had seen pro-lifers charged with conspiracy against rights, Goodman said. That charge brings with it a hefty 10-year prison sentence while a first-time FACE violation is punishable by only one year in prison.

The timing of the case also makes it unique. The federal government indicted the pro-lifers in March 2022, before the U.S. Supreme Court issued the Dobbs v. Jackson Women’s Health Organization decision. But the trial itself is happening more than a year after that decision, making this case one of the first FACE trials to take place without the precedent in Roe v. Wade that claimed to establish a federal right to abortion.

In a motion to dismiss the case, Handy’s lawyers argued that FACE, enacted after the Roe v. Wade decision, “is implicitly based on a constitutional right to abortion.” Without Roe, they argued, “there is no longer a federal constitutional interest to protect.” And, in Dobbs, the U.S. Supreme Court asserted there never was a federal right to abortion. The lawyers argue that decision dismantles the supposed right the pro-lifers allegedly sought to obstruct.

In July, the judge denied the motion. But as this case moves forward, senior counsel Cannon said, the U.S. Court of Appeals and the Supreme Court may recognize the merits of the argument and make a different decision.

What do pro-lifers hope to see come from this case?

The Progressive Anti-Abortion Uprising, where Handy serves as the director of activism, has championed the case as the one that could lead to the overturn of the FACE Act. Other defendants have expressed hope that it could also be a means of establishing the personhood of unborn babies through the court system.

Cannon affirmed that both are possible outcomes. Pro-lifers have argued for the repeal of FACE in the past. It wasn’t feasible in the context of Roe. “But Dobbs changes a lot,” Cannon said. If the defendants appeal the final decision that comes from this trial, he said the humanity of the child will be a part of the discussion.

But defendant Goodman articulated another goal of the case that will be possible with or without the hoped-for legal outcomes. “Being a voice for the voiceless in the courts—that’s part of the rescue,” he said. “The rescue continues. It didn’t stop on Oct. 22, 2020.”