Dr. Carhart, Under Threat from “Domestic Terrorist Network,” Abandoned by Federal Marshals

Jodi Jacobson

Despite mounting threats to his clinic--and potentially his life--by extremists with links to the murderer of Kansas Dr. George Tiller, the DOJ has removed federal marshals that were protecting Nebraska Dr. Leroy Carhart. 

Despite mounting threats to the clinic–and potentially to the life–of Nebraska Dr. Leroy Carhart, the U.S. Department of Justice (DOJ) has removed the federal marshals earlier charged with protecting him.

Dr. Carhart lost his federal marshal protection two weeks ago,
much to the alarm of pro-choice leaders, leaving him vulnerable at a
time when anti-choice violence has been escalating across the country,
and when Carhart himself has been openly targeted by groups such as
Operation Rescue, which is calling for protests at his clinic later this month.  In addition, members of the Army of God, an organization that promotes
the use of violence against providers of abortion care, and glorifies
those who commit acts of murder, are also targetting Dr. Carhart. 

Women’s rights and health groups are now working strenuously to ensure that the DOJ restores protection by federal marshals for Dr. Carhart and to urge the DOJ and the FBI to investigate Tiller’s murder and other strategies used by these groups as part of a pattern of domestic terrorism.

Officials at the Department of Justice could not be reached for comment this weekend.  Rewire will be following up with them on Monday, August 10th.

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Dr. Carhart is a medical doctor who provides, among other services,
late abortion care to women whose lives and health are endangered by
their pregnancies, or whose fetuses have been determined to have
catastrophic anomalies incompatible with life.  He was a colleague of
Dr. Tiller’s, who was assassinated by violent anti-choice activist Scott Roeder in the lobby of his church on May
31st, 2009. 

In the days before Tiller’s murder, Roeder was in touch with an Operation Rescue staffer, Cheryl Sullenger, Operation Rescue Senior Policy Advisor, whose number was found in his car, and who provided him
with information on the whereabouts of Dr. Tiller on various occasions.  The Army of God called Roeder an
"American Hero," stating George Tiller "reaped what he sowed and is now
in eternal hell." The Army of God website lauds other such "heroes" as Paul Hill (who
killed reproductive health physician Dr. John Britton and his volunteer escort in Florida in 1994, and who was executed by lethal
injection in 2003), and Eric Rudolph, who attributed his attacks on women’s clinics in Georgia and
Alabama in 1997 and 1998, and on an Atlanta nightclub in 1997 serving a lesbian clientele to "the legalization of abortion and ‘aberrant sexual behavior.’" Rudolph, who claimed the bombings in the name of the Army of God, has said he feels "no regret or remorse" for the killing of one person and the wounding of at least 11 others. Feminist Majority Foundation has documented these and other terrorist attacks against providers in a comprehensive document.

Alarm at Lack of Protection and Lack of Action by Gov’t Agencies

Reproductive health groups are "deeply alarmed" by the removal of U.S. Marshals from Dr. Carhart and several other providers across
the country over the past several weeks, especially so soon after the murder of Dr. Tiller and
during a time when violence against medical professionals and staffs of women’s health clinics is on the rise.  "We are working to restore marshal protection to Dr. Carhart right away," according to Kathy Spillar,
Executive Vice President of the Feminist Majority Foundation (FMF). 

Indeed, shortly after being arrested, Roeder himself told the AP that he anticipated further violence:

"I know there are many other similar events planned around the country
as long as abortion remains legal," Roeder said. When asked by the AP
what he meant and if he was referring to another shooting, he refused
to elaborate further

A number of groups, including FMF, the National Organization for
Women
(NOW), and the National Abortion Federation (NAF), are also deeply concerned that the DOJ and the Federal Bureau of Investigation (FBI) have previously failed to take a comprehensive approach to investigating crimes like that committed by Roeder and others as part of a pattern of domestic terrorism. They are urging the FBI and the DOJ to broaden their investigations into the networks of extremist individuals and groups that
may have been involved in the murder and other acts of violence against
providers of abortion care.

