A growing variety of federal prosecutions and convictions of pro-life activists is prompting a recent legal debate that their attorneys hope will go to the Supreme Court. This week, six pro-life activists were convicted of federal crimes in Nashville for demonstrating outside a clinic in early 2021.
In the wake of Dobbs v. Jackson Women’s Health Organization, the Justice Department increased prosecution of pro-life protestors outside of abortion clinics. Those cases included each peaceful protestors and people who were obstructing clinic entrances, which is a violation of the federal Freedom of Access to Clinic Entrances (FACE) Act.
More than a dozen protestors have now been convicted of federal crimes within the last yr, and face sentences of greater than 10 years. Eight more face trial in Michigan in April. Those criminal prosecutions were rare before 2021, with one or two cases annually for the past decade.
The six activists convicted in Tennessee this week argued they demonstrated peacefully, saying they were singing hymns and praying in a medical pavilion hallway outside the clinic. A police officer testified on the trial that the protestors were peaceful, in accordance with The Tennessean, but they refused to depart. They were convicted of “obstructing access to reproductive health services.”
Some activists’ stated goals are to physically block women from having abortions by obstructing entrances, while others hope that their peaceful presence outside a clinic would persuade those looking for abortions to make a special alternative.
The FACE Act doesn’t clearly distinguish between sorts of activism outside clinics: It covers those that try to injure, intimidate, or interfere with anyone at a spot “providing reproductive health services.”
The protestors face longer prison sentences than prior to now because prosecutors have added a civil rights conspiracy charge to essentially the most recent batch of cases, which carries a maximum 10-year sentence.
“This ‘conspiracy to violate civil rights’ [charge]—it’s a recent strategy the DOJ is using,” Calvin Zastrow, considered one of the pro-life protestors in Tennessee who’s a Christian, told CT shortly after his conviction this week. He faces an 11-year sentence, but unlike defendants in other FACE cases, he and others in his case weren’t immediately taken into custody.
Zastrow has participated in lots of demonstrations at clinics over time and said charges were often “just trespassing or disturbing the peace or disorderly conduct.” He argues that abortion is the violent act: “We are the peacemakers.”
Former federal prosecutor Ed Mechmann, in a blog post on the pro-life protestors’ convictions, described the civil rights conspiracy charge as a “prosecutor’s best friend” since it allows prosecutors to charge a big selection of individuals—even those that may not have participated—with conspiracy.
“This creates an enormous drawback for minimal participants,” he said. “You can have thought that you simply were agreeing to something peaceful, but you’re still legally responsible if considered one of your cohorts committed an act of violence.”
In August and September 2023, eight protestors were convicted of civil rights conspiracy and FACE violations for an incident at a DC abortion clinic in 2020. Some members of the group forcefully entered the clinic and blockaded it, and prosecutors said the forceful entry caused a nurse to stumble back and sprain her ankle. Their sentencing is in May, they usually have been incarcerated since their convictions.
One of the eight convicted in DC, Jonathan Darnel, faces the identical maximum sentence of 11 years, though he remained outside the clinic and livestreamed the incident.
“FACE was designed to interrupt up pro-life civil disobedience,” said Darnel in a text message with CT soon before his incarceration. “And it succeeded in doing that.”
In June 2023, a Franciscan friar was sentenced to 6 months in prison for obstructing the doorway to an abortion clinic. Though he has protested at clinics prior to now, this was his first FACE conviction.
Pro-life attorneys have criticized the Department of Justice for one-sided prosecution of FACE, when pregnancy centers in 24 states have been vandalized or set on fire. Perhaps in response, in 2023 the DOJ filed FACE Act and civil rights charges against 4 individuals in Florida for a 2022 attack on a pregnancy center.
Those pro-choice defendants, just like the pro-life protestors, face greater than 10 years in prison due to civil rights conspiracy charges. The jury trial for that case is currently slated for March.
Attorneys for the pro-life defendants plan to appeal to higher federal courts but must accomplish that after sentencing. They need to challenge the usage of the civil rights conspiracy charge in addition to the validity of FACE prosecutions post-Dobbs. National pro-life groups are watching these cases too, though clinic blockades usually are not a method they engage in.
“We will watch this through the appeals court and possibly to the Supreme Court,” Steven Aden, chief legal officer and general counsel at Americans United for Life, told CT. “Our legal team is considering filing a temporary on their behalf.”
Aden thinks that federal courts may not have jurisdiction to implement FACE after Dobbs.
“Federal criminal law constitutionally only exists to implement federal interests,” he said. “Consequently, every federal prosecution has to have a federal hook—a constitutional right that’s been violated, comparable to the best to vote, or the violation of a federal statute. You have neither here. You don’t have any federal constitutional right to abortion after Dobbs, and there is no such thing as a federal statute that grants a lady a right to abortion.”
Mechmann, the previous prosecutor, argued that for the convicted DC protestors’ case, no less than, abortion is legal by statute in DC, a federal district.
“Access to a clinic can be guaranteed under federal law. So anyone who blockades an abortion clinic denies an individual of a right ‘secured … by … the laws of the United States,’” he wrote. “The Supreme Court’s decision in Dobbs, which held that there is no such thing as a right to abortion within the US Constitution, is entirely inappropriate.”
In the DC protestors’ case, Judge Colleen Kollar-Kotelly issued a 10-page opinion that addressed the inclusion of the civil rights conspiracy charge, saying it protected federal rights established by the FACE Act. She said Dobbs didn’t have any impact on the case.
One protestor who pleaded guilty to participating within the DC clinic blockade was sentenced to 10 months in prison. Mechmann estimates that those without previous convictions will get sentences of lower than a yr to potentially two years. But many participating in these blockades have a previous record for a lot of these actions. The protestors imagine it’s nonviolent direct motion akin to the civil rights movement.
These groups call these tactics “rescues,” which originated with Operation Rescue’s sit-ins at abortion clinics within the Nineteen Eighties. Operation Rescue participants needed to pledge nonviolence, but more extreme pro-life activists’ violence toward abortion providers, including the killing of an abortion provider in 1993, led to the passage of the FACE Act the next yr.
“You can only hold a gun or a cross, and we’ve chosen to take up a cross,” an Operation Rescue staffer, Rev. Jim Pinto, said in 1993, condemning the violence against abortion providers.
Clinic blockades declined after passage of the FACE Act, and native buffer zone laws also prevent activists from congregating near clinic entrances. Most pro-life activists outside clinics now concentrate on praying as an alternative of blocking women from entering, however the variety of activists at abortion clinics has been growing throughout the previous couple of years.
One currently in detention for the DC incident is Joan Bell, 74, who has been arrested at clinics repeatedly over time and is taken into account considered one of the originators of such a “rescue” activism. Her son, Emiliano Bell, attended the federal trial of the Tennessee protestors this week.
“Even though she was in jail greater than 200 times in her lifetime, I used to be a baby and it didn’t really hit me,” he said. “This last conviction—once I heard she might get 10 to 11 [years]—it was really hard.”
