Despite successful legal tests in both criminal and civil cases, the future of the new Freedom of Access to Clinic Entrances Act is now in hostile hands.
Decisions in six of the seven challenges to the constitutionality of the new law filed in federal court have held the law to be constitutional, with the Civil Rights Division of the Department of Justice defending in each case.
The opinion of the court so far has been that FACE does not interfere with First Amendment rights to freedom of speech or expression of religious freedom. Two of the cases are now on appeal in the U.S. Court of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia), and one is on appeal in the Eleventh Circuit (Alabama, Florida and Georgia).
Following the Republican sweep of Congress the success of FACE, both in withstanding constitutional challenges and in prosecuting violent offenders, may now be in jeopardy. With Rep. Henry Hyde, R-Ill., the likely candidate to chair the House Judiciary Committee and Rep. James Sensenbrenner, R-Wisc., as chair of the Judiciary's Subcommittee on Crime and Criminal Justice -- who both staunchly oppose abortion rights -- the future of FACE is now in hostile hands.
Sen. Orrin Hatch, R-Utah, has already singled out Assistant Attorney General for Civil Rights Deval Patrick's work as an area he will scrutinize as chair of the Senate's Judiciary Committee. And the symbolic fact that FACE is the first federal statute supporting abortion rights is sure to make it a target of anti-abortion groups who will put pressure on their new friends in Congress.
Paul Hill was sentenced to life in prison for violating the Freedom of Access to Clinic Entrances law in the shooting deaths of Dr. Bayard Britton and NOW activist Jim Barrett, and the wounding of June Barrett, July 29 in Pensacola, Fla.
Representing himself, Hill had indicated that he would use the "justifiable homicide" or "necessity" defense. However, U.S. District Judge Roger Vinson was forced to grant a prosecution motion disallowing the defense because Hill failed to file any court papers supporting it. Vinson left open the possibility of reconsidering his decision if Hill had been able to make appropriate arguments before his trial began.
Hill was later convicted under Florida law for murder, attempted murder and shooting at an occupied vehicle. The jury recommended the death penalty but the judge, who could opt for life in prison, has not yet sentenced Hill for the state crimes.
The first criminal charges under FACE were filed by the Justice Department in June against six individuals in Milwaukee for physically obstructing access to a clinic. Arguments in the trial began November 15. FACE also includes a private civil remedy that the clinic operators are using to sue for an injunction (to provide a buffer zone around the clinic) and compensation for damages.
In a pro-active move last September, Rep. Chuck Schumer, D-N.Y., chair of the House Judiciary's Subcommittee on Crime and Criminal Justice, held hearings on the implementation of FACE. Representatives from the law enforcement community who testified included: Assistant Attorney General for Civil Rights Deval Patrick; Assistant Attorney General for Criminal Division and head of the Justice Department's Task Force on Clinic Violence Jo Ann Harris; and James Brown from the Explosives Division at the Bureau of Alcohol, Tobacco and Firearms. Other panels, representing abortion providers, clinic operators and local police, and a panel of anti-abortion representatives also addressed the committee.
The members of Congress directed most of their questions to the panel from the Justice Department, urging them to more aggressively use FACE, as Congress grapples with how to stop clinic violence.
As the 104th Congress convenes, the success and continued strength of FACE may now depend on grassroots pressure on the Justice Department to enforce the law and on the Congress to let the Justice Department do its job.