Following Roe v. Wade, the 1973 landmark Supreme Court decision that formalized a woman's constitutional right to seek an abortion, protest activities surrounding abortion clinics increased. Much of this activity constituted legal protest and picketing, but reports of blockades, trespasses, and attempted arsons also grew.
In 1982, a reproductive health care physician and his wife were kidnapped in Illinois. In that same year, three reproductive health care clinics in Florida and Virginia were bombed. The perpetrators of these offenses were identified and convicted. After the 1983 bombings, there was a rash of bombings and arsons, including more than 25 incidents in 1984. In 1988, anti-abortion activists engaged in a series of blockades of reproductive health care clinics in major cities across the U.S. These clinic blockades drew national media attention and drained resources of local law enforcement agencies who were at times forced to make hundreds of arrests in sequential days on charges of disorderly conduct, trespass, and resisting an order of an officer.
In the early 1990s anti-abortion activists continued to create large-scale blockades, and the number of violent clinic- related incidents -- including bombings and murders -- increased. Since 1993, seven individuals who were employed in clinics as medical doctors, staff employees or patient or doctor escorts have been murdered in incidents motivated by anti-abortion animus. Several others have been dealt life-threatening injuries.
In response to the escalating violence, Congress enacted the Freedom of Access to Clinic Entrances Act, or FACE, in 1994. This statute established federal criminal penalties and civil remedies for violent, obstructionist, or damaging conduct affecting reproductive health care providers and recipients, and supplemented the penalties available under then-existing federal criminal statutes such as the Hobbs Act, the Travel Act, and federal arson and firearms statutes.
Although the number of large-scale blockades declined after the enactment of FACE, serious violence and threats toward clinics have continued. In addition to the offenses described above, offenders in 1998 and 1999 employed sham anthrax threats and butyric acid attacks in an attempt to frighten clinic employees and interrupt operations and clinics nationwide.
NATIONAL TASK FORCE ON VIOLENCE AGAINST HEALTH CARE PROVIDERS
On November 9, 1998, Attorney General Janet Reno established the Task Force on Violence Against Health Care Providers two weeks after the October 23, 1998, shooting death of Dr. Barnett Slepian, a reproductive health care provider who lived and worked in western New York.
The Task Force is led by the Assistant Attorney General for the Civil Rights Division of the Department of Justice. The Department of Treasury's Assistant Secretary for Enforcement represents that Department on the Task Force and actively participates in the oversight of the Task Force. The Task Force is staffed by attorneys and other staff from the Civil Rights and Criminal Divisions of the Department of Justice, and by investigators and other representatives from the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco, and Firearms, the U.S. Postal Inspection Service, and the U.S. Marshals Service.
The Attorney General charged the Task Force with the following functions:
- Coordinate national investigation and prosecution of incidents of abortion violence with a focus on connections that may exist between individuals involved in criminal anti-abortion activities;
- Serve as a clearinghouse for information relating to acts of violence against abortion providers, and collect and coordinate data identifying national trends related to clinic violence;
- Make security recommendations to enhance the safety and protection of providers;
- Assist the work of the U.S. Attorneys' local working groups on clinic violence;
- Enhance training of federal, state, and local law enforcement on issues relating to clinic violence; and
- Support federal civil investigation and litigation of abortion-related violence.
The Departments of Justice and Treasury, with assistance from other federal agencies, have committed extensive resources to the reduction of threats and violence against health care providers on a national level.
The following represent federal prosecutions of recent cases of violence directed at reproductive health care providers:
- A defendant pled guilty to making telephone threats to a clinic in Pennsylvania, in violation of FACE, and was sentenced to a period of incarceration and supervised release.
- A defendant was convicted of attempting to set fire to a clinic in North Dakota, in violation of federal arson statutes, and was sentenced to 60 months' incarceration.
- A defendant was convicted of setting fire to a clinic in South Dakota, in violation of federal arson statutes and FACE, and was sentenced to 60 months' incarceration and six months incarceration, respectively, to be served concurrently.
- A defendant pled guilty to making email threats to reproductive health care providers, in violation of federal threat statutes, and was sentenced to 16 months' incarceration.
- A defendant was convicted of telephoning a bomb threat to a clinic in Mississippi, and was sentenced to 13 months' incarceration.
- A defendant pled guilty to making a telephone threat to a clinic in Utah, in violation of FACE, and was sentenced to probation.
- A defendant was charged with setting fire to a New Mexico clinic, in violation of federal arson statutes. Trial is pending.
- Two defendants were charged with setting fire to a Sacramento medical center which houses a clinic, in violation of the Hobbs Act and federal arson statutes. Trial is pending.
