Written Testimony of Stephen M. Crampton, Senior Counsel, Thomas More Society Before the Subcommittee on the Constitution and Limited Government of the Committee on the Judiciary, Dec 18, 2024

Chairman Roy, Ranking Member Scanlon, and Members of the Subcommittee, I am Stephen Crampton, Senior Counsel for the Thomas More Society, a national non-profit public interest law firm championing life, family, and freedom. Thank you for the opportunity to testify here today.

‍FACE WAS ALWAYS ABOUT ABORTION.

The Freedom of Access to Clinic Entrances Act (“FACE”) was from its inception always about abortion. Its impetus was the Supreme Court’s decision in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993), decided January 13, 1993. Bray held that abortion clinics and abortion rights organizations could not use the civil Conspiracy to Interfere with Civil Rights statute, 42 U.S.C. § 1985(3), to enjoin pro-life demonstrators from obstructing access to abortion clinics because opposition to abortion was not akin to race discrimination and so did not qualify as an “otherwise class-based, invidiously discriminatory animus [underlying] the conspirators’ action,” which Supreme Court precedent required.

The High Court further held that the abortion clinics’ claim could not be based on the “right to abortion” because that right – since overturned by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) – protected only against state interference, not private interference.

In response to the Supreme Court’s holding in Bray, Senator Ted Kennedy introduced the FACE Act only two months later, on March 23, 1993. As introduced, the bill recited in its Statement of Findings and Purpose that “in the Bray decision, the Court denied a remedy under such section [42 U.S.C. § 19875(3)] to persons injured by the obstruction of access to abortion services” and that “legislation is necessary to prohibit the obstruction of access by women to abortion services.”

The bill’s stated purpose was “to protect and promote the public health and safety by prohibiting the use of force, threat of force or physical obstruction to injure, intimidate or interfere with a person seeking to obtain or provide abortion services, and the destruction of property of facilities providing abortion services..."

Similarly, the operative section setting forth the prohibited conduct (which eventually became Sec. 248(a)(1) and (2)) explicitly referred to abortion:

     (a) Prohibited Activities.--Whoever—

             (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts toinjure, 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

                   (A) obtaining abortion services; or
                   (B) lawfully aiding another person to obtain abortion services; or

             (2) intentionally damages or destroys the property of a medical facility or in which a medical facility is located, or attempts to do so, because such facility provides abortion services, shall be subject to the penalties provided in subsection (b) and the civil remedy provided in subsection (e)."

Again, the testimony and evidence introduced to establish the need for the bill pertained exclusively to abortion. As reported out of the Senate Committee on Labor and Human Resources on July 29, 1993, Section IV, entitled “NEED FOR THE LEGISLATION,” explained:

     A nationwide campaign of anti-abortion blockades, invasions, vandalism and outright violence is barring access to facilities that provide abortion services and endangering the lives and well-being of the health care providers who work there and the patients who seek their services. This conduct is interfering with the exercise of the constitutional right of a woman to choose to terminate her pregnancy, and threatens to exacerbate an already severe shortage of qualified providers available to perform safe and legal abortions in this country.

There was no mention of protecting the right of access to places of religious worship until Senator Hatch offered a last-minute amendment to the bill. It was essentially an afterthought.

That explicit reference to “abortion services” was later modified to “reproductive health services” in the final bill does not alter the fact that it was always primarily about abortion.

 There is no federal right to abortion, and because the reason for FACE has ceased, FACE itself should cease to exist.

In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey and declared that there is no federal right to abortion. “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” 597 U.S. at 231.

There is therefore no federal constitutional right to abortion, and the very reason forFACE’s existence no longer exists. Under the well-established doctrine of cessante ratione legis, cessat ipsa lex, “when the reason for a law ceases, the law itself ceases,” FACE should be repealed.

 FACE is an unconstitutional content-based restriction on speech.

Moreover, FACE has not only lost its purpose, it has also lost its constitutional validity. Under the Supreme Court’s more recent precedents on content-based laws, FACE is plainly unconstitutional because it discriminates against expressive activity based on content and/or viewpoint.

