Seldom-Enforced Law Opens Window for Suits Against Extreme Anti-Choice Groups

Daphne Eviatar

Are laws like the Freedom of Access to Clinic Entrances Act enough to ensure that anti-clinic, anti-provider violence ends?

The threats started in 1995. It was the anniversary of Roe v. Wade, and
the American Coalition of Life Activists decided to create a poster for
their annual meeting listing the names and address of a group of
doctors who performed abortions. They called them “the Deadly Dozen,”
and declared each guilty of “crimes against humanity.” They offered
$5,000 for information leading to their arrest, conviction, or
revocation of their medical licenses. ACLA members distributed the
poster at the group’s events and published it in an affiliated
magazine.

Then later that year, ACLA unveiled a second poster, this time
targeting Dr. Robert Crist, an abortion provider in Kansas City. The
poster listed his home and work addresses and featured his photograph.
It offered $500 to “any ACLA organization that successfully persuades
Crist to turn from his child killing through activities within ACLA
guidelines,” which prohibited violence.

The following January, ACLA created the “Nuremberg Files” — a series
of dossiers it had compiled on doctors, clinic employees, politicians,
judges and other abortion rights supporters. Dr. George Tiller of
Wichita, Kans., who was killed Sunday, was among them. They would be
prosecuted, ACLA wrote, “once the tide of this nation’s opinion turns
against the wanton slaughter of God’s children.” ACLA sent copies of
the dossiers to an anti-abortion activist who posted the information on
a website. There, the names of those who had been attacked by
“anti-abortion terrorists” — as the court called them — were listed,
with a strike through the names of those who had been murdered. The
names of those wounded were grayed.

Although neither the posters nor the Website contained explicit
threats against the doctors, similar posters had previously been made
of other doctors shortly before they were violently attacked; one was
murdered. Abortion providers soon took to wearing bulletproof vests,
drew the curtains of their home windows and received protection from
U.S. Marshals. The strategy had worked.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Eventually, some of the doctors, represented by Planned Parenthood,
sued ACLA, twelve activists and an affiliated organization, claiming
that their actions violated the federal Freedom of Access to Clinic
Entrances Act, or FACE act, among other laws. At trial, a jury found
that the statements were “true threats” and therefore not protected by
the First Amendment. The doctors won $107 million in damages and an
injunction barring the anti-abortion activists from distributing
similar information in the future.

Although the anti-abortion protesters appealed, a majority of judges
on the Ninth Circuit Court of Appeals affirmed the verdict. Such
“WANTED”- style posters, the court ruled, in the context of previous
similar threats and subsequent violence, and the lines drawn through
the names of doctors who’d been murdered, were not protected by the
First Amendment: “ACLA’s conduct amounted to a true threat and is not
protected speech.” The Supreme Court declined to review the case, and
it remains good law.

Much of the discussion in the wake of Tiller’s slaying has been
about criminal prosecution of those who murder abortion doctors. But
there’s a growing concern about the anti-abortion extremists — some
call them domestic terrorists — who enable and encourage such murders
by labeling abortion providers “mass murderers”, Nazis and worse, and
implying that violent attacks against them are not only justified, but
honorable.

As Rachel Maddow revealed in chilling detail in her MSNBC news show
on Monday night, groups such as Rescue America, Prayer and Action News,
Army of God and Operation Rescue Founder Randall Terry all appeared to
be celebrating Tiller’s murder
on Monday. And while extremists who promote violence against abortion
providers could be prosecuted under state and federal law — and
particularly under the federal Freedom to Access Clinic Entrances (FACE) Act — the federal government in recent years has hardly prosecuted any such cases.

According to statistics provided by the Department of Justice, the
Bush administration brought only about two criminal prosecutions per
year in the entire country under the FACE Act, and never more than
four in any single year. The Clinton administration, in contrast,
prosecuted 17 defendants for violations of the FACE Act in 1997 alone,
and an average of about 10 per year since the law was enacted in 1994.
Those cases included one against a woman in 1996 who yelled through a
bullhorn to a doctor, “Robert, remember Dr. Gunn. This could happen to
you …,” referring to Dr. David Gunn, the first abortion doctor ever
murdered, in 1993. In another case, a man who parked a Ryder truck
outside a clinic shortly after the bombing of a federal building in
Oklahoma City, where a Ryder truck had been used to carry explosives,
was found to have threatened force. Stalking, arson and bomb threats
are also illegal.