- James Charles Kopp was charged by complaint with the murder or Dr. Barnett Slepian, in violation of FACE. Kopp remains a fugitive from justice, and is included in the FBI's Ten Most Wanted List.
OFFENSES AGAINST HEALTH CARE PROVIDERS
A variety of remedies, both criminal and civil, are available to combat clinic violence, depending on the circumstances of each case. The federal government may bring criminal charges under the Freedom of Access to Clinic Entrances Act ("FACE") (which prohibits threats of force, obstruction and property damage intended to interfere with reproductive health care services), or other federal criminal statutes where arson, firearms, and threats were also used. Where state statutes and local ordinances also prohibit certain types of conduct directed at health care providers, federal, state and local authorities work together to determine what charges are appropriate to bring. Federal or state civil actions, in certain circumstances, can also be filed by either the government or private individuals to obtain remedies not available through a criminal prosecution.
FEDERAL CRIMINAL LAWS
Freedom of Access to Clinic Entrances Act (FACE)
In 1994, in response to an increase in violence toward providers and patients of reproductive health services, Congress enacted the Freedom of Access to Clinic Entrances Act, commonly referred to as "FACE" or the "Access Act." FACE prohibits violent, threatening, damaging and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain or provide reproductive health services.
The statute creates federal jurisdiction and penalties for a person who: (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;
(2) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or
(3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship.
- "interfere with" means to restrict a person's freedom of movement. 18 U.S.C. § 248(e)(2)
- "intimidate" means to place a person in reasonable apprehension of bodily harm to him or herself or to another. 18 U.S.C. § 248(e)(3)
- "physical obstruction" means rendering impassable ingress to or egress from a facility or rendering passage to or from such a facility unreasonably difficult or hazardous. 18 U.S.C. § 248(e)(4)
- "reproductive health services" includes reproductive health services provided in:
- a hospital,
- physician's office, or
- other facility, and includes
- counseling, or
- referral services relating to the human reproductive system (including services relating to pregnancy or the termination of a pregnancy). 18 U.S.C. § 248(e)(5)
Courts have held that the Act's protections extend not only to physicians but also to clerical workers and escorts at reproductive health facilities.
Meaning of Terms
FACE contains fairly straightforward offense language -- requiring an intentional threat of force, use of force, obstruction or damage to property. What is unique about the statute, however, is the motive requirement. In addition to showing that an individual engaged in the offense conduct knowingly, the government (or a private plaintiff in some civil FACE cases) must show that an individual engaged in the offense conduct for the purpose of intimidating or interfering with persons seeking or providing reproductive health services. This type of intent evidence often is garnered through circumstantial evidence from individuals who know a subject or from the subject's conduct in advance of an incident. A subject's comments or conduct with respect to reproductive health services providers or recipients at the specific site of an offense or at other sites might be relevant to a determination of intent.
Conduct found illegal under FACE includes:
- physical attacks on clinic employees and patient escorts;
- attempted arson of clinic facilities;
- blockades of clinic entrances by persons or vehicles; and
- threats of bodily harm communicated to providers or recipients of services.
The penalty provisions of FACE are as follows:
(1) in the case of a first offense, [a person shall] be fined in accordance with this title, or imprisoned not more than one year, or both; and
(2) in the case of a second or subsequent offense after a prior conviction under this section, [a person shall] be fined in accordance with this title, or imprisoned not more than 3 years, or both;
except that for an offense involving exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be not more than six months, or both, for the first offense; and the fine shall . . . be not more than $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; and except that if bodily injury results, the length of imprisonment shall be not more than 10 years, and if death results, it shall be for any term of years or for life.
- Civil Remedy
The statute also provides for civil remedies for violations that meet the above-mentioned elements of a FACE case. These remedies are available to aggrieved private parties, the federal government, or state governments. Courts may impose temporary or permanent injunctive relief, compensatory and punitive damages, certain additional penalties where the government brings the action, and legal fees where a private plaintiff brings suit. The civil aspects of FACE will be discussed more fully below.
A number of federal cases brought under FACE have raised constitutional challenges on the basis of the First Amendment and the commerce clause, but federal courts consistently have upheld FACE against these constitutional challenges.
Other Applicable Federal Statutes
- Damage or Destruction of Property Used in Interstate Commerce, 18 U.S.C. § 844(i)
Section 844(i) of Title 18 establishes a federal criminal offense where an individual "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce . . . ." Since many reproductive health services clinic serve patients from other states and order medical supplies from other states, clinics may constitute property used in interstate commerce. Charges under § 844(i) frequently have been brought in cases of arson or bombing of reproductive health services clinics. The charge carries a penalty of 5 to 20 years absent physical injury and 7 to 40 years if injury results. Where death results from a violation of this statute, the offender is eligible for imposition of the federal death penalty.
