“Freedom Of Access To Clinic Entrances ACT” (FACE)
On May 17, 1994, in response to the escalating violence against abortion doctors and their clinics, President Bill Clinton signed the FACE act into law at a ceremony at the White House. In attendance was David Gunn, Jr., whose father – an abortion doctor – was murdered by a pro-life activist in Pensacola just a year earlier.
The FACE act was originally introduced by Representative Mel Levine (CA) and Senator Alan Cranston (CA), passed the Senate on Nov 16, 1993 by a 69-30 vote. It then passed the House of Representatives by a 237-169 vote
prohibits people from using threats, violence, obstructions, or intimidation to prevent people from entering reproductive health facilities or obtaining services at these facilities
prohibits the use of threats, violence, or intimidation against people exercising their first amendment or religious rights
prohibits people from damaging facilities because they offer reproductive health services;
prohibits people from damaging places of religious worship;
protects a protestor’s right to free speech in that the protestor could conduct peaceful protest, including singing hymns, praying, carrying signs, walking picket lines and distributing antiabortion materials outside of clinics. It also allows shouting outside of clinics, as long as no threats are made and the noise level does not exceed the legal levels as defined by state and local laws.
Courts have routinely rebuffed these constitutional challenges, and the U.S. Supreme Court has consistently refused to hear any challenges to FACE. Within less than a decade after it became law, FACE’s constitutionality under the First Amendment and Commerce Clause has been considered a settled legal issue.
Meanwhile, records indicate that the Obama Justice Department has filed six lawsuits under the Freedom of Access to Clinic Entrances Act, mostly to seek injunctions and fines. That compares with just one such lawsuit during the entire eight years of George W. Bush. Since Obama’s inauguration, federal lawsuits have been filed against a woman who blocked a car from entering a clinic in West Palm Beach, Fla.; a Texas man who threw his body across the door of a patient waiting area in San Antonio; and a Pennsylvania man who posted on the Internet the names and addresses of abortion providers and extolled his readers to kill them.
California, Washington and New York have established their own version of FACE and other states have enacted similar laws designed to protect clinics, their employees, and patients. For example, in 11 states it is illegal to obstruct a clinic entrance (California, Maine, Kansas, Maryland, Minnesotra, Nevada, Montana, New York, Oregon, North Carolina and Washington). Six states prohibit making threats toward clinic staff or patients (CA, MI, NY< NC, WA, WI). Four states ban property damage to a clinic (CA, OR, NY, WA).
BUBBLE OR BUFFER ZONES
In the United States, several states and some cities have passed “buffer zone” legislation, which can create either a “fixed” area around a medical facility or a “floating” area around patients and staff:
Colorado: In 1993, the state enacted a law requiring protesters to stay eight feet from anyone entering or leaving an abortion clinic, as long as the clinic visitor was within 100 feet of the entrance. In 1995, the law was challenged and in February 1999, the Colorado Supreme Court stated that the law places reasonable restrictions on the time, place and manner of speech by anti-abortion demonstrators. The case was appealed to the U.S. Supreme Court, the issue being whether the law violated the First Amendment. The Court upheld the law by a 6-3 vote in its 2000 decision Hill v. Colorado. The majority reasoned that the law was not a speech regulation, but simply a “regulation of the places where some speech may occur.” The Court also emphasized that the law applied to all demonstrators regardless of viewpoint. The majority determined that the state’s interests in protecting access and privacy were unrelated to the suppression of certain types of speech. States and municipalities have special government interests in certain areas, including schools, courthouses, polling places, private homes and medical clinics, the Court said.
Massachusetts: In 2007, the state enacted a 35 foot fixed buffer zone in 2007. In 2009, the U.s. Court of Appeals for the First Circuit upheld the law.
Montana: Currently has a 36 foot fixed buffer zone and eight foot floating buffer zone.
Chicago: Has an 8 foot floating buffer zone which begins within 50 feet of the clinic entrance;
Buffalo and Rochester: Have 15 feet fixed zones and 15 feet floating zones. The law was challenged in the 1997 case, Schenck v. Pro-Choice Network of Western New York. Ultimately, the case came before the Supreme Court, where the Justices, in considering Madsen v. Women’s Health Center, ruled 8-1 to uphold the constitutionality of the fixed buffer zone, but not that of a floating buffer zone.
Melbourne, Florida: 36 foot fixed buffer zone around a clinic, 300 feet floating buffer zone around patients, and 300 feet buffer zone around the homes of the clinic’s employees. It was upheld by the Supreme Court of Florida but in 1994, in the case of Madsen v. Women’s Health Center, the U.S. Supreme Court upheld the fixed buffer zone but rejected the floating buffer zone and residential buffer zone.
Pittsburgh: In 2005, the City Council enacted a 15 foot fixed buffer zone and eight feet floating buffer zone. In 2009 a three judge appeals court panel found in Brown v. Pittsburgh that while either a fixed buffer or a floating buffer alone is constitutional, this combination of buffers is “insufficiently narrowly tailored,” and was thus unconstitutional.
Vallejo, California: A fixed buffer zone requiring protesters to remain across the street from a clinic was enacted in 1991. The Supreme Court of California upheld the injunction, and the case was taken to the U.S. Supreme Court in October 1994. But the case was sent back to the state court in light of the Supreme Court’s recent decision in Madsen v. Women’s Health Center decision. The California Supreme Court again upheld the buffer zone in July 1995. In 1997, the case again reached the federal Supreme Court in Williams v. Planned Parenthood Shasta-Diablo, and the Justices voted 6-3 to uphold the buffer zone.
West Palm Beach (FL): In 2005, the city enacted a 20 foot buffer zone. In 2006, U.S. District Judge Donald Middlebrooks found the law to be an infringement of the right to free speech and ordered that it be enjoined.
USE OF RACKETEERING LAWS
In February 2003, the U.S. Supreme Court ruled in Scheidler v National Organization for Women that pro-life activists could not be prosecuted under the Racketeering Influenced and Corrupt Organizations Act (RICO), a law drafted to counter organized crime and the Hobbs Act, a law intended to address economic damages caused by extortion. The Court reaffirmed this holding in 2006 in a unanimous decision.