Whether the dropoff in prosecutions is because the FACE Act
successfully deterred crimes after its enactment or because the Bush
administration wasn’t interested in prosecuting them is not clear. “The
amount of activity really did drop a lot after FACE was enacted and it
was beginning to be enforced,” said Cathleen Mahoney, Executive Vice
President of the National Abortion Federation who was an attorney in
the Justice Department until 2006. “Certainly the political will wasn’t
there.”

That’s disappointed Janet Crepps, deputy director of the legal
program at the Center for Reproductive Rights. “I don’t think that the
government has done enough,” she said, noting that while the Clinton
administration had created a task force in the Department of Justice to
coordinate responses to clinic threats and violence, during the Bush
years, “we’ve heard that providers during that time would call DOJ for
help and get no response.”

Justice Department spokesman Alejandro Miyar said Tuesday that the
task force still exists, and in a statement released after the fatal
shooting of Dr. Tiller, Attorney General Eric Holder said that
“[f]ederal law enforcement is coordinating with local law enforcement
officials in Kansas on the investigation of this crime.” It remains to
be seen, however, whether the government will also investigate the
anti-abortion activists who threaten abortion providers and may have
worked with the actual murderer.

But as the Planned Parenthood case illustrates, the doctors and
clinic workers who are targets of violent threats don’t have to wait
for the government to act. The FACE act allows doctors or clinic
workers to privately sue the individuals and groups making the threat.
And although that’s been challenged on First Amendment grounds, its use
has been upheld by the courts in cases where the intent to threaten or
intimidate was clear.

The lawyer who represented Planned Parenthood in that case declined
to be interviewed for this article, citing the sensitivity surrounding
the issues, lack of knowledge of the circumstances of Dr. Tiller’s
death and respect for his family. But several lawyers confirmed that
the case, last litigated in 2006 when the anti-abortion groups tried to
appeal to the Supreme Court, could serve as a model for others.

“It’s very fact-intensive,” said Mahoney, from the National Abortion
Foundation. “It really depends on the particular circumstances. We
would say that people should not be allowed to threaten anyone for
providing legal medical services.” In addition to a private right to
sue, state attorneys general can also enforce the law within their
states.

Some civil libertarians, however, have concerns. On “The Rachel
Maddow Show” Monday, George Washington University Law Professor
Jonathan Turley cautioned against prosecution or lawsuits against even
those who promote violence. “We have this difficult line to walk
between free speech and preventative law enforcement,” he said. “The
Supreme Court has said that violent speech is protected … and it is in
fact protected to say all abortion doctors should be killed.”

That’s not necessarily true under the FACE Act, however. The law
specifically targets whoever “by force or threat of force …
intentionally injures, intimidates or interferes with …” anyone who is
a provider of abortion services or a patient trying to access them.

That’s not to say that FACE is sufficient or its enforcement is
easy. “It’s penalties are significantly lower than many other federal
criminal statutes,” said Mahoney, who was involved in criminal
prosecutions under FACE in the justice department. The other
difficulty, she acknowledged, is the “delicate balance” between
protected speech and incitement to violence. While the law does make it
a crime to “intimidate or interfere” with provision of abortion
services, “there’s a lot of law about what’s a criminally actionable
threat” that makes intimidating statements difficult to prosecute.
“It’s not so much FACE as that whole body of law that’s the
difficulty,” said Mahoney.

Avoiding such politically charged difficulties may be why the
federal government appears in recent years to have avoided enforcing
the law altogether. The murder of George Tiller, apparently by a known
anti-abortion zealot, may begin to change the political equation.

News Law and Policy

Texas Lawmaker’s ‘Coerced Abortion’ Campaign ‘Wildly Divorced From Reality’

Teddy Wilson

Anti-choice groups and lawmakers in Texas are charging that coerced abortion has reached epidemic levels, citing bogus research published by researchers who oppose legal abortion care.

A Texas GOP lawmaker has teamed up with an anti-choice organization to raise awareness about the supposed prevalence of forced or coerced abortion, which critics say is “wildly divorced from reality.”

Rep. Molly White (R-Belton) during a press conference at the state capitol on July 13 announced an effort to raise awareness among public officials and law enforcement that forced abortion is illegal in Texas.

White said in a statement that she is proud to work alongside The Justice Foundation (TJF), an anti-choice group, in its efforts to tell law enforcement officers about their role in intervening when a pregnant person is being forced to terminate a pregnancy. 