"Make no mistake, these are domestic terrorists," says Spillar. 
"And we feel the DOJ and the FBI must treat
them as such.  The extremists’ activities go well beyond the actions of the lone individual and
can be linked to networks that show a clear pattern of illegal activity
leading to violence, murders, and deadly bombings, all of which is tied
to a political agenda. They have manuals, manifestos, and monikers similar to those used by terrorist groups.  And they have been linked to shootings, murders and deadly bombings.  If this is not the definition of ‘terrorist network,’ I don’t know what is."

Both violent rhetoric and violent threats are increasing.  For example, in her article for Rewire, Come Together to Prevent My Murder, Jen Boulanger, Executive Director of the Allentown Women’s Clinic, wrote:

while the news crews that covered the Tiller murder have now packed up
and moved on, aggressive protesting in the weeks since the murder of
Dr. Tiller has escalated. My abortion provider colleagues from across
the country have noticed this alarming trend.  Since Dr. Tiller’s
murder, the threats and violent rhetoric have gotten much worse. On the
day of Dr. Tiller’s funeral, one of our volunteers was asked, “How do
you prefer to die, by knife or by bullet?” A week later, a protester
told me, “Abortionists were executed after World War II by the
Nuremburg Trials” and posed this rhetorical question, “You know what
Von Brunn did at the Holocaust Museum?”  This protester’s son, who has
picketed the clinic since he was a small child (he is now in his early
twenties), has made a point of mentioning ammonium nitrate, which is
used in making bombs, to us while protesting on several occasions.  

Carhart Targeted by Anti-Choice Radicals

The withdrawal of federal marshal protection from Dr. Carhart is
particularly perplexing in light of the direct targeting of Carhart by
Operation Rescue (OR), which is calling for protests outside
Dr. Carhart’s Nebraska clinic at the end of
August.  Carhart, one of a relatively small number of physicians who
provide late abortions, recently stated plans to open another clinic in Wichita, Kansas to provide services no longer available to women due to the
murder of Dr. Tiller, whose clinic was subsequently closed by his
family.

"Operation Rescue is launching a campaign to keep the Wichita clinic
closed, and to close down Dr. Carhart’s clinic in Nebraska," said Marla
Patrick of Kansas NOW

The OR campaign includes several strategies, not all of which have been made fully public.

The most "benign" part of OR’s strategy is based on re-hashing old
lawsuits brought against Drs. Tiller and Carhart by anti-choice groups,
each of resulted in both physicians being found innocent of any
wrongdoing.  An OR press release states:

Last month…three pro-life groups sent a letter
along with a documentation packet to Nebraska Attorney General Jon
Buning asking for a comprehensive investigation in to Carhart’s
abortion business. 

"This is the same tactic of legal harassment used against Tiller," said
Spillar, "to tie Carhart up in court/administrative hearings, costing
substantial amounts of money and time for him and his staff.  And if
the AG is anything like [former Kansas Attorney General Phil]
Kline–a zealot with a substantial state budget to engage in the
harassment–it will be even worse." 

Spillar continues:

The OR leadership is quite adept at this harassment –
even filing administrative complaints against Tiller on the same issues
within days after he was aquitted in a court of law. The two grand
juries OR worked to convene through citizen petition  to investigate Dr. Tiller cost substantial
state funds and again were concluded with no findings of wrong doing. 
So the OR strategy is persistence …but with no basis for legal
actions.

"Again," states Spillar," this is a pattern."

Operation Rescue is also planning an "invitation-only" training session
for anti-choice advocates interested in blockading Dr. Carhart’s
clinic and has called on anti-choice advocates around the country to
converge on the Nebraska clinic at the end of August. 

"This is the first of two ambitious projects to be launched by
Operation Rescue this month," states the OR website. "The second
project promises to be the most
ambitious endeavor ever embarked upon by Operation Rescue."

According to Troy Newman, President of Operation Rescue:

We have vast experience gained over years of legally and peacefully
closing abortion clinics around the nation and will be putting that
experience into practice in new and creative ways in the coming weeks
and months.

"I read this language as being ominous," said Patrick of Kansas Now.  She continues:

It is clear they are planning some serious antics. 
And given how close these people are to Roeder, I am deeply concerned
that neither local nor federal law enforcement officials appear to be
doing what they need to do.

