7.

What Constitutes A FACE Violation

The elements of prohibited activities under FACE are enumerated at 18 U.S.C. § 248(a). Conduct that violates the statute can be prosecuted civilly and criminally. With respect to reproductive health care facilities, section (a)(1) prohibits: the use of: force, threat of force, or physical obstruction which; intentionally injures, intimidates or interferes with, or attempts to injure, intimidate, or interfere with a person; because that person is or has been, or in order to intimidate such person or any other person or class of persons, from seeking or providing reproductive health services. NOTE: Since the constitutionality of this provision is open to question in light of United States v. Lopez, 115 S.Ct. 1624 (1995), and the amendment to 18 U.S.C. § 247 makes reliance on this provision unnecessary, please contact the Criminal Section before charging this provision. See also the Criminal Resource Manual (Title 9) at 1112 (analysis of Lopez and the federal carjacking statute), and the Civil Rights Resource Manual at 10. In addition, 18 U.S.C. § 248(a)(3) prohibits: intentionally damaging or destroying property or attempting to do so; because reproductive health services are provided there. With respect to places of religious worship, section (a)(2) prohibits: the use of: force, threat of force, or physical obstruction which; intentionally injures, intimidates or interferes with, or attempts to injure, intimidate, or interfere with a person; who is lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship. 18 U.S.C. § 248(e)(4) defines a physical obstruction as "rendering impassible" or "unreasonably difficult or dangerous" ingress to or egress from a place that provides reproductive health services or places of religious worship. Although the statute does not set forth a specific definition of use or threat of force, the legislative history provides guidance on how to construe these terms. The legislative history also provides additional guidance on how to interpret the terms physical obstruction and damage or destruction of property. For example, according to the legislative history, "acts of force" include physical assaults, violent attacks, and tampering with the automobile of a physician who provides reproductive health services with the intent to cause an accident. S. Rep. No. 117, 103d Cong., 1st Sess. 22-23 (1993). With respect to the term "threat of force," although the legislative history only cites as an example a death threat, it further indicates that to viol ate FACE, threats must be of a magnitude where it is "reasonably foreseeable that the threat would be interpreted as a serious expression of an intention to inflict bodily harm." Id. at 23. In one recent case, the United States successfully argued in support of its motion for a preliminary injunction that, in context, pantomiming the act of shooting a doctor constituted a threat of force. United States v. White, 893 F.Supp. 1423, 1431 (C.D. Cal. 1995). Examples of "physical obstruction" listed in the legislative history include clinic blockades and invasions, pouring glue into clinic door locks, chaining people to entrances of buildings which provide reproductive health services, and placing nails on public roads leading to the clinic. Id. Finally, examples of "damage or destruction" of property in the legislative history include arson, bombings, chemical attacks and vandalism. Id. It is important to remember that many prohibited activities will fal l under more than one of these four categories. For example, physically restraining a provider of reproductive health services could constitute both unlawful physical obstruction and unlawful use of force. Id. The definitional section of the statute, 18 U.S.C. § 248(e), also provides definitions for the terms "intimidate", "interfere with," "reproductive health services," and "facility." It is important to remember that "reproductive health services" is defined broadly to include not only places that provide abortions but also, for example, places that provide counseling services that relate to pregnancy. It bears emphasizing that actual injury, interference, intimidation, or destruction are not necessary to establish a violation of FACE; attempts are enough. What is most important is the motive of the defendant—that he or she committed the prohibited activity because the victim of such conduct has provided or obtained or is seeking to provide or obtain reproductive health services, or in order to intimidate that person, or any other person from doing so. Under the express language of the statute, a person may violate FACE even if he or she is mistaken in the belief that the target of the conduct is or has been providing or obtaining reproductive health services. [updated February 1998]