- Use of a Firearm in the Commission of a Felony, 18 U.S.C. § 924(c)
Section 924(c) prohibits the use of a firearm in the commission of a felony. Penalties for violations are mandatory prison sentences: 5 years for possession of a firearm; 7 years if the firearm is brandished during the offense, and 10 years if it is discharged. Penalties for subsequent offenses are significantly increased, as are penalties for the use of certain illegal and proscribed firearms and silencers. The use of a firearm in the commission of a felony offense related to a clinic might warrant prosecution under § 924(c). Where death results from a violation of this statute, the offender is eligible for imposition of the federal death penalty.
- Use of the Mails or Commerce for Bomb or Fire Threats, 18 U.S.C. § 844(e)
Section 844(e) proscribes the use of the U.S. Mail, phone, or other instrument of interstate commerce to communicate a threat or to convey false information concerning a threat. Cases brought under § 844(e) generally involve bomb or arson threats. This offense carries a penalty of up to 10 years imprisonment.
- Threats Made by Use of Interstate or Foreign Commerce,18 U.S.C. §§ 875 and 876
These statutes prohibit the use of interstate or foreign commerce, generally telephones and the mails, to convey threats to kidnap or injure another. Increased penalties are provided where the threat is made with the intent to extort a "thing of value." Courts have found that actions taken for the purpose of harming a business (including a clinic) may constitute an intent to extort a thing of value. The Department of Justice recently used § 875 in charging a case involving computer-generated threats made by electronic mail to, among others, reproductive health care provider organizations. Violations of this statute carry a penalty of up to 20 years in prison.
- Interference With Commerce by Threats or Violence, 18 U.S.C. § 1951
Section 1951, more commonly referred to as the "Hobbs Act," provides for penalties of up to 20 years for conduct that obstructs, delays or affects commerce by means of robbery or extortion. The statute also covers attempts to commit these acts, conspiracy to commit the acts, and any threats made to cause injury or damage to a person or property in order to commit these acts. Attempts to coerce a reproductive health care provider to limit or halt operations may constitute a violation of this statute.
- Interstate or Foreign Travel or Transportation to Aid in Racketeering Enterprises, 18 U.S.C. § 1952
More commonly referred to as the "Travel Act," section 1952 sets a penalty of up to 5 years for persons who either travel in interstate or foreign commerce, or use the mails or other facility in interstate or foreign commerce, to commit any crime of violence in furtherance of some unlawful activity, or to promote, manage, establish, carry on or facilitate the promotion, management, establishment or carrying on of any unlawful activity. In sum, this statute makes it illegal to travel between states, or between another country and the U.S., in order to commit illegal acts. Traveling across state lines to perpetrate a crime of violence against a reproductive health care provider might warrant prosecution under § 1952.
In addition to the specific statutes outlined above, other federal statutes may apply to other instances of illegal criminal behavior directed at reproductive health care providers.
CONCURRENT JURISDICTION WITH STATE AND LOCAL AUTHORITIES
Many criminal activities that affect reproductive health care providers constitute crimes at the federal, state, and local level. Many jurisdictions have local ordinances for trespassing, disorderly conduct, and stalking, for example, that may overlap with coverage of that same conduct by a federal statute. Some states have adopted statutes almost identical to FACE, providing for concurrent jurisdiction in many cases.
Charging decisions involving offenses related to reproductive health care providers generally are made by the United States Attorney in cooperation with state and local authorities.
In addition to criminal penalties that may arise in relation to conduct affecting reproductive health care providers, federal law provides for civil remedies where private parties or the federal or state governments bring suit.
Civil actions under FACE may be brought by an aggrieved private party (such a health care provider), the United States Attorney General, or the Attorney General for any state. As a general matter, establishing a civil violation under FACE requires proof of the same elements outlined in the criminal discussion of the statute. The central difference is that in a civil case, the private or public plaintiff need not prove the case beyond a reasonable doubt but only by a preponderance of the evidence, a considerably weaker standard. In addition, the remedies available in the civil context differ. Civil remedies may include injunctive relief, civil penalties, actual or statutory damages, punitive damages, and attorney fees for actions which are not brought by a government.
The U.S. Department of Justice has secured a number of important decisions using the civil remedies of FACE to win permanent injunctive relief against persons who violated the Act in the context of blockades, "lock-and-blocks", threats, and other obstructive conduct. The government has secured judgments that bar specific defendants from entering the property of certain clinics, and the government has secured rulings requiring "buffer zones" around clinics in order to balance the interests of legitimate and protected protest and the rights of clinics to operate their legal businesses.
