Prosecution of Clinic Violence Lagged Under Bush

Daphne Eviatar

The Bush Administration rarely used the existing law to prevent and combat violence against clinics and providers of abortion and other reproductive health services.

Scott Roeder, the 51-year-old accused of murdering women’s health provider Dr. George Tiller in his Wichita, Kans., church, had a long history of ties to a violent right-wing extremist group, had previously threatened another provider, and had just that week vandalized Tiller’s clinic.

Just as federal law specifically penalizes hate crimes, the law also makes it a federal crime to threaten or commit violence against providers of abortion and other services, or to vandalize their clinics. Yet the criminal law was not being enforced.

The day after Dr. George Tiller was murdered, we obtained data revealing that under the Bush administration, criminal enforcement of the federal law designed to protect providers and clinics had declined by more than 75 percent over the last eight years.

But there’s also a civil component to that federal law, known as the
Freedom of Access to Clinic Entrances Act, or FACE Act. That part of
the law allows the attorney general to seek an injunction and
compensatory damages for anyone who’s been harmed by any activity that
violates the law. And it turns out that the Department of Justice over
the last eight years didn’t use that part of the law to protect providers of abortion, either.

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Under the FACE Act, in addition to criminal charges, the Justice
Department can obtain damages and an injunction against anyone who “by
force or threat of force or by physical obstruction, intentionally
injures, intimidates or interferes with or attempts to injure,
intimidate or interfere with” anyone who provides or receives
reproductive health services. It also allows the government to
prosecute and sue anyone who “intentionally damages or destroys the
property” of an clinic where abortions are performed, because they are frequently vandalized
as part of protesters’ intimidation tactics. The clinic where Dr. Tiller worked, for example, was repeatedly vandalized, including just days before his murder.

Yet despite these broad powers that Congress granted the attorney
general in 1994 to prevent and combat violence against clinics
and providers of abortion services, the Bush administration almost never used them. From
2000 until 2008, during the eight years of the Bush administration, the
Justice Department filed only one civil case under the FACE Act. From
1994 – 1999, in contrast, in just five years of the Clinton
administration, the Department filed 17 civil cases under the FACE Act — in addition to its much heavier load of criminal cases that we’ve reported before.

It’s possible, of course, that the law was so effective in its early
years that it deterred all future violations. “I do think that the
statute was very effective,” and “for the most part there were fewer
complaints coming to us,” said Cathleen Mahoney, vice president and
general counsel of the National Abortion Federation and director of the
Justice Department’s Task Force on Violence Against Reproductive Health
Care Providers until 2006.

But crime statistics provided by the National Abortion Federation
show that violence did not stop when the Bush administration came into
office. The group reports 3,291 acts of violence against
providers in the United States and Canada between 2000 and 2008 — and
that’s only the number of incidents they know about. (The total number
of incidents in the U.S. alone was not available.) The group warns on
its website that “actual incidents are likely much higher.” That number
does not include threats, vandalism and harassment, which are also
violations of the FACE Act.

The NAF — the organization that most closely tracks such data in the
United States — also reports that between 2000 and 2008 there were at
least 17 cases of “extreme” violence against providers in the
United States, such as arson, stabbing and bomb attacks. At least 607
letters threatening Anthrax contamination (they did not actually
contain anthrax) were sent to providers between 2000 and 2002
alone. During the entire eight years of the Bush administration, the
federal government prosecuted only 11 individuals for any acts of
violence against clinics or individual providers of abortion services.

Former Attorney General John Ashcroft, although opposed by many abortion-rights advocates for his vehement opposition to keeping abortion legal,
did prosecute the infamous anti-abortion activist and convicted felon
Clayton Lee Waagner for the anthrax threats, which attracted
significant public attention because they were sent just after
lawmakers and news organizations received letters containing anthrax
spores, prompting nationwide fears of deadly biological terror attacks.

Waagner was an easy target: a fugitive who’d escaped from jail in
February 2001 while awaiting sentencing on federal weapons charges, he
was already on the FBI’s Top Ten Most Wanted List, the U.S. Marshals
Service Fifteen Most Wanted List, and the Ten Most Wanted List of the
Bureau of Alcohol, Tobacco and Firearms. He was arrested in November
2001 and promptly claimed responsibility for over 550 anthrax threat
letters sent to providers in October and November. The letters
were signed by the Army of God, an extremist anti-abortion group
that openly advocates violence against specific physicians who provide
abortions. Waagner’s supporters in the Army of God, however, were not
prosecuted or even sued for civil damages or injunctions under the FACE
Act, although the group was responsible for distributing a manual that
supplies detailed instructions for attacking clinics,
manufacturing bombs and cutting off the hands of doctors who provide abortion services,
according to SourceWatch. The FBI has characterized the prosecution of
Waagner as a “counterterrorism case,” suggesting that the “Army of God” is considered a domestic terrorist organization by federal law enforcement.