“Because the law against forced abortions in Texas is not well known, The Justice Foundation is offering free training to police departments and child protective service offices throughout the State on the subject of forced abortion,” White said.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

White was joined at the press conference by Allan Parker, the president of The Justice Foundation, a “Christian faith-based organization” that represents clients in lawsuits related to conservative political causes.

Parker told Rewire that by partnering with White and anti-choice crisis pregnancy centers (CPCs), TJF hopes to reach a wider audience.

“We will partner with anyone interested in stopping forced abortions,” Parker said. “That’s why we’re expanding it to police, social workers, and in the fall we’re going to do school counselors.”

White only has a few months remaining in office, after being defeated in a closely contested Republican primary election in March. She leaves office after serving one term in the state GOP-dominated legislature, but her short time there was marked by controversy.

During the Texas Muslim Capitol Day, she directed her staff to “ask representatives from the Muslim community to renounce Islamic terrorist groups and publicly announce allegiance to America and our laws.”

Heather Busby, executive director of NARAL Pro-Choice Texas, said in an email to Rewire that White’s education initiative overstates the prevalence of coerced abortion. “Molly White’s so-called ‘forced abortion’ campaign is yet another example that shows she is wildly divorced from reality,” Busby said.

There is limited data on the how often people are forced or coerced to end a pregnancy, but Parker alleges that the majority of those who have abortions may be forced or coerced.

‘Extremely common but hidden’

“I would say that they are extremely common but hidden,” Parker said. “I would would say coerced or forced abortion range from 25 percent to 60 percent. But, it’s a little hard be to accurate at this point with our data.”

Parker said that if “a very conservative 10 percent” of the about 60,000 abortions that occur per year in Texas were due to coercion, that would mean there are about 6,000 women per year in the state that are forced to have an abortion. Parker believes that percentage is much higher.

“I believe the number is closer to 50 percent, in my opinion,” Parker said. 

There were 54,902 abortions in Texas in 2014, according to recently released statistics from the Texas Department of State Health Services (DSHS). The state does not collect data on the reasons people seek abortion care. 

White and Parker referenced an oft cited study on coerced abortion pushed by the anti-choice movement.

“According to one published study, sixty-four percent of American women who had abortions felt forced or unduly pressured by someone else to have an unwanted abortion,” White said in a statement.

This statistic is found in a 2004 study about abortion and traumatic stress that was co-authored by David Reardon, Vincent Rue, and Priscilla Coleman, all of whom are among the handful of doctors and scientists whose research is often promoted by anti-choice activists.

The study was cited in a report by the Elliot Institute for Social Sciences Research, an anti-choice organization founded by Reardon. 

Other research suggests far fewer pregnant people are coerced into having an abortion.

Less than 2 percent of women surveyed in 1987 and 2004 reported that a partner or parent wanting them to abort was the most important reason they sought the abortion, according to a report by the Guttmacher Institute.

That same report found that 24 percent of women surveyed in 1987 and 14 percent surveyed in 2004 listed “husband or partner wants me to have an abortion” as one of the reasons that “contributed to their decision to have an abortion.” Eight percent in 1987 and 6 percent in 2004 listed “parents want me to have an abortion” as a contributing factor.

‘Flawed research’ and ‘misinformation’  

Busby said that White used “flawed research” to lobby for legislation aimed at preventing coerced abortions in Texas.

“Since she filed her bogus coerced abortion bill—which did not pass—last year, she has repeatedly cited flawed research and now is partnering with the Justice Foundation, an organization known to disseminate misinformation and shameful materials to crisis pregnancy centers,” Busby said.  

White sponsored or co-sponsored dozens of bills during the 2015 legislative session, including several anti-choice bills. The bills she sponsored included proposals to increase requirements for abortion clinics, restrict minors’ access to abortion care, and ban health insurance coverage of abortion services.

White also sponsored HB 1648, which would have required a law enforcement officer to notify the Department of Family and Protective Services if they received information indicating that a person has coerced, forced, or attempted to coerce a pregnant minor to have or seek abortion care.

The bill was met by skepticism by both Republican lawmakers and anti-choice activists.

State affairs committee chairman Rep. Byron Cook (R-Corsicana) told White during a committee hearing the bill needed to be revised, reported the Texas Tribune.

“This committee has passed out a number of landmark pieces of legislation in this area, and the one thing I think we’ve learned is they have to be extremely well-crafted,” Cook said. “My suggestion is that you get some real legal folks to help engage on this, so if you can keep this moving forward you can potentially have the success others have had.”