As the actions of Paul Vaughn and the other FACE defendants convicted under theBiden regime make clear, they were engaged in quintessential expressive activity such as praying, singing hymns, and speaking to the police and would-be customers of the abortion clinics. The First Amendment protects expressive conduct just as it protects pure speech.

Under the analysis set forth in Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015), FACE is an impermissible content-based restriction on speech. Reed counsels that a law is content based on its face if it “target[s] speech based on its communicative content;” that is, it “applies to particular speech because of the topic discussed or the Idea or message expressed.” 576 U.S. at 163; see also McCullen v. Coakley, 573U.S. 464 (2014): a statute “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred.” Id. at 479 (quoting F.C.C. v. League of Women Voters of California, 468 U.S. 364, 383 (1984)).

FACE does precisely that: It does not prohibit all acts of obstruction of individuals seeking access to reproductive health care facilities, but only those undertaken because that individual is “obtaining or providing reproductive health services.” 18U.S.C. § 248(a)(1) (emphasis added). It targets one particular motive, namely the pro-life motive, and thus requires the authorities to inquire into the content of any message the perpetrator might wish to communicate to determine whether a violation has occurred.

The Senate was clear in its discussions and careful in its drafting to specifically exclude certain actors from the reach of FACE:

Thus, for example, if an environmental group blocked passage to a hospital where abortions happen to be performed, but did so as part of a demonstration over harmful emissions produced by the facility, the demonstrators would not violate this Act (though their conduct might violate some other law, such as a local trespass law). In that example, the demonstrators’ motive is related to the facility's emissions policy and practices and not to its policy and practices on abortion-related services. The Committee has concluded that inclusion of the motive elements is important to ensure that the Act is precisely targeted at the conduct that, as the Committee's record demonstrates, requires new Federal legislation; deliberate efforts to interfere with the delivery of abortion-related services.

FACE is therefore content based

A tale of two cases: Mark Houck and Mark Crosby.

Mark Houck case – FACE applies.

This Subcommittee has heard the testimony of our former client Mark Houck, who, like Paul Vaughn, was arrested at gunpoint in front of his wife and small children for an alleged violation of FACE. In Mark’s case, he was alleged to have physically assaulted a pro-abortion “escort”, B.L., on the sidewalk near an abortion clinic“ because B.L. was and had been providing reproductive health services.” Although thankfully Mark Houck was found not guilty after a jury trial, the BidenAdministration’s Indictment was valid because Mark Houck’s pro-life viewpoint was plausibly alleged to have been his motivation for engaging with B.L.

FACE was carefully crafted to target only pro-life advocates. Under FACE,“reproductive health services” are narrowly defined to include only those services provided in a facility:

The term “reproductive health services” means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, 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) (emphasis added).

Because the pro-abortion “escort” was affiliated with the nearby Planned Parenthood facility, he was presumably protected under FACE.

Mark Crosby case — FACE does not apply

But contrast that with the case of another Thomas More Society client, Mark Crosby, a 73-year-old pro-life advocate who was brutally beaten on May 26, 2023 by a pro-abortion zealot outside a Planned Parenthood abortion clinic in Baltimore, Maryland. While Mr. Crosby’s prayers and efforts to peacefully and lawfully interpose on behalf of innocent children being killed at the clinic may constitute“ counseling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy” under FACE, they are not connected to a “facility” and therefore Mr. Crosby is not protected under the Act.

Thus, while Mark Houck was subjected to a SWAT-like arrest and was forced to undergo harsh prosecution and a jury trial in federal court, facing serious penalties under FACE, Mark Crosby’s assailant cannot be prosecuted under FACE.

FACE is and was always intended to operate solely against pro-life individuals. As such, it is an unconstitutional content-based restriction on speech.