Yet despite the prosecution of Waagner in 2001, the Army of God
today continues to do much the same thing. The group and its members
continue to support and advocate the murder of providers. Its
Website, for example, on Wednesday celebrated the Tiller murder in this
banner headline:

“The lives of innocent babies scheduled to be murdered
by George Tiller are spared by the action of American hero Scott
Roeder. George Tiller the Babykiller reaped what he sowed and is now in
eternal hell.”

It commends previous convicted murderers of doctors providing abortion services as
“heroes,” and continues to host the “Nuremberg Files,” a notorious list
of the names of providers and recipients, with a line through
those that have been killed and names grayed of those who have been
murdered. (The Ninth Circuit Court of Appeals in 2002 found that these
constituted threats to the doctors.)

As Rachel Maddow recently described the Army of God’s current Website on MSNBC:

“You can actually scroll through pages and pages of mug
shots and descriptions of bombings and shootings and murders and
attempted murders — all praising the perpetrators, and even suggesting
ways to get away with the same types of crimes that these people
committed but you could do it without getting caught.”

Although such conduct has in the past led to violence, the threats
are often not prosecuted by local police. According to Dr. Susan
Robinson, who used to perform abortions at the same Wichita clinic as Dr. Tiller did before it was closed: “they allow the anti-abortion protesters to set up dozens of crosses and leave them all day. Dr. Tiller went to the city attorney over the crosses,
and complained that people block the clinic driveway,” she told
journalist Amy Goodman. “He told me that the city attorney said, ‘I
would rather be sued by George Tiller than the anti-abortion folks.’”

The federal law was enacted in part to fill in the gaps when local
authorities refused or lacked the resources to bring charges. “Often
local police won’t enforce the local laws against trespassing,”
explained Mahoney, the former federal prosecutor. “It’s politically
charged and local police want to stay out of it.” During her tenure at
the Department of Justice, Mahoney said it was the Civil Rights
Division of the Justice Department that was charged with enforcing the
FACE Act. That’s the same division that Inspector General reports and
Congressional hearings eventually revealed repeatedly made hiring and enforcement decisions based on conservative political ideology rather than merit.

In the one situation in the last eight years that the Bush Justice
Department decided did merit a lawsuit, in 2007, the charges were so
serious that it’s not clear why the administration filed a civil suit
rather than criminal charges. The federal government sought only an
injunction — essentially, a court order telling the defendant to stop.

Yet this was no mere schoolyard-style harassment. According to the
legal complaint filed by the Justice Department, John Dunkle, another
member of the “Army of God”, had been publishing a monthly Web
newsletter “encouraging readers of his publications to use deadly force
against specifically identified reproductive health clinic physicians
and staff, providing instruction on how to employ deadly force tactics;
provoking physical and verbal confrontations with reproductive health
clinic physicians, staff and patients at various clinics” and
“publishing internet postings containing photographs and the home
addresses of reproductive health clinic physicians and staff,” among
other things.

The government also claimed that he “threatened a specific female
clinic physician until she ceased providing reproductive health
services in fear of the Defendants’ threats to her life.”

Those threats included “explicitly encourag[ing] his readers to kill
the targeted individual by shooting her in the head”; publishing her
name, photo and home address on his Web page and blog; and publishing
instructions “regarding the specific means to kill the targeted
individual, as well as how to escape detection upon the commission of
her murder.” Such postings dated back more than two years, identifying
the same person.

There is no question that such threats are criminal under the
federal law, say legal experts. “Physical obstruction is not protected,
violence is not protected and true threats are not protected,” said
Louise Melling, Director of the ACLU’s Reproductive Freedom Project,
which has submitted several amicus briefs to courts defending the
constitutionality of the federal law. A “true threat” has been defined
by the courts has a threat that would reasonably be interpreted by the
person hearing it as a serious threat to their safety.

Yet in the case of John Dunkle, whose threats caused a reproductive
health provider to quit her profession, the government did not seek
criminal penalties or even any monetary damages to compensate the
victims and deter future crimes; it simply asked the court to tell him
to stop.

