Should Tiller’s Assassin Be Charged As A Domestic Terrorist?

Lindsay Beyerstein

The man who shot a security guard at the U.S. Holocaust Museum in D.C. was labeled by the FBI as a domestic terrorist, yet Scott Roeder, who assassinated Dr. George Tiller and who has been associated with a range of anti-choice groups that engage in violent rhetoric and clinic blockades has not. Should he be charged as a domestic terrorist? Many in the pro-choice community think the ultimate costs of doing so may outweigh the benefits.

Readers may find a wide range of stories on Dr. Tiller’s assassination, the reasons Dr. Tiller was highly regarded by both  the patients (women and men) he served as well as by health providers throughout the country; the lives of women he saved; and analyses of the  facts, politics and issues raised by late abortions.  These links provide only a sampling of the many related articles that can be found on our site through use of the search function.

The assassination of abortion provider George
Tiller appears to meet the legal definition of domestic terrorism under
the U.S. Criminal Code, yet the U.S. Department of Justice (DOJ) has given no indication that it is considering charging his alleged assassin, Scott Roeder, with terrorism. Many
in the pro-choice community wonder if the Justice Department would be
so tentative if Roeder and his allies professed to be Muslims instead
of Christians, yet many also are reluctant to see him labeled a domestic terrorist.

The Justice
Department announced on June 5 that it was investigating whether
Tiller’s shooting violated any federal laws, including the Free Access
to Clinic Entrances Act (FACE)
, a bill signed into law by President Bill Clinton in 1994 that makes it a federal crime to harm or threaten an abortion provider, vandalize a facility that provides abortions, or obstruct access to a reproductive health clinic. 

Asked if the Justice Department had ruled out terrorism charges, DOJ spokesman Alejandro Miyar replied, "No, I wouldn’t say that we’re ruling out any federal charges." However, DOJ’s public pronouncements to date suggest that potential violations of FACE are the agency’s primary focus. In response to further queries from Rewire, Miyar passed on a summary of the FACE Act and declined further comment.

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white supremacist James Von Brunn allegedly shot and killed a security
guard at the U.S. Holocaust Memorial Museum just days after Tiller’s
slaying, Joseph Persichini, assistant director of the Washington field office of the U.S. Federal Bureau of Investigation (FBI), told the media that the guard’s murder was an act of domestic terrorism. Yet when Rewire
asked the FBI whether the Tiller shooting was domestic terrorism, FBI
spokesperson Susan McKee replied, "The FBI is not in a position to
comment on the status of this investigation."

A month after Tiller was murdered, on July 1st, self-styled radical Islamist Corey Bledsoe shot two soldiers at a recruiting station in Little Rock, Arkansas. He said he did it in the name of Allah. He was promptly charged under Arkansas law with murder and with engaging in a terrorist act. Yet, like Bledsoe, Roeder and the Army of God believe that their Christian god compels them to "defend the unborn" with violence.

Prosecuting Roeder for domestic terrorism would signal that the government is "connecting the dots" on anti-choice extremism, terror and intimidation of legal medical services provided to women.

However, many civil libertarians and reproductive rights activists worry that charging Roeder as a domestic terrorist would legitimize a trend towards criminalizing entire groups based on ideology or affiliation, as opposed to zeroing in on those who actually commit crimes. They argue that the criminal justice system is already well equipped to deal with those who cross the line from inflammatory but constitutionally protected rhetoric to violent or disruptive behavior.

No one is more aware of threat of violent anti-choicers than Pam Chamberlain, a senior research analyst at Public Eye, a Massachusetts think tank that monitors the far right. Chamberlain specializes in keeping tabs on anti-abortion extremists. She has no doubt that doctor shooters and clinic bombers are domestic terrorists in the layman’s sense of the word. Yet she is also concerned that labeling anti-choice extremists as terrorists might open the door to infringements upon civil liberties.