FACE is Unconstitutional as Applied Because it has Been Selectively Enforced on the Basis of Viewpoint Discrimination

Although the Government has broad discretion in enforcing criminal laws, a “prosecutor’s discretion is ‘subject to constitutional constraints.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Batchelder, 442 U.S.114, 125 (1979)). One such constraint is that the Government may not enforce a law based on its “disapproval of a subset of messages it finds offensive,” because “[t]hisis the essence of viewpoint discrimination.” Matal v. Tam, 582 U.S. 218, 248 (2017)(Kennedy, J., concurring in part). Yet that is what the Biden Administration has done here.

As this Subcommittee knows, FACE in theory protects churches and pregnancy resource centers in the same way it protects abortion facilities. But the Biden Administration has refused to prosecute almost any of the perpetrators of the hundreds of attacks on churches and pro-life pregnancy resource centers since the Supreme Court announced the Dobbs decision in 2022.

The most recent data shows that since the Dobbs decision was leaked in early May 2022, there have been 95 attacks on pregnancy resource centers and pro-life groups, including fire bombings and some 436 acts of hostility against churches in 2023 alone. Yet to date, according to the DOJ’s own data, only four pro-abortion activists have been brought to justice.

By contrast, pro-life advocates continue to be vigorously prosecuted, even though virtually all their cases involve incidents that occurred years ago. For example, the incident for which Mark Houck was arrested occurred on October 13, 2021, but he was not arrested until September 23, 2022, almost a year later – but within months of the Supreme Court’s decision in Dobbs, released June 24, 2022.

Similarly, in Tennessee, the incident which led to Paul Vaughn’s arrest occurred onMarch 5, 2021, but he was not arrested until October 5, 2022, nineteen months later– but again, only months after Dobbs was decided.

Again, in Michigan, the incident which gave rise to the prosecution of Calvin Zastrow and seven other pro-life defendants there occurred on August 27, 2020, but they were not indicted until February 15, 2023, some 2 1⁄2 years later. But in the interim, Dobbs had been decided.

In addition, in each of these cases the local authorities had made some arrests, filed charges, and concluded the matter long before the Biden Administration acted. There was no need for the federal government to get involved at all.

Paul Vaughn’s Case

In Mr. Vaughn’s case in particular, he was not arrested at the scene, although several other pro-life advocates were arrested. Mr. Vaughn did not personally obstruct or interfere with any patients, but instead remained a good distance away from the entrance, engaged in discussions with the police on site and communicated between the police and the peaceful demonstrators.

At no time did he obstruct or interfere with anyone seeking access to the abortion clinic. In fact, he never even spoke to a clinic client or employee. Instead, his actions were concentrated on educating the police as to what a “rescue” involved and then assisting as a messenger between the police, situated at one end of the second-floor hallway farthest away from the clinic entrance, and the pro-life advocates, who were situated at the other end of the hallway, in front of the entrance.

The Government accused Mr. Vaughn of aiding and abetting the pro-life defendants at the entrance and of being a co-conspirator by intentionally engaging with the police in hopes of delaying their arrest of the pro-life individuals in front of the entrance. One pro-life leader, Chester Gallagher, was captured on video with his arm around Mr. Vaughn (which he livestreamed via Facebook) saying that Mr. Vaughn’s role was to delay the police by talking with them.

While Mr. Vaughn did not take the opportunity to rebut Mr. Gallagher’s statement, he was being summoned back to the police and at all times engaged in sincere and good faith discussions with them.

In fact, the Chief Negotiator for the police, Travis Watkins, testified at trial in Mr.Vaughn’s defense. He said that Paul Vaughn was friendly and pastoral in his dealings with the police and that he saw nothing in Mr. Vaughn’s demeanor or actions that suggested he was being false, despite his extensive training and experience as a negotiator. He further testified that Mr. Vaughn was cooperative; and never disobeyed a single request the police made of him. Instead, according to Travis Watkins, Mr. Vaughn was definitely helpful and not a hindrance.

There was no need to have arrested Paul in the first place, and certainly no good reason to employ lethal weapons and the over-the-top show of force they did.

The FBI’s Care-less Approach to the CompassCare Case.

In the case of CompassCare Pregnancy Services in Buffalo, New York, another Thomas More Society client, a pro-abortion activist firebombed the facility in the early morning hours of June 7, 2022. It was the second pregnancy resource center to be firebombed since the leak of the Dobbs decision overturning Roe; the first occurred on Mother’s Day, May 8, 2022, in Madison, Wisconsin.