Existing Laws Not Well Enforced

The "legality" of OR’s efforts is questionable at best. 
There are both federal and local laws on the books that make it illegal to interfere with or block access to clinics or to engage in any form of threat, harassment, or violence against clinic workers or clients.  Yet, pro-choice leaders at the state and national level underscore that these laws are constantly breached and according to many, are weakly enforced, if at all.

We have publicly made it very clear we don’t think they are doing enough at the local or federal level," stated Kansas NOW’s Patrick.  "It is not a matter of passing new laws.  We have the laws we need.  We just need to use them.  Law enforcement needs to use them."

"We have let these people boldly harass doctors and clinics unchallenged for so long, it appears that police have gotten use to it," said Patrick.  "But they have to use the tools we already have to put a stop to it."

In her article for Rewire on this issue, Lindsay Beyerstein wrote that "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."

But according to some civil libertarians, some of these efforts are too little too late; they argue that more effective implementation of existing laws could have saved Dr. Tiller’s life.  

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.  Beyerstein writes:

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.

Now, as OR and other such groups gear up for what they claim will be dramatic actions aimed at Dr. Carhart’s clinic, state and national reproductive health and rights groups are calling on law enforcement officials to be proactive, and on advocates from across the country to help out at Carhart’s clinic in August.

"We are calling on pro-choice advocates to join us in providing peaceful clinic defense," said Patrick.  "But we also want them there as witnesses, as legal observers, to make sure that if laws are broken, this is documented, that local and federal law enforcement is made aware of what is going on, that they do their jobs, and that the word gets out because people need to understand this is domestic terrorism.  We want the world to see what is going on here."

Spillar agrees: "Law enforcement must be very proactive in ensuring
that demonstrators are not blocking clinics or stalking clinic workers,
not interfering with their work or women’s access to care, and
certainly not promoting or engaging in violence."

"We are putting the word out," continued Patrick, "to neighboring state partners in Iowa, Missouri and Nebraska and also to women and men in the pro-choice community across the country, on Facebook, Twitter, and through other means."

A Facebook page can be found here and Kansan NOW’s website can be found here.

"After 8 long years in which violence plummeted because Bush was in the White House and anti-choice forces felt they had a friend in government, the political landscape has changed and the extreme wing of the anti-choice community has gone back into action."

"At the same time," Spillar continues, "the Department of Justice and the FBI did not have to do as much on this front and so lost momentum.  It was not a priority.  Now it has to be."

"This effort is organized, it is orchestrated, it is a pattern, and it is escalating," said Spillar, "and both the Administration and the relevant agencies need to do more and to pay attention….right now.  Unless these extremists are brought to justice we are just waiting for another doctor to be murdered."

Investigations Violence

As Threats Spike, Advocates Urge Feds to Strengthen Law Protecting Abortion Clinic Access

Sofia Resnick

Just two days after NARAL Pro-Choice America submitted a letter asking the U.S. Department of Justice to investigate anti-choice activities as domestic terrorism, an extremist opened fire on a Planned Parenthood clinic in Colorado, murdering three people and injuring nine others.

On a frigid January afternoon this year, a day before the 43rd anniversary of Roe v. Wade, about a dozen fresh-out-of-college feminist campus organizers marched the halls of Congress after divvying up a list of representatives to visit.

Smartly dressed under bulky winter coats, organizers Kelli Musick and Chelsea Yarborough, who work for the national nonprofit the Feminist Majority Foundation (FMF), dropped by the office of Rep. Marsha Blackburn (R-TN).

Blackburn chairs the House of Representatives’ Energy and Commerce Committee’s Select Investigative Panel, created last October principally to investigate Planned Parenthood. The panel formed after the anti-choice front group the Center for Medical Progress (CMP) released a series of heavily edited videos in which it claimed—though never proved—that Planned Parenthood was illegally selling fetal tissue.

As part of their mission that day, Musick and Yarborough left written materials with a staffer asking Blackburn to either redirect her panel’s focus to violent attacks on abortion clinics, or to dissolve it. Specifically, the FMF wanted the congressional panel to investigate the leaders behind CMP, whose rhetoric has fueled a recent spate of threats and attacks against abortion providers, the foundation’s president, Eleanor Smeal, told Rewire in an interview. Though the investigative scope of the panel is actually quite broad, it does not specifically include abortion clinic violence as an area to probe.