‘Very small piece of the puzzle of a much larger problem’

White testified before the state affairs committee that there is a connection between women who are victims of domestic or sexual violence and women who are coerced to have an abortion. “Pregnant women are most frequently victims of domestic violence,” White said. “Their partners often threaten violence and abuse if the woman continues her pregnancy.”

There is research that suggests a connection between coerced abortion and domestic and sexual violence.

Dr. Elizabeth Miller, associate professor of pediatrics at the University of Pittsburgh, told the American Independent that coerced abortion cannot be removed from the discussion of reproductive coercion.

“Coerced abortion is a very small piece of the puzzle of a much larger problem, which is violence against women and the impact it has on her health,” Miller said. “To focus on the minutia of coerced abortion really takes away from the really broad problem of domestic violence.”

A 2010 study co-authored by Miller surveyed about 1,300 men and found that 33 percent reported having been involved in a pregnancy that ended in abortion; 8 percent reported having at one point sought to prevent a female partner from seeking abortion care; and 4 percent reported having “sought to compel” a female partner to seek an abortion.

Another study co-authored by Miller in 2010 found that among the 1,300 young women surveyed at reproductive health clinics in Northern California, about one in five said they had experienced pregnancy coercion; 15 percent of the survey respondents said they had experienced birth control sabotage.

‘Tactic to intimidate and coerce women into not choosing to have an abortion’

TJF’s so-called Center Against Forced Abortions claims to provide legal resources to pregnant people who are being forced or coerced into terminating a pregnancy. The website includes several documents available as “resources.”

One of the documents, a letter addressed to “father of your child in the womb,” states that that “you may not force, coerce, or unduly pressure the mother of your child in the womb to have an abortion,” and that you could face “criminal charge of fetal homicide.”

The letter states that any attempt to “force, unduly pressure, or coerce” a women to have an abortion could be subject to civil and criminal charges, including prosecution under the Federal Unborn Victims of Violence Act.

The document cites the 2007 case Lawrence v. State as an example of how one could be prosecuted under Texas law.

“What anti-choice activists are doing here is really egregious,” said Jessica Mason Pieklo, Rewire’s vice president of Law and the Courts. “They are using a case where a man intentionally shot his pregnant girlfriend and was charged with murder for both her death and the death of the fetus as an example of reproductive coercion. That’s not reproductive coercion. That is extreme domestic violence.”

“To use a horrific case of domestic violence that resulted in a woman’s murder as cover for yet another anti-abortion restriction is the very definition of callousness,” Mason Pieklo added.

Among the other resources that TJF provides is a document produced by Life Dynamics, a prominent anti-choice organization based in Denton, Texas.

Parker said a patient might go to a “pregnancy resource center,” fill out the document, and staff will “send that to all the abortionists in the area that they can find out about. Often that will stop an abortion. That’s about 98 percent successful, I would say.”

Reproductive rights advocates contend that the document is intended to mislead pregnant people into believing they have signed away their legal rights to abortion care.

Abortion providers around the country who are familiar with the document said it has been used for years to deceive and intimidate patients and providers by threatening them with legal action should they go through with obtaining or providing an abortion.

Vicki Saporta, president and CEO of the National Abortion Federation, previously told Rewire that abortion providers from across the country have reported receiving the forms.

“It’s just another tactic to intimidate and coerce women into not choosing to have an abortion—tricking women into thinking they have signed this and discouraging them from going through with their initial decision and inclination,” Saporta said.

Busby said that the types of tactics used by TFJ and other anti-choice organizations are a form of coercion.

“Everyone deserves to make decisions about abortion free of coercion, including not being coerced by crisis pregnancy centers,” Busby said. “Anyone’s decision to have an abortion should be free of shame and stigma, which crisis pregnancy centers and groups like the Justice Foundation perpetuate.”

“Law enforcement would be well advised to seek their own legal advice, rather than rely on this so-called ‘training,” Busby said.

News Abortion

Reproductive Justice Groups Hit Back at RNC’s Anti-Choice Platform

Michelle D. Anderson

Reproductive rights and justice groups are greeting the Republican National Convention with billboards and media campaigns that challenge anti-choice policies.

Reproductive advocacy groups have moved to counter negative images that will be displayed this week during the Republican National Convention (RNC) in Cleveland, while educating the public about anti-choice legislation that has eroded abortion care access nationwide.

Donald Trump, the presumptive GOP nominee for president, along with Indiana Gov. Mike Pence (R), Trump’s choice for vice president, have supported a slew of anti-choice policies.