Since 9/11, much of the legal thinking on terrorism has been predicated on the assumption that terrorist groups like Al Qaeda are effectively foreign freelance armies at war with the United States.
Bush administration officials used the war model to argue that alleged
terrorists were more like soldiers in a war than suspects accused of
crimes. The war model led some people to think that spying on alleged terrorists and their associates
was equivalent to spying on enemy soldiers on the battlefield, as
opposed to investigating allegations against citizens who are innocent
until proven guilty. Even if you think the war model should apply to
foreign terrorist groups at war with the United States, it’s hard to see how it can be applied within the United States without putting everyone’s civil liberties at risk.

you start applying those kinds of tactics to law enforcement to
investigate what we consider a domestic terrorist from the point
of view of reproductive justice, the government may apply the tactics
to other people they may not agree with. It’s a dangerous prospect," Chamberlain says.

That’s not just a theoretical possibility. Animal rights activists convicted of non-violent offenses under the controversial Animal Enterprise Terrorism Act have been detained alongside alleged Islamic terrorists in closely guarded domestic prison facilities known as Communication Management Units in an attempt to limit their contact with media and their families. The ACLU warns that the AETA criminalizes not only violence in the name of animal rights but also non-violent, constitutionally protected activities like boycotts and leafleting intended merely to hurt the bottom line of an animal-related business. 

Civil libertarians stress that there are already powerful laws on the books that could be used to crack down on anti-choice violence if the government were willing to allocate the resources. In
fact, there is reason to believe that Tiller’s assassination could have
been prevented if the FBI had vigorously enforced the FACE Act.

According to an attorney who worked in the DOJ’s Civil Rights Division under Clinton, the immediate impetus for FACE was a series of massive blockades in the early nineties. Hundreds of protesters would converge on clinics–including Tiller’s–and block the doors with their bodies.

"Normal operations ground to a halt," the official recalled. "We were opening up separate police areas just to process these people. There were arsons and bombings. Murders. Butyric acid attacks."

Before FACE, blockading a clinic was a minor offense under local laws, but FACE made interference with clinics or providers punishable by up to a year in jail for a first offense.

In the week before the shooting of Dr. Tiller, Roeder attempted to obstruct access to a clinic by gluing its locks. Clinic vandalism is also illegal and considered a federal crime under FACE. The manager of a Kansas City abortion clinic told Amy Goodman of Democracy Now! that he called the FBI a week before the shooting to report that Roeder had been caught on tape vandalizing the clinic. According to the manager, an FBI agent didn’t act, saying that the video was probably too blurry to get a conviction and that the manger had contaminated the DNA evidence by touching the lock. The manager said he went out and bought a brand new color video camera. The day before the shooting he called the FBI again to say that a nurse had caught Roeder in the act, even copying down his license plate number: 225 BAB. The FBI still didn’t act. The next day, Roeder drove to the Reformation Lutheran Church and shot George Tiller in the face.

Even if FACE were applicable, it wouldn’t necessarily preclude domestic terrorism charges. So, the question remains why DOJ and FBI are so reluctant even to discuss
the possibility. No doubt the decision would be extremely
controversial. Given what we know so far, it seems as if DOJ would have
a good case if it chose to pursue domestic terrorism charges, but it’s
not clear that this strategy would make it any easier to punish Roeder or trace his links to other anti-choice extremists.

Under federal law, an offense must meet three criteria in order to count as an act of domestic terrorism:

  • It must be a lethal or potentially lethal violent crime;
  • The violence must appear to be intended to coerce a civilian population or influence the government; and
  • The crime must take place in the United States.

By those standards, a terrorism charge would appear to be an option for Roeder. After all, Tiller was a nationally prominent abortion provider and longtime bête noire of the anti-abortion movement. Roeder has a 20-year history of anti-choice and anti-government activism.