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But in the four months since Musick and Yarborough submitted their request to Blackburn’s staff, the panel has forged ahead with its investigation, not just into Planned Parenthood’s fetal tissue donation practices, but into abortion practices generally. This week, House Democrats requested that Speaker Paul Ryan (R-WI) disband this panel, arguing that it amounts to little more than a biased, expensive witch hunt on fetal tissue researchers and abortion providers.

Really, though, the FMF’s mostly symbolic ask is part of a recent, ongoing push by abortion rights groups to demand that the federal government start taking violence and threats aimed at abortion providers more seriously. National organizations last year began identifying a spike in violent acts, such as arson, vandalism, and death threats, directed at reproductive health clinics and staffers.

NARAL Pro-Choice America started a campaign last November asking the U.S. Department of Justice (DOJ) to investigate these types of activities as domestic terrorism. Just two days after NARAL submitted its letter to the federal agency, an anti-choice extremist opened fire on a Planned Parenthood clinic in Colorado murdering three people and injuring nine others.

This rise in threats and attacks—further documented in a report published last month by the National Abortion Federation (NAF)—has also prompted abortion rights groups to demand that the government strengthen and fully enforce the Freedom of Access to Clinic Entrances (FACE) Act, a 22-year-old federal law intended to ensure access to abortion clinics and to protect the lives of abortion providers and patients.

“The time for us being quiet is over,” Smeal said at a news conference held in January. “We are determined that we are going to bring the anti-abortion violence issue to the forefront of decision making.”

A Call for More FACE Investigations

The FACE Act, which allows for criminal and civil remedies, makes it a federal crime to use force or the threat of force to prevent people from accessing or providing reproductive health care. For example, the law bans the destruction of clinic property and the practice of blocking someone’s entrance into a clinic.

Before President Bill Clinton signed the FACE Act in 1994, some abortion foes would travel the country and barricade themselves in front of clinic doors. Such blockades came to be known as “operation rescue,” pioneered by the national group of the same name whose current president, Troy Newman, was involved in the aforementioned video campaign targeting Planned Parenthood.

“It’s called ‘interposition,'” Rev. Rusty Lee Thomas told Rewire in a phone interview. He said that this blockading practice is based on a biblical and historical concept, where “someone stands in the gap between the sort of tyrant and its victim.” Thomas said in this case, the doctors providing abortions were the tyrants and the aborted fetuses the victims.

Thomas now runs a group called Operation Save America. Back in the 1990s, he joined anti-choice activists in these ventures. But Thomas said he gave up this particular brand of protest after the DOJ sued him and others under the FACE Act in 1998, after he had attempted to block the entrances of reproductive health clinics in multiple cities in Ohio. Though the federal government ultimately dropped the charges, the threat of prison time and hundreds of dollars in fines ended his blockading days, Thomas said.

“Like anything else, when the price tag goes up, people really do have to weigh that,” he said. “By that time, the government was successful at scaring people and shutting it down. The tactic of ‘operation rescue’ was put to an end.”

Many abortion rights supporters agree with Thomas that the FACE Act curbed clinic blockades. They say this federal policy and similar state laws helped decrease violent attacks, such as clinic bombings and murders of clinic workers and doctors. Smeal said that, according to the FMF’s frequent clinic surveys, the year the FACE Act went into effect, more than 50 percent of abortion clinics reported experiencing violence; today that number has dropped to 20 percent.

Since 1994, the DOJ has filed a total of 27 civil FACE cases in 17 states, a Justice Department spokesperson told Rewire in an email. The spokesperson said the DOJ receives “a great deal of information” from national abortion provider groups, as well as from victims, local law enforcement, and media reports.

As Rewire has reported previously, both criminal and civil prosecutions under FACE tend to fluctuate based on which political party controls the White House: During President George W. Bush’s administration, for example, criminal prosecutions under the FACE Act declined by more than 75 percent to about two a year, compared to an average of ten prosecutions a year under the Clinton administration. During President Obama’s first term, the DOJ reported prosecuting 11 criminal cases under the FACE Act, charging 12 defendants.