Department of Justice spokesman Alejandro Miyar said that department
officials decide whether or not to prosecute or seek damages in cases
“on a case-by-case basis, and a number of factors are taken into
account, including — among others — whether there is an identifiable
subject and whether the matter is being pursued by local officials.” He
was not aware of whether Dunkle had been prosecuted for related acts
under state law, and there was no indication in the documents filed in
the federal case that he had been.

Threats against providers appears to have had a serious
impact on the availability of the procedure, and particularly on the
ability of women to obtain legal later-term abortions, even when the
pregnancy threatens the woman’s life. According to the Guttmacher
Institute, a nonprofit organization focused on sexual and reproductive
health research, only two percent of all abortion providers in the
United States currently provide such procedures, which are most heavily
targeted by extremist anti-choice groups. Women most commonly seek
such abortions due to abnormalities of the fetus and threats to a
woman’s health or life, and in many states they’re only legal if the
woman’s health or life is in danger. Dr. Tiller and his clinic were therefore frequent targets of both violent threats and actions, up until the day before his death.

The FACE Act was adopted to prevent and prosecute this sort of
violence, in part because Congress concluded that existing state laws
and local law enforcement were unable to do the job on their own.

When President Clinton signed the FACE Act in 1994,
he said: “We simply cannot — we must not — continue to allow the
attacks, the incidents of arson, the campaigns of intimidation upon
law-abiding citizens that (have) given rise to this law,” citing the
murder of Dr. David Gunn in Florida in 1993, and the shooting of Dr.
Tiller in both arms outside his clinic in Wichita that same year.

“No person seeking medical care, no physician providing that care
should have to endure harassments or threats or obstruction or
intimidation or even murder from vigilantes who take the law into their
own hands because they think they know what the law ought to be.”

The statistics on enforcement of the FACE Act by the Justice
Department suggest that during the Bush administration, protecting
those physicians was no longer a high priority.

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.

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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 Law and Policy

Texas District Attorney Drops Felony Charges Against David Daleiden and Sandra Merritt

Jessica Mason Pieklo

The grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver's license to gain access to a Planned Parenthood center in Houston.

UPDATE, July 26, 2:47 p.m.: This piece has been updated to include a statement from Planned Parenthood.

On Tuesday, the Harris County District Attorney’s office in Texas dismissed the remaining criminal charges against anti-choice activists David Daleiden and Sandra Merritt related to their production of widely discredited, heavily edited videos alleging Planned Parenthood was illegally profiting from fetal tissue donations.

The criminal charges against the pair originally stemmed from Republican Texas lawmakers’ responses to the videos’ release. Attorney General Ken Paxton, Gov. Greg Abbott, and Lt. Gov. Dan Patrick all called for the Harris County District attorney’s Office to begin a criminal investigation into Planned Parenthood Gulf Coast last August, after the release of one video that featured clinic staff in Houston talking about the methods and costs of preserving fetal tissue for life-saving scientific research.

A Texas grand jury found no evidence of wrongdoing by Planned Parenthood staff and declined to bring any criminal charges against the health-care provider. More than a dozen state and federal investigations have similarly turned up no evidence of lawbreaking by the reproductive health-care provider.

Instead, in January, the grand jury returned indictments against Daleiden and Merritt on felony charges of tampering with an official government document for purportedly using a fraudulent driver’s license to gain access to a Planned Parenthood center in Houston. Daleiden was also indicted on a misdemeanor charge related to trying to entice a third party to unlawfully purchase human organs.

A Texas judge in June dismissed the misdemeanor charge against Daleiden on procedural grounds.

“This meritless and retaliatory prosecution should never have been brought,” said Daleiden’s attorney, Peter Breen of the Thomas More Society, in a statement following the announcement that the district attorneys office was dismissing the indictment. “Planned Parenthood did wrong here, not David Daleiden.”

“Planned Parenthood provides high-quality, compassionate health care and has been cleared of any wrongdoing time and again. [Daleiden] and other anti-abortion extremists, on the other hand, spent three years creating a fake company, creating fake identities, and lying. When they couldn’t find any improper or illegal activity, they made it up. They spread malicious lies about Planned Parenthood in order to advance their anti-abortion agenda. The decision to drop the prosecution on a technicality does not negate the fact that the only people who engaged in wrongdoing are the extremists behind this fraud,” Melaney A. Linton, President and CEO of Planned Parenthood Gulf Coast, said in a statement emailed to Rewire after publication.

The district attorney’s dismissal of the felony charges against Daleiden and Merritt happened just before a scheduled court hearing requested by their attorneys to argue the felony indictment should be dismissed.

Daleiden still faces three civil lawsuits elsewhere in the country related to the creation and release of the Planned Parenthood videos.