The perpetrator was seen on surveillance video taken by CompassCare, which CompassCare promptly turned over to local law enforcement. But the local police, working with the FBI, stonewalled CompassCare after reviewing the video and refused to give it back and appeared to take little or no action to investigate the matter. CompassCare finally had to sue and litigate the case for six months just toregain control of its own video. The police invited a settlement, but only on condition that CompassCare agree not to show the video to the public for two years.

Worse still, due either to the apparent lack of interest or ability in the FBI and the local police in solving the crime – after all, as Attorney General Merrick Garland testified, they “are doing this at night in the dark” -- CompassCare was forced to hire its own private investigator to pursue the perpetrators.

To summarize: Before Dobbs, the only criminal FACE prosecutions tended to involve violent or threatening activity. After Dobbs, every peaceful pro-life advocate who could be arguably charged with a FACE violation was rounded up and had the proverbial book thrown at her. No matter whether it was an 89 year old survivor of a Soviet death camp like Eva Edl, or a 75 year old grandmother in failing health like Paulette Harlow, or 76 year old Joan Andrews Bell, a pro-life hero who has laid down her life on behalf of the unborn since Roe v. Wade was decided in 1973, the Biden Administration would stop at nothing to see them put away behind bars for years.

While the Biden DOJ was busy hunting down peaceful pro-life advocates for events which had occurred long before, violent pro-abortion activists were engaged in an ongoing campaign of vandalism,

Furthermore, not only were the eight pro-life advocates in Michigan, the nine in Washington, D.C., and the eleven in Middle Tennessee, and Mark Houck in Philadelphia prosecuted for events which had occurred many months and in some cases years before, but in the cases of all except Mark Houck they were also charged with a felony Conspiracy Against Rights violation of 18 U.S.C. § 241, carrying with it a maximum sentence of up to ten years in prison and a fine of up to $250,000.

In our extensive research of this outrageous and vindictive piling on of charges we have not found a single example of a peaceful demonstration involving advocates motivated by sincere and in most cases deeply religious convictions treated so harshly. Never before in the history of our nation have we seen a protest movement opposed by our own government in such an extreme and unjustified manner.

Had the civil rights movement of the 1950’s and ‘60’s had been persecuted so severely it likely would never have succeeded. Imagine if the federal government had come down as hard on the sit-ins at lunch counters as the Biden Administration has come against the pro-life sit-ins at abortion clinics.

The two-tiered justice meted out by this Administration could not be more pronounced. It has demonstrated a “pattern of unlawful favoritism” that “evince[es]. . . intentional discrimination on the basis of viewpoint.” Brown v. City of Pittsburgh, 586 F.3d 263, 293-94 (3d Cir. 2009).

After Dobbs, Congress lacks Authority to Regulate the Noneconomic IntrastateActivity of Pro-life Advocates.

The foundation on which FACE was built is the invalid premise that abortion is a constitutional right. That foundation has been decimated by Dobbs. Because FACE no longer protects abortions, it can no longer be justified on the basis of “anti-abortion” activity undertaken decades ago.

Several federal appellate courts sustained FACE as a valid exercise of Congress’Commerce Clause authority before Dobbs, relying, for example, on the rationale that“ violent and obstructive acts” that were [m]otivated by antiabortion sentiment”thereby “intimidated a number of physicians from offering abortion services.”

After Dobbs, as noted above, this rationale collapses, because “anti-abortion”sentiment is not a valid basis for legislating; abortion is no longer a federal concern.As the Supreme Court emphatically stated in Dobbs, “the authority to regulate abortion must be returned to the people and their elected representatives.” 597 U.S.215, 292.

Under principles of federalism, “[t]he Constitution requires a distinction between what is truly national and what is truly local.” United States v. Morrison, 529 U.S.598, 617 (2000). FACE does violence to that distinction, because Congress may not“regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.” Id. (emphasis added). A fortiori, Congress may not regulate noneconomic, peaceful criminal conduct like the sit-ins that violate FACE based solely on their aggregate effect on interstate commerce.