During a Senate Judiciary Committee hearing in March on the oversight of the Justice Department, Attorney General Loretta Lynch testified that her agency increased criminal prosecutions and civil cases filed under the FACE Act within the “past five or six years.” But she did not give the total number of cases prosecuted under the act. She estimated that under the Obama administration, the DOJ has charged a total of 12 criminal cases criminally and nine civil ones.

Advocates and providers say these figures pale in comparison to the number of acts of violence and harassment annually committed against clinics and providers nationwide.

Since the NAF began tracking abortion clinic violence in 1977, the organization reports that as of 2015, there have been 185 arsons, 42 bombings, 26 attempted murders, and 11 murders, three of which occurred last year.

Advocates are currently waiting to see whether the government will bring a FACE complaint against Robert Lewis Dear Jr., who invoked anti-abortion animus upon arrest and during his first media interview after he admitted to shooting up the Colorado Springs Planned Parenthood clinic last November. During her testimony in March, Lynch said the DOJ is reviewing “a possible FACE Act violation” against Dear while his murder case proceeds in state court.

It appears, however, that this case will be in limbo for a while. Earlier this month, a judge ruled that Dear lacks the mental competency to stand trial, after forensic psychologists diagnosed him with a delusion disorder they claim is based on the accused shooter’s fringe political beliefs, among them that federal agents are spying on him. Dear, meanwhile, has been very clear that he does not want to plead insanity; rather, he wants to argue that the attack on Planned Parenthood was legally justified because he was fighting against the greater evil of abortion. For the time being, Dear will be treated at a state psychiatric hospital until, if ever, he is deemed competent to stand trial.

In any case, it might seem unnecessary to charge Dear with a federal felony crime of obstructing access to abortion when he’s already on trial for multiple murders. But some advocates say that charging these crimes under FACE is important symbolically because, as with hate crimes, the FACE Act helps draw the link between crimes like vandalism, arson, and murder, and a specific bias against a group of people. Being able to illustrate a pattern of anti-abortion crimes is necessary in order to bring awareness to law enforcement and the public and to potentially deter anti-choice extremists from threatening or committing acts of violence, they say.

It’s for this reason that physician assistant Susan Cahill wanted to bring a FACE claim against Zachary Klundt, who destroyed her All Families Healthcare clinic in Kalispell, Montana, in March 2014, forcing her to forever shutter her clinic.

According to testimony that surfaced during the sentencing hearing, Klundt had texted his mother hours before the break-in, asking her for information about the “abortionist,” and had told a psychiatrist evaluating him after the break-in that Cahill was a “murderer.” Notably, Klundt’s mother sat on the board of the anti-choice pregnancy center that purchased Cahill’s old building and evicted Cahill.

Yet despite this circumstantial evidence, Klundt testified that he smashed all of Cahill’s medical equipment and personal photos and poured iodine on her patients’ medical records because of serious drug addiction, not anti-abortion animus.

“Even though everybody knows why he did it, legally it wasn’t tried that way,” Cahill told Rewire.

Though third parties can bring civil suits under the FACE Act, Cahill said she likely would be unsuccessful trying to use the statute in this case, because Klundt was only found guilty of vandalism and the court did not make a specific finding about his motivations in committing this crime.

Instead, she is suing Klundt, his family, and the crisis pregnancy center that forced her from her old building, for negligence, nuisance, and “intentional infliction of emotional distress.” She said she hopes that if the case moves forward, discovery proceedings will surface what she suspects were Klundt’s anti-abortion motivations.

To be sure, not all anti-choice activists and abortion clinic protesters escalate to violence. And abortion opponents like Susan B. Anthony List national campaign chair Jill Stanek say the FACE Act goes too far in regulating the actions of protesters. Stanek told ​Rewire​ that most of these activists peacefully exercise their free speech rights to protest what they believe is a form of murder.

As an example, Stanek pointed Rewire to a FACE claim in 2010 in which the DOJ sued an activist in West Palm Beach, Florida, accusing her of blocking the flow of traffic at an abortion clinic while she tried to give pamphlets to a couple in a car. A federal judge dismissed the claim as baseless.

Stanek argued that it is a political strategy among abortion rights supporters to “play up” acts of anti-choice violence and threats. She added that abortion opponents also receive their share of attacks and threats, including herself. Upon returning from vacation in late January, Stanek said she found a brick thrown through her window with a note reading: “Quit the pro-life bullshit.” Her local newspaper in Mokena, Illinois, reported the alleged incident. Stanek posted photos she says depict the brick and busted window to Facebook.