Roeder has a number of troubling associations with other radical anti-choicers. He is even corresponding from prison with Rev. Donald Spitz, a leader of the Army of God (AOG), a shadowy network of anti-choicers that explicitly endorses the killing and maiming of abortion providers. The AOG published an encyclopedic how-to guide for terror tactics that included instructions for bombing, arson, staging car accidents and even destroying buildings with chemical demolition agents. AOG members have been convicted of crimes ranging from arson to murder. Another AOG member, Shelley Shannon, is still in jail for shooting Tiller in 1993. Shannon got her start blockading Tiller’s clinic with Operation Rescue.

At the time of his arrest, Roeder had in his car the phone number of the senior policy advisor for Operation Rescue Wichita (ORW), Cheryl Sullenger who
admits that she gave Roeder the dates and times of Dr. Tiller’s court
appearances.  Sullenger herself was convicted of conspiracy to bomb a
California abortion clinic in 1988, though she claims to have since renounced violence.

ORW has taken pains to distance itself from Roeder. But that didn’t stop the group’s  president Troy Newman from floating the idea of buying Tiller’s shuttered clinic.

Operation Rescue’s founder, Randall Terry, is just one of many anti-choice leaders who "denounced" the killing out of one side of their mouths while underscoring he "reaped what he sowed" out of the other, giving what could only be considered a coded message to their supporters.

Terry was back in the headlines this week when he all but threatened violence if Supreme Court nominee Sonia Sotomayor is confirmed. "Let all those in government be warned: They cannot order people to pay for the murder of babies, and betray God Himself, without horrific consequences," Terry’s press release said.

Of course, he went on to stress that he personally doesn’t condone apocalyptic violence.

He’s just sayin’.

Maybe Roeder acted alone, but he clearly has many supporters and Kansas’s authorities aren’t taking any chances. Prosecutors in Wichita convinced a judge to raise Roeder’s bond from $5 million to $20 million. A deputy district explained to a Wichita TV reporter that she asked to have the bond increased "based on the very
public nature of this and the activist groups, if you will, that might
be willing to assist in posting the bond and/or assist in helping Mr.
Roeder escape the consequences of moving through a court system."

Charging Roeder with terrorism would pack a powerful rhetorical punch, but practically it’s unlikely to affect his fate much. He is already charged with first-degree murder under Kansas state law. If he is convicted, as he almost certainly will be, he will spend the rest of his life in prison.

It’s all very well to debate these issues at a safe distance. But what do the providers on the front lines have to say about preventing clinic violence? Jen Boulanger is the Executive Director of the Allentown Women’s Center, a Pennsylvania clinic that provides abortions and other reproductive health services. After Tiller’s assassination she published a widely read essay entitled "Come Together to Prevent My Murder" in which she described a rising tide of hostility from the protesters outside her clinic. One protester likes to drop hints about ammonium nitrate, a key ingredient in the bomb Tim McVeigh used to blow up the federal building in Oklahoma City. The Army of God pickets her home on a regular basis. People call her a baby killer and predict that she and her husband are going to hell together.

Re-labeling violent protesters as domestic terrorists wouldn’t do much to stop the day-to-day harassment endured by clinic workers. That Roeder wasn’t stopped after two acts of vandalism shows that what’s lacking is methodical enforcement of existing laws that might thwart disruptive and threatening protesters before they become violent. Boulanger
wants the federal government to work more closely with state and local
authorities to enforce FACE and other laws routinely flouted by violent protesters, including laws against stalking, trespassing, and disorderly conduct. All levels of law enforcement need to establish a clear plan for responding to incidents at clinics, she says.

"Without clear guidelines and strict enforcement, prevention efforts will fail," Boulanger wrote in an email to Rewire, "There need to be more deterrents for aggressive behavior."

Some pro-choice groups are working now toward this end. NARAL is urging President Obama to support DOJ’s National Task Force on Violence Against Health Care Providers in its efforts to work with state and local authorities to enforce FACE.

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.


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