Reproductive Rights Activists Charged Under Law Intended to Protect Abortion Clinics

Graffiti on a Christian pregnancy center that does anti-abortion counseling in Portland, Oregon on June 27, 2022.

Photo: John Rudoff/Sipa USA via AP

The Freedom of Access to Clinic Entrances, or FACE, Act was not written in response to acts like those Caleb Freestone and Amber Smith-Stewart are alleged to have committed. Instead, the law was meant to deal with the unchecked violence of people on the opposite side of the same issue.

Congress passed the FACE Act in 1994, following the assassinations of two abortion doctors and a bodyguard outside two clinics in Pensacola, Florida. At that time, anti-abortion groups nationwide were organizing aggressive mass clinic blockades, sometimes with many hundreds of people. Vehicles, chains, and locks were used to terrify abortion seekers and thwart their ability to enter clinics; threats of violence against clinic workers and patients were ubiquitous.

The FACE Act, which passed with bipartisan support, made the physical obstruction of clinics a federal offense, as well as threats of force and violence against clinic workers and clinic property. In its 30 years on the books, it has been used sparingly. Until recently, the roughly 100 cases filed were all against people who made targeted threats against individual abortion clinic workers, perpetrated arson and shooting attacks at clinics, and attempted physical blockades to stop abortions.

Now this law, introduced in response to very real threats and deadly violence against abortion providers, is being used to prosecute two reproductive rights activists, who allegedly spray-painted the outside walls of misleading and dangerous “crisis pregnancy centers” — known as CPCs — in Florida. Freestone, 27, and Smith-Stewart, 23, face up to 12 years in prison for graffiti, which the Justice Department is calling a threat to “reproductive health services facilities.”

It is both a grim application of one of the few federal laws that has served imperiled abortion clinics and a gross misuse of the term “reproductive health services” to describe what the facilities in question provide.

“This is yet another example of the government disproportionately charging alleged activists with serious crimes in an attempt to deter political opposition to the fall of Roe post Dobbs,” Lauren Regan, the director of the Civil Liberties Defense Center and attorney for defendant Smith-Stewart, told me. “Tagging private property might be a violation, but it should not be a federal crime.”

The graffiti in question — a level of property damage fixable with a coat of paint — was part of a series of similar small actions against anti-abortion centers across the country following last year’s leak of the Supreme Court decision to overturn Roe. Slogans including, “If abortions aren’t safe, neither are you,” and, “We are everywhere,” were daubed on exterior walls of fake clinics and anti-abortion network headquarters. Online, communiques from Jane’s Revenge — an umbrella name for a political stance, not an organized group — claimed responsibility for the independent acts.

For decades, leftists have used the tactic of acting autonomously under a unifying banner to signify solidarity with a broader cause. Those spray-painting in the name of Jane’s Revenge in Wisconsin, for example, almost certainly have no direct connection or knowledge of those doing the same in Florida or elsewhere. The goal is to spread a shared message and suggest a movement’s latent power. Yet, for as many decades, right-wing media pundits and law enforcement have responded with paranoid, if not purposeful, miscomprehension.

Fox News has dubbed Jane’s Revenge an “extremist group.” The FBI is currently offering a bounty for information on Jane’s Revenge activities, pledging “up to $25,000 for information leading to the identification, arrest, and conviction of the suspect(s) responsible for these crimes.” The crime, that is, of low-level property damage, transmuted into potential federal offenses through a mangling of the FACE Act. The indictments in Florida are part of a broader campaign by law enforcement to draw a false equivalence between anti-abortion zealots and those fighting against the decimation of our reproductive freedoms.

“Despite a rapidly growing number of clinic invasions, bullets fired through clinic windows, and other acts of violence, FACE is rarely even used by the DOJ to charge anti-abortion protesters who disrupt care at licensed clinics.”

“The level of bothsideism here by the DOJ goes beyond absurdity. Frankly, this is something I would have expected to see from the Trump Administration,” said Hayley McMahon, a public health researcher who studies abortion and criminalization at Emory University. “Despite a rapidly growing number of clinic invasions, bullets fired through clinic windows, and other acts of violence, FACE is rarely even used by the DOJ to charge anti-abortion protesters who disrupt care at licensed clinics.” McMahon told me that the Justice Department is “setting an incredibly irresponsible precedent for recognizing CPCs as medical facilities that provide reproductive health services.”

The Justice Department’s statement on Freestone and Smith-Stewart’s indictments was as misleading as the “crisis pregnancy centers” that the defendants allegedly targeted. It claims that “the defendants targeted pregnancy resource facilities and vandalized those facilities with spray-painted threats” and that they used “threats of force” against employees at one clinic “because those employees were providing or seeking to provide reproductive health services.” This is laughable: It is precisely because these anti-abortion centers do not provide reproductive health services that they have become targets. They are part of a well-funded, Republican- and Supreme Court-supported machinery of forced births, criminalization, and pregnancy-related deaths.