While Stanek maintained that most abortion protesters organize peacefully and called people like Dear part of the “lunatic fringe,” she did concede that protesting in front of abortion clinics is, in part, an attempt by her movement “to stigmatize abortion doctors.” The goal is also, she said, to convince patients to turn away from clinics and for clinic staff to quit their jobs.

It’s this stigma and endless, sometimes hostile, presence in front of reproductive health clinics that, abortion providers told Rewire, can help breed eventual violence. But Stanek said the movement is not about to abandon this crucial aspect of their multi-pronged strategy to end legal abortion.

“As far as we’re concerned, the last front, the last place that we have a chance to save a baby is at the abortion clinic,” Stanek said. “Laws haven’t worked, pregnancy care centers haven’t worked, educating hasn’t worked. Now we have the mom going into the abortion clinic. And so that is what compels certain people to go to abortion clinics and try to get women to change their minds.”

Abortion Rights Advocates Say FACE Is Weak on Threats, Harassment

It was lunchtime during the summer of 2012 when Dr. Willie Parker walked outside of Jackson Women’s Health Organization in Jackson, Mississippi. It was his first day at the clinic, which happens to be bright pink and the last standing abortion clinic in the whole state. As such, it’s a regular fixture for protests.

As he walked to and from a nearby sandwich shop, Parker said he was accompanied by a protester who “berated” him the entire way. He felt intimidated and threatened.

Parker, who currently divides his time among six clinics in five states, told Rewire in a phone interview that the FACE Act is a “mixed bag,” arguing it does not fully protect providers, especially when they are not on clinic property. He added that abortion foes have learned all of the federal and local statutes to know how close they can physically reach patients and providers while staying inside the law.

“At what point am I out of the safety created by [the FACE] Act simply because I chose to walk across the street from an abortion clinic to get a sandwich?” he said.

Many abortion providers think FACE is a relatively weak law, particularly when it comes to harassment and threats made against them, an element of clinic violence many advocates say is often ignored at the federal level. Though it forbids “the threat of force,” such a provision is open to interpretation by the courts.

Drexel University law professor David Cohen, who co-authored a recent book about anti-abortion terrorism, told Rewire last year that the FACE Act should be amended to specifically include stalking and harassing abortion providers within the law’s current definition of “intimidate.” Additionally, Cohen recommends directing the courts to assess threats from the perspective of an abortion provider, and increasing penalties.

Threats to providers have drastically increased in the last year, say advocacy groups. They attribute this increase, in part, to the incendiary rhetoric that Planned Parenthood “sells baby parts,” a recurring mantra from the Center for Medical Progress’ smear campaign against the reproductive health-care network.

The NAF tracked 94 threats of direct harm in 2015, compared to just one threat in 2014. According to its latest report, NAF hired an outside security firm in mid-November last year to track online threats, which helped to identify more than 25,000 incidents of hate speech and threats within six weeks.

Meanwhile, researchers at FMF also witnessed a sharp rise in threats against abortion providers last summer. Smeal said researchers were so concerned that they postponed a clinic violence survey that they were prepping to come out earlier this year and instead tried to help clinics prevent threats from escalating into actual attacks.

“We were very, very concerned about the increasing level of threats,” Smeal told Rewire in an interview. “Most of us who have been involved in this for a long time thought it was one of the highest threat levels we’ve ever seen. We were waiting for the violent acts to occur.”

They didn’t have to wait long.

Dr. Savita Ginde, the medical director at the Planned Parenthood clinic in Colorado Springs, was one of the doctors featured in one of CMP’s videos. After the video streamed online, Ginde allegedly received online death threats, as well as picketers outside of her home. In November, Dear was arrested for shooting up her clinic, declaring afterward, “no more baby parts.” Ginde was not harmed.

The connection of threats to violence worries advocates like Smeal. Extremists do not always act on their threats, but they sometimes do, she said. Or they create a climate that motivates someone to act out what the crowd is cheering for.

It’s for this reason that the reproductive rights community eagerly anticipated the recent trial in the Justice Department’s civil lawsuit against abortion foe Angel Dillard in the hopes that the result might strengthen future enforcement against threats under FACE.