Private plaintiffs successfully employed the civil provisions of FACE as well as the civil provisions of the Racketeer and Corrupt Organizations Act ("RICO") in a case brought in the federal district court for the District of Oregon. Planned Parenthood of the Columbia/Willamette, on behalf of a number of aggrieved physicians, brought suit against persons alleged to have been involved in creation and dissemination of "Wanted" posters in 1993. These posters suggested that local abortion providers were engaged in a criminal conduct, and they offered a reward for information related to the doctors or their activities. In later years, some of the same defendants contributed to a web site that identified reproductive health care providers and specific information regarding their homes and families. After a lengthy trial regarding the federal civil violations, a jury found the defendants liable to varying degrees for compensatory and punitive damages of over $107 million. This case is presently on appeal to the Ninth Circuit Court of Appeals.
For more information regarding the civil aspects of the Freedom of Access to Clinic Entrances Act, visit the Special Litigation Home Page.
You will find below security tips that you may wish to incorporate into various aspects of your daily life. Keep in mind that many local law enforcement agencies offer free home and business security surveys. You should contact your local precinct, substation or office to avail yourself of this service.
- Do not put your name on the outside of your residence or mailbox.
- Have good outside lighting.
- Control vegetation to eliminate hiding places.
- Entrances and exits should have:
- Solid door with deadbolt locks.
- One way peep-holes in doors.
- Bars and locks on skylights.
- Restrict the possession of house keys.
- Change all of the locks if keys are lost or stolen and when moving into a previously occupied residence.
- Lock all entrances at night, including the garage.
- Keep the house locked, even if you are at home.
- Develop friendly relationships with neighbors.
- Arrange for an unlisted/unregistered home telephone number (this limits accessibility to home address)
- Obtain Caller ID on all phone lines.
- Don't leave notes on doors.
- Use a timer to turn lights on and off at varying times and locations.
- Leave a radio playing while you are away (best with a timer).
- Notify the police or a trusted neighbor of your absence.
Security In Your Business or at Work
- Keep bomb threat/personal threat checklists by each telephone.
- All staff members should familiarize themselves with the form(s).
- Each form should have space at the top for:
- Telephone number the threat was received on.
- Exact time of call.
- Exact words of the caller.
- Install dead bolt locks on office doors leading to hallways and other public areas. Consider installing a "buzzer" entry door system.
- Managers should issue and control keys, conduct semi-annual inventories, and have locks changed when keys are missing.
- Have offices cleaned during business hours.
- Ensure that cleaning personnel do not have access to security alarms or authorization to disarm them.
- Instruct all employees on operation of your security system.
- Do not allow visitors access to secure areas.
- Do not allow persons visiting one office to have access to other offices or areas.
- Immediately report persons who appear unannounced in your work area or who say they "opened the wrong door" or "were looking for another office."
- Do not admit unexpected repairmen or delivery men.
- Check with a reputable security company for information on available equipment and services.
Security in Vehicles
- Do not use "vanity" plates that identify you by name or business affiliation.
- Do not have your name or official title displayed at your office parking place.
- Keep vehicle in good repair--you don't want it to fail when you need it most.
- Keep gas tank at least ½ full at all times.
- Park in well-lit areas.
- Always lock your car.
- Do not leave your car on the street overnight, if possible.
- Never get out without checking for suspicious persons. If in doubt, drive away.
- Leave only the ignition key with the parking attendants.
- Don't allow entry to the trunk unless you're there to watch.
- Use remote garage opener if available. Enter and exit your car in the security of the closed garage.
- Before leaving buildings to get into your vehicle, check the surrounding area to determine if anything of a suspicious nature exists. Display the same wariness before leaving your vehicle.
- Before entering vehicles, check for suspicious objects on the seats and floor.
- Guard against predictable routines by varying times, routes and modes of travel.
- Avoid dark roads and alleys.
- Know locations of safe havens along routes of routine travel.
- Always ride with seat belts buckled, doors locked and windows closed.
- Do not allow your vehicle to be boxed in; maintain at least 8 feet between you and the vehicle in front and avoid the inner lanes.
- Be alert while driving or riding.
- Know how to act if surveillance is suspected or confirmed.
- Circle the block for confirmation of surveillance.
- Do not stop or take other actions which could lead to confrontation.
- Do not drive home if you are being followed.
- Get description of driver and other passengers.
- Go to the nearest safe haven. Report incident to local police.
Public Transportation and Travel
- Vary mode of commercial transportation.
- Select busy stops.
- Use different taxi companies.
- Don't let someone you don't know direct you to a specific cab.
- If possible, specify the route you want the taxi to follow.