The use of the FACE Act in these cases is an affront to the law’s spirit but not its letter. The statute’s wording applies to all “reproductive health centers,” a label which the fake clinics have been odiously permitted to bear. As the Justice Department’s website notes, “The FACE Act is not about abortions. The statute 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.”

“Crisis pregnancy clinics” should not be afforded such legal protections. They are anti-abortion centers, dedicated to dissuading people from getting abortions with highly deceptive practices. They pose as reproductive health clinics and “pregnancy help centers,” often offering pregnancy tests and ultrasounds to give the veneer of medical legitimacy, but these well-funded, sometimes taxpayer-supported, Christian organizations have the explicit mission to stop abortions.

As noted in a New York Times opinion essay on the centers, “A 2014 study concluded that 80 percent of C.P.C.s included at least one false or misleading piece of medical information on their websites. Also, it appears that some C.P.C.s could share women’s private health information with national anti-abortion networks, something that could be especially concerning in states that criminalize abortion post-Roe.”

Nationwide, the centers outnumber abortion clinics 3-to-1. Their presence is particularly harmful in a state like Florida, which, given its — albeit limited — ability to provide legal abortions, has been a destination state for those seeking abortions in the South, where a post-Roe world has long been the de facto reality, only worsening since Dobbs.

“Whether or not you believe the alleged vandals were in the wrong, the fact remains that crisis pregnancy centers are not medical facilities providing reproductive health services,” said McMahon, the public health researcher, noting that the centers often “portray themselves” as medical facilities by offering pregnancy tests and ultrasounds performed by nonclinician volunteers. “There is extensive documentation of their using these strategies to coerce both people who want abortions and people who want to parent.”

The federal government should be using every possible resource to aid and protect abortion providers and seekers. Instead, the overreaching Florida prosecutions and FBI focus on Jane’s Revenge read as a spineless gesture to appease congressional Republicans, who last year complained about the use of the FACE Act solely against anti-abortion extremists. As McMahon noted, anti-abortion Sen. Thom Tillis, R-N.C., among others, advocated to charge those who target CPCs under the FACE Act just last year.

According to Drexel University law professor David Cohen, whose work has focused on legal obstacles to abortion and anti-abortion extremism, the FACE Act served as a swift and effective deterrent to mass blockades at clinics. Of the recent Florida indictments, he said, “If this were the only way the DOJ were using their resources under the FACE Act, I would be extremely disappointed.” He noted that the government has continued to use the law to predominantly charge anti-abortion extremists but should nonetheless be doing far more to protect abortion providers and seekers amid the rise of anti-abortion violence at clinics since the Dobbs decision.

Even if the government is continuing to use the FACE Act against those who oppose abortion, the comparative overreach in the cases against Freestone and Smith-Stewart is striking. The acts for which the two are charged pale in comparison to the threats and violent incidents that have led to convictions under the FACE Act in the past. In 2017, for example, a Minnesota man was sentenced to six months in prison after threatening two Minneapolis abortion clinics over the phone, including a call in which he threatened to cut the recipient’s head off with a band saw.

A 2022 Reveal News investigation into FACE Act cases found that they were largely successful but did note that a number had failed when the alleged threats were not deemed to reach the legal standard of legitimacy by a jury. In one example, a Kansas woman sent a threatening letter directly to an abortion doctor trainee, saying, “You will be checking under your car everyday because maybe today is the day someone places an explosive under it.” She also sent admiring letters to the killer of a Wichita abortion doctor in 2009.

As the Justice Department noted, “The court determined that the letter fell short of a ‘true threat’ because it 1) did not threaten any imminent or unconditional violence, and 2) it did not suggest that the defendant would be the participant in the threatened violence.”

In response to the demands of Republican Congress members, the Justice Department released a list of recent FACE Act cases last year. The cases include assault and murder, as well as threats aimed at specific doctors — all of which appear to be more targeted and direct than those alleged in the Jane’s Revenge cases.

It is hard to imagine that spray-painting vaguely forbidding slogans, lacking names or specific intended actions, could rise to the legal standard of a genuine threat. Equally, the Jane’s Revenge graffiti in no way obstructed entry to any of the fake health facilities. The prosecutions, and the potential of a 12-year sentence, are a pernicious overreach.

Given the decimated state of reproductive justice, these charges and the broader campaign targeting Jane’s Revenge are yet another reminder that government forces, even under Democratic leadership, cannot be relied upon to stand on the side of those fighting for basic reproductive rights, let alone full reproductive justice. With this in mind, “We Are Everywhere” — the Jane’s Revenge slogan, long used by queer and environmental liberationists to denote community in shared struggle — is a comfort, not a threat.

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