In fact, the opposite might have happened.

The DOJ sued Dillard in 2011 after she mailed a letter to family practitioner Dr. Mila Means. Means was, at the time, training to perform abortions in Wichita to fill the gap left by Dr. George Tiller, whom Scott Roeder murdered two years earlier, admitting it was because Tiller performed abortions. In the letter, Dillard, who has ties to Roeder, told Means that thousands of abortion opponents across the country were monitoring her movements and that should she begin offering abortions, she should take care to check beneath her car for explosives every day “because maybe today is the day someone places an explosive under it.” In the letter, Dillard also referenced Tiller speaking to Means from hell.

The agency interpreted this letter as a threat of violence that violated the FACE Act. Means ended up not opening an abortion practice in Wichita. She told Rewire after the trial that she backed out, in part, because of the cultural and political climate against abortion in Kansas. “The threats work,” she said.

This climate was evidenced in the Wichita jury’s decision reached earlier this month. While the eight jurors did conclude that Dillard’s letter constituted a “true threat” not automatically protected by free speech, they also accepted Dillard’s attorneys’ arguments that her threats were religious in nature rather than violent.

“The letter was intimidating, but it was a more spiritual threat, a more emotional threat,” Adam Cox, the presiding juror, told Rewire in an interview following the verdict.

Thus, they found the letter did not violate the law and did not warrant civil damages or a protective order to keep Dillard away from Means.

Smeal said she was disappointed by the verdict in the Dillard case.

“It just shows you how hard it is to enforce this law,” she told Rewire in a phone interview.

Smeal said she is working behind the scenes with other advocates and lawmakers on efforts to eventually expand and strengthen the FACE Act. In the meantime, she said, law enforcement at all levels should be employing other existing laws to prosecute but also try to prevent violent attacks against abortion providers.

Some advocates, for example, have called on the federal government to treat demonstrated acts of anti-abortion violence, bomb threats, or murder as domestic terrorism.

Since NARAL launched its campaign last fall demanding that the DOJ begin investigating anti-abortion violence as domestic terrorism, NARAL Vice President of Policy Donna Crane said her group has seen more congressional members speaking out about abortion clinic violence as domestic terrorism.

“We think [the campaign] has raised important questions about why all too often anti-choice violence at women’s health centers is seen somehow as different, maybe even somehow a little bit more acceptable,” Crane told Rewire in a phone interview. “We believe that it’s just another flavor of domestic terrorism, and it should be talked about as such and treated as such.”

Smeal said her organization is similarly not backing down from its campaign asking the House committee investigating Planned Parenthood to take to task the activist groups that have, she believes, contributed to a dangerous climate for abortion providers and their patients.

Already, Smeal said, supporters have sent the committee thousands of emails as part of this campaign. And though she said it is difficult to know what effect the FMF’s campaign has had so far, she said she knows congressional members are listening.

Earlier in May, House Minority Leader Nancy Pelosi and the committee’s ranking Democratic member Rep. Janice Schakowsky held a press conference asking Speaker Paul Ryan to disband the House select committee, arguing that its investigation is putting access to reproductive health care as well as the lives of doctors and fetal-tissue researchers in danger, a point Smeal’s group has been making for months now.

“We’re going to keep it up, because we’re worried [the committee is] endangering health-care providers,” Smeal said of her group’s campaign. “We want to continue to shed light on this anti-abortion violence and basically are doing that in every way we can.”

Analysis Law and Policy

Dear Incompetency Ruling Is the Latest Dangerous Signal From Courts on Anti-Abortion Violence

Jessica Mason Pieklo

Two different courts in as many weeks handed down rulings potentially sending some terrifying cues to the anti-choice movement.

On Wednesday, Colorado District Court Judge Gilbert Martinez ruled that Robert Lewis Dear Jr., the admitted Colorado Springs Planned Parenthood shooter, will not immediately stand trial for the November 27, 2015 siege that killed three people. Dear faces 179 counts, including murder and attempted murder, from the attack.

Martinez’s ruling, which came after two competency exams and hours of contested courtroom testimony, was that Dear was not legally competent to stand trial. Dear spoke out during the court proceedings against him again and again, despite court warning. Dear also has some fringe political beliefs that could fairly be described as delusional—he believes the FBI has been tracking him, that President Obama is the Antichrist, and that the federal government has been systematically targeting Christians since the 1993 siege on the Branch Davidians in Waco, Texas.