Tacking on the Conspiracy Against Rights Charge was Perhaps the GreatestAbuse of All, and was also Likely Unconstitutional.

As great as the abuse of FACE was in these cases, I submit that it pales in comparison to the use of the Conspiracy Against Rights statute, 18 U.S.C. § 241, to transform a misdemeanor FACE violation with a maximum penalty of six months in prison and a fine of up to $10,000 into a felony with a maximum penalty of ten years imprisonment and a fine up to $250,000.

The utter lack of proportion between the underlying crime and its penalty and the conspiracy and its penalty is breathtaking and virtually unprecedented. As Judge Posner of the Seventh Circuit has observed, “[t]he proper punishment for conspiracy is a function of the gravity of the crime the defendants conspired to commit.” United States v. D’Antoni, 874 F.2d 1214, 1221 (7th Cir. 1989) (Posner, J., concurring). Judge Posner further counseled that “[t]he principle that criminal sentences should be related to the gravity of the criminal conduct is [important], and deserves Congress's attention. Inadequate punishment can work a miscarriage of justice, just as excessive punishment can.”

The punishment inflicted on these men and women of great courage and conviction is grossly excessive and unjust.

In a nation that doesn’t simply tolerate political dissent and protests but celebrates them, the use of this conspiracy statute against these individuals who were willing to interpose themselves on behalf of the most innocent and helpless children is abhorrent and indefensible. It was purely punitive, intended to instill abject fear in any who would even consider standing up to the abortion industry, and to suppress the expression of pro-life views.

The Conspiracy Against Rights Felony Charge is Incompatible with FACE’sIndependent Proscription on Non-Violent Physical Obstruction and Therefore Unconstitutional as Applied.

Earlier this year, the Supreme Court confirmed that in order to “respect the prerogatives of Congress in the quintessentially legislative act of defining crimes and setting the penalties for them,” the scope of a federal criminal statute must be understood in light of its “context.” Fischer v. United States, 603 U.S. 480, 486, 497,498 (2024) (internal quotes omitted). “[T]he inquiry boils down to what Congress intended, as divined from text and context.” Health & Hosp. Corp. of Marion Cnty.v. Talevski, 599 U.S. 166, 187 (2023).

Under these principles, the Conspiracy Against Rights statute, which was enacted in1870 as part of the Ku Klux Klan Act, is incompatible with FACE and cannot lawfully be applied against these nonviolent defendants.

Congress adopted the FACE Act in large part “to prevent the use of blockades” outside and inside of abortion facilities, according to both the Senate and House Committee Reports en route to sending their respective versions to the full Congress. See S-Rep. 103-117 at *2, *7 (1993) (stating that the first purpose was to stop “blockades,” explaining that “[t]ypically, dozens of persons . . . trespass onto clinic property and physically barricade entrances and exits by sitting or lying down or by standing and interlocking their arms”) (emphasis added); H.R. Rep. 103-306 at *699,*704 (1993).

FACE has a detailed enforcement scheme to punish such conduct. It provides that even violent first-time offenders who do not cause bodily injury or death cannot be imprisoned “more than one year” for a first-time offense or “more than 3 years for a subsequent offense.” 18 U.S.C. § 248(b). However, nonviolent first-time offenders of FACE’s prohibition on “physical obstruction” cannot be imprisoned “more than six months.” 18 U.S.C. § 248(b)(1)-(2). In other words, the plain text of the statute confirms that individuals who participate in a group-oriented nonviolent clinic blockade cannot be convicted of a felony, for a first-time offense (i.e., punishable by more than one year in prison).

Indeed, to obtain support from certain reluctant Republicans, Senator Kennedy, the primary sponsor of the bill, assured them “that if an individual does violate this law for the first time, it is not a felony, but if they are going to be involved in repetitive violations, it is going to be a felony.”

In short, the Conspiracy Against Rights statute should never have been used under the circumstances of these nonviolent, first offense sit-ins.