The National Institute for Reproductive Health is among the many groups bringing attention to the Republican Party’s anti-abortion platform. The New York City-based nonprofit organization this month erected six billboards near RNC headquarters and around downtown Cleveland hotels with the message, “If abortion is made illegal, how much time will a person serve?”

The institute’s campaign comes as Created Equal, an anti-abortion organization based in Columbus, Ohio, released its plans to use aerial advertising. The group’s plan was first reported by The Stream, a conservative Christian website.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The site reported that the anti-choice banners would span 50 feet by 100 feet and seek to “pressure congressional Republicans into defunding Planned Parenthood.” Those plans were scrapped after the Federal Aviation Administration created a no-fly zone around both parties’ conventions.

Created Equal, which was banned from using similar messages on a large public monitor near the popular Alamo historic site in San Antonio, Texas, in 2014, did not respond to a request for comment on Thursday.

Andrea Miller, president of the National Institute for Reproductive Health, said in an interview with Rewire that Created Equal’s stance and tactics on abortion show how “dramatically out of touch” its leaders compared to where most of the public stands on reproductive rights. Last year, a Gallup poll suggested half of Americans supported a person’s right to have an abortion, while 44 percent considered themselves “pro-life.”

About 56 percent of U.S. adults believe abortion care should be legal all or most of the time, according to the Pew Research Center’s FactTank.

“It’s important to raise awareness about what the RNC platform has historically endorsed and what they have continued to endorse,” Miller told Rewire.

Miller noted that more than a dozen women, like Purvi Patel of Indiana, have been arrested or convicted of alleged self-induced abortion since 2004. The billboards, she said, help convey what might happen if the Republican Party platform becomes law across the country.

Miller said the National Institute for Reproductive Health’s campaign had been in the works for several months before Created Equal announced its now-cancelled aerial advertising plans. Although the group was not aware of Created Equal’s plans, staff anticipated that intimidating messages seeking to shame and stigmatize people would be used during the GOP convention, Miller said.

The institute, in a statement about its billboard campaign, noted that many are unaware of “both the number of anti-choice laws that have passed and their real-life consequences.” The group unveiled an in-depth analysis looking at how the RNC platform “has consistently sought to make abortion both illegal and inaccessible” over the last 30 years.

NARAL Pro-Choice Ohio last week began an online newspaper campaign that placed messages in the Cleveland Plain Dealer via Cleveland.com, the Columbus Dispatch, and the Dayton Daily News, NARAL Pro-Choice Ohio spokesman Gabriel Mann told Rewire.

The ads address actions carried out by Created Equal by asking, “When Did The Right To Life Become The Right To Terrorize Ohio Abortion Providers?”

“We’re looking to expose how bad [Created Equal has] been in these specific media markets in Ohio. Created Equal has targeted doctors outside their homes,” Mann said. “It’s been a very aggressive campaign.”

The NARAL ads direct readers to OhioAbortionFacts.org, an educational website created by NARAL; Planned Parenthood of Greater Ohio; the human rights and reproductive justice group, New Voices Cleveland; and Preterm, the only abortion provider located within Cleveland city limits.

The website provides visitors with a chronological look at anti-abortion restrictions that have been passed in Ohio since the landmark decision in Roe v. Wade in 1973.

In 2015, for example, Ohio’s Republican-held legislature passed a law requiring all abortion facilities to have a transfer agreement with a non-public hospital within 30 miles of their location. 

Like NARAL and the National Institute for Reproductive Health, Preterm has erected a communications campaign against the RNC platform. In Cleveland, that includes a billboard bearing the message, “End The Silence. End the Shame,” along a major highway near the airport, Miller said.

New Voices has focused its advocacy on combatting anti-choice policies and violence against Black women, especially on social media sites like Twitter.

After the police killing of Tamir Rice, a 12-year-old Black boy, New Voices collaborated with the Repeal Hyde Art Project to erect billboard signage showing that reproductive justice includes the right to raise children who are protected from police brutality.

Abortion is not the only issue that has become the subject of billboard advertising at the GOP convention.

Kansas-based environmental and LGBTQ rights group Planting Peace erected a billboard depicting Donald Trump kissing his former challenger Sen. Ted Cruz (R-Texas) just minutes from the RNC site, according to the Plain Dealer.

The billboard, which features the message, “Love Trumps Hate. End Homophobia,” calls for an “immediate change in the Republican Party platform with regard to our LGBT family and LGBT rights,” according to news reports.

CORRECTION: A version of this article incorrectly stated the percentage of Americans in favor of abortion rights.