In 1992, Bill Clinton declared that abortion should be “safe, legal, and rare.” While far from a pro-life position, that statement expressed the inchoate sense, held by most Americans, that abortion is at best a morally dubious enterprise that should be available, if at all, only within prescribed limits.
Thirty years later, Clinton’s words reflect the abortion policy of most European nations, which generally protect unborn life after 12 weeks’ gestation. The modern pro-abortion Left in the United States, on the other hand, has become increasingly extreme, adopting views that reflect the shocking, infanticidal abortion policies of North Korea and China, which permit abortion up to the moment of live birth.
That extremism now prevails not only within the halls of radical pro-abortion organizations, but within the corridors of federal power. And it is progressively threatening the civil liberties of pro-life Americans.
Nowhere is this more evident than in the lopsided and deeply troubling way in which the U.S. Department of Justice (DOJ) has chosen to enforce the Freedom of Access to Clinic Entrances (FACE) Act. That law makes it a crime to injure, intimidate, or obstruct any person from seeking or providing “reproductive services.” According to the DOJ, the FACE Act “protects all patients, providers, and facilities that provide reproductive health services, including pro-life pregnancy counseling services and any other pregnancy support facility providing reproductive health care.”
Since the 2022 leak of the U.S. Supreme Court‘s draft opinion in Dobbs v. Jackson Women’s Health Organization, there have been at least 87 attacks on pregnancy resource centers and 157 attacks on Catholic churches. Yet in 2022, the DOJ brought 26 charges under the FACE Act—all against pro-life individuals, for allegedly interfering with access to abortion.
Among the individuals pursued by the DOJ was Mark Houck, a pro-life activist who was arrested at gunpoint in front of his wife and seven children during an early morning raid of his home by 25 heavily armed FBI agents. His alleged crime, for which he was subsequently exonerated, involved pushing a pro-abortion agitator who was verbally abusing Houck’s minor son. More recently, FBI agents visited the home of the mother of Elise Ketch, a pro-life activist involved in exposing the potential killing of five pre-term babies in Washington, D.C. Ketch subsequently described the visit as an act of intimidation and part of a “coordinated onslaught” by the federal government against the pro-life movement.
Alarmingly, the federal government has acknowledged its policy is to embrace a maximalist approach to advancing abortion. On the same day Dobbs was decided, Attorney General Merrick Garland released a statement proclaiming that the “Justice Department strongly disagrees with the Court’s decision,” and vowing to work “tirelessly to protect and advance” abortion by enforcing the FACE Act. Weeks later, on July 12, 2022, the department formed a “Reproductive Rights Task Force” headed by Associate Attorney General Vanita Gupta, who characterized Dobbs as a “devastating blow to reproductive freedom.” Central to the task force’s mission is selective use of the FACE Act to “protect access to comprehensive reproductive health services.”
The DOJ’s Civil Rights Division, which enforces the FACE Act, is headed by Assistant Attorney General Kristen Clarke. Prior to her nomination, Clarke frequently criticized pro-life laws, condemned pro-life pregnancy centers as “predatory,” and testified to the U.S. Senate that Amy Coney Barrett was unfit to serve because she would likely rule Roe v. Wade unconstitutional. During a celebration of the division’s 65th anniversary in December, Gupta praised the work of the division, and Clarke in particular, highlighting the “increasing urgency or our work, including enforcement of the FACE Act.”
The DOJ’s ideological commitment to expanding abortion access post-Dobbs at all costs explains why, when faced with hundreds of attacks on pro-life pregnancy centers and Catholic churches, the DOJ responded with ramped-up prosecution of pro-life activists. Indeed, John Daukas, former acting assistant attorney general for civil rights, has observed that while the FACE Act as written strikes “a balance between protecting access to abortion and access to pro-life counseling” and services, “Assistant Attorney General Clark has upended that careful balance through biased implementation of the law.”
That biased implementation of the law threatens civil liberties. While liberty is lost when the state directly punishes lawful and protected speech, it more frequently is compromised when in terrorem action by the state—threats or intimidation—impose silence. The threat of criminal prosecution, of course, lies at the apex of such intimidation tactics.
The discriminatory application of the FACE Act by the Department of Justice post-Dobbs, coupled with the department leadership’s own extreme ideological commitment to abortion, suggests that politically imposed silence, not even-handed law enforcement, is the department’s goal when it comes to the pro-life community. And here, as in all cases where law enforcement is compromised by an extreme political agenda, the ultimate victim is freedom.
The views expressed in this article are the writer’s own.
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