This Memo for the Movement was originally published here: https://conservativeactionproject.com/conservatives-urge-repeal-of-unjust-and-unconstitutional-face-act/ 

February 12, 2024
Washington, D.C.

Conservatives stand united against the unjust and illegal, selective prosecution of conservatives under the unconstitutional Federal Access to Clinic Entrances Act (FACE Act). The 1994 federal criminal law, signed by President Clinton, has been consistently abused under the Biden Administration to intimidate, harass, and punish its political opponents.

The FACE Act must be repealed. We urge Congress to take swift and aggressive action against it. At a minimum, Congress should mark-up and pass Rep. Chip Roy’s H.R. 5577 and Sen. Mike Lee’s S. 3017 repealing the FACE Act.

An honest legal review of the FACE Act (18 U.S.C. § 248) shows it is constitutionally suspect. Congress claimed jurisdiction to enact it under the much-abused Commerce Clause and Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Yet it failed to address how even that approach would justify this granting of general police power that is traditionally reserved for the states. Given the topic of the legislation, prohibiting actions to block access to abortion clinics, if its constitutional underpinnings were suspect then, they have entirely crumbled now that the U.S. Supreme Court has admitted there is no constitutional right to abortion.

Worse yet, the Biden Administration is abusing this law to punish pro-life activists who are a major target of one of the Administration’s biggest donor base, abortion lobbyists. In September, the U.S. Department of Justice (DOJ) got convictions against three peaceful pro-life activists who now face “a maximum of 11 years in prison, three years of supervised release, and a fine of up to $350,000.” Two of the women charged are over seventy years of age.

The case of pro-life advocate Mark Houck, who also faced the wrath of the Biden DOJ under the FACE Act over a mundane 2021 encounter with a Planned Parenthood escort outside a Pennsylvania clinic, is another egregious example. The altercation would normally not garner any attention outside the local clinic. Instead, the Biden FBI showed up to arrest Houck at his home, terrifying his wife and children. He was later acquitted of the charges, but the damage to his family cannot be overstated.

In March of 2022, DOJ announced the indictments of nine defendants under the FACE Act for “obstructing patients and providers of a reproductive health services facility.” After their conviction, they, too, face more than a decade in prison. In 2022, the Department of Justice charged 26 pro-life individuals with FACE Act violations. On the other hand, zero indictments were brought against those who not only protested but vandalized numerous pro-life clinics. In 2023, the DOJ filed nearly thirty FACE Act charges.

The emphasis on targeting pro-life Americans is part of the Biden Administration’s plan of action after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision. Associate Attorney General Vanita Gupta delivered remarks at DOJ’s Civil Rights Division’s 65th Anniversary in December 2022, where she said:

[T]he Supreme Court dealt a devastating blow to women throughout the country, taking away the constitutional right to abortion and increasing the urgency of our work, including enforcement of the FACE Act, to ensure continued lawful access to reproductive services.

DOJ was unmoved as more than 100 pro-life clinics, organizations, and churches were attacked following the famous Dobbs leak. Their twisted schemes of targeting pro-life conservatives continued in 2023, where another 26 charges have been brought. DOJ has never used the FACE Act to prosecute anyone blocking access to a church or house of worship.

Americans have witnessed constant protests at the homes of U.S. Supreme Court Justices with no arrests, violent Black Lives Matter protests with millions of dollars in damages encouraged by the Biden Administration, anti-Israel protests shutting down entire highways, blocking access to emergency health services, defended under the First Amendment. But somehow, peaceful pro-life advocates are beyond First Amendment protection. This is an outrageous violation of the most fundamental principles of freedom and liberty.

The selective application of First Amendment rights must end now. The FACE Act must be repealed.

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