Pro-Lifers Hope They May Gain More Access to Abortion Clinics

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

( - A federal judge renewed a debate last week over the Freedom to Access Clinic Entrances Act by declaring part of the law unconstitutional and giving pro-life activists hope of limiting its scope.

The 1994 federal law prohibits violent threats and the assault of abortionists as well as vandalism and blockades of clinics. It has been hailed by abortion providers, but pro-life groups view it as an unnecessary infringement on their First Amendment rights.

U.S. District Judge Kenneth Hoyt's decision last Monday wasn't the first to declare part of the act unconstitutional. His ruling relied on an interpretation of the Commerce Clause of the U.S. Constitution.

Even though most federal appeals courts have upheld the FACE Act, the Supreme Court has yet to examine the merits of the law. Hoyt's decision will likely be appealed to the U.S. Court of Appeals for the 5th Circuit, but even the victory at a trial court has excited some pro-lifers.

"It's a step forward," said Joseph M. Scheidler, national director of the Pro-Life Action League. "The whole FACE Act is basically unconstitutional. It's certainly opposed to free speech."

In February, the Supreme Court sided with Scheidler and other pro-life activists who had spent nearly two decades fighting the National Organization for Women. The court rejected arguments that they were guilty of extortion because of their actions at abortion clinics.

Scheidler said he has observed a change in the way law enforcement officers and the pubic view abortion protesters today. During a recent rally at the Holocaust Memorial Museum in Washington, D.C., he said security guards and police officers were more than willing to accommodate his request to distribute flyers and set up a display outside the museum.

Despite their excitement with Hoyt's ruling, not all pro-lifers agreed with actions of pro-life activist Frank Lafayette Bird, Jr., who drove his van through the front doors of the Houston Planned Parenthood clinic in March.

The case wasn't Bird's first encounter with the FACE Act. A 1996 incident in which he threatened an abortionist resulted in a year in prison. In his decision last week, Hoyt suggested that the case should be reviewed.

Peter Durkin, chief executive officer of Planned Parenthood of Houston, said he disagreed with the judge's ruling but remained confident that the FACE Act would survive.

"I believe law enforcement and the U.S. attorney's office want FACE to be upheld because they think it's an important tool in their toolbox," Durkin said. "For both our clients and our staff, we just want to make sure that justice is done. When people want to take it upon themselves to drive a van through a legitimate business and cause nearly $10,000 worth of damage, there are some consequences."

Durkin said despite the March incident involving Bird, which didn't result in any injuries, violence against the clinic has been steadily declining.

Figures from the National Abortion Federation, an organization that tracks violence against abortion providers, indicated that there has been a drop in crime nationwide.

"There has been a downturn in the last year in terms of assassination attempts, which we attribute in large part to the work of law enforcement," spokeswoman Jennifer Helburn said. "But we are concerned that trend may reverse itself."

Helburn's concerns stem from the upcoming execution of Paul Hill by the state of Florida. Hill, who is set to die Sept. 3, was convicted of killing an abortionist and a clinic escort in July 1994. Last week, Florida officials close to the case received death threats and bullets in the mail.

Durkin said that too often violence against abortion clinics is the work of individuals who claim to have a higher calling, which he compared to the ongoing dispute in Alabama involving a judge's refusal to move a Ten Commandments monument.

"There is now this perception by extreme conservatives who are saying that all these laws we have written down are less applicable to them," Durkin said. "It undermines the rules we all play by. There are things each of us has concerns about, but on balance, that's why we have representative government and the courts."

In a case in Wisconsin, pro-life activist William Goodman has asked the state supreme court to hear his appeal and recognize a common law defense of necessity for his actions in December 2000, when he entered a Madison abortion clinic to counsel women waiting to have abortions.

His attorney, Robert J. Muise of the Thomas More Law Center, said Goodman believes the women were under duress and coercion, which prompted him to enter the clinic. He was later sued for trespass.

Muise said the case is similar to an instance in which someone might need help on a neighboring property. He said people have a necessity to intervene in those cases. If the Wisconsin Supreme Court agrees with that argument, Muise said the onus would still be on the defendant.

"This does not give a free pass to walk into an abortion clinic at any time," Muise said. "You have to reasonably believe that it's necessary to prevent harm to a third person, and then, you have to convince the jury that your belief is reasonable."

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