Based on the evidence disclosed so far, however, it is hard not to second-guess Martinez’s ruling here. Being behaviorally unpredictable or existing on the political fringe is not the same thing as being legally incompetent to stand trial. It’s dangerous for the court to decide otherwise.

Under Colorado law, a defendant is considered “incompetent to proceed” if, as the result of a mental or developmental disability, they do not have the sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding in order to assist in the defense, or if they do not have a “rational and factual understanding of the criminal proceedings.”

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I’ve put the emphasis on a couple of key points, because they are important for understanding the difference between whatever psychiatric diagnosis Dear got and the legal standard for whether or not he is competent to stand trial.

First: Sufficient present ability. That means does Dear, at this moment in time, have the ability to talk to his lawyer? Not “does he want to,” but “can he?”

Second: With a reasonable degree of rational understanding. Now there’s some legalese for you. But broadly speaking, it means: Can Dear reasonably and rationally understand the proceedings against him? For example, does he understand his charges? Can he participate in the court hearings as his case proceeds? Again, not “does he want to,” but “can he?”

And here’s what we know so far from court testimony and the few documents Martinez has allowed to be unsealed: Dear crafted a homemade bulletproof vest prior to November 27, which he said he wore on him when he took siege at the clinic. We also know through court testimony and documents that prior to the siege, Dear collected propane tanks and ammunition, which he brought and set up around the clinic first. He said he shot at those tanks. He missed. But he told investigators his goal was to create as much carnage as possible.

We even know that Dear stopped at a crisis pregnancy center about a mile down the road to confirm whether or not it was the Planned Parenthood clinic in question.

We know a lot more about what happened once Dear surrendered to law enforcement, how he cooperated with investigators up until his defense team was appointed, who then suggested an insanity defense. We know Dear didn’t want to plead insanity and instead wants to argue the siege was justified—that, as with Paul Hill, Michael Bray, and Scott Roeder, violence is necessary in the name of preventing what he sees as the “greater evil” of legal abortion.

Dear himself has stated both to the media and the court that he knew exactly what he was doing on November 27 before he was arrested in that Colorado Springs Planned Parenthood. He surrendered. He wants a trial.

He may never get one, though. All the evidence of Dear’s planning, of his specific targeting of Planned Parenthood, of Dear’s insistence he have a platform in the form of a criminal trial—by ruling Dear incompetent to stand trial because of his “political delusions,” Judge Martinez overlooks Dear’s very real but sincerely held religious belief that abortion is a moral wrong that has no legal justification.

The good news is that Wednesday’s decision is temporary. Competency, as the law defines it, is a fluid state. Which means a defendant like Dear can come in and out of legal competency, even if he’s never fully “cured” of the diagnosis that got him declared incompetent in the first place.

The immediate effect of Martinez’s ruling is to send Dear to the Colorado Mental Health Institute in Pueblo. That’s where Dear will be treated for what forensic psychologists diagnosed as his delusional disorder. Under Colorado law, “mental disability,” like that delusional disorder, means a “substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability,” which would significantly interfere with Dear’s ability to adapt to society.

In other words, the question is whether a defendant like Dear can keep himself integrated to a reasonable degree in society. The law states that Dear can be held no longer than his possible sentence—in his case, life in prison or possibly the death penalty—in efforts to rehabilitate him to legal competency. If the state psychologists and the court decide Dear will never become legally competent, they could begin the process of civilly committing Dear to a mental health facility for the rest of his life. They could also release him on bond with conditions that he must meet in order to remain out of state custody, such as remaining on medications or regularly meeting with psychiatrists.

Dear’s diagnosis centers on what the psychologists describe as Dear’s conspiratorial beliefs the federal government is targeting Christians and that the FBI has been watching him for decades. I’m curious as to how those beliefs are going to be “rehabilitated,” given that right-wing politicians and personalities use rhetoric similar, if not identical, to Dear’s. Even one of the psychologists herself admitted this fact during court testimony.

Really troubling, though, was the conclusion that Dear’s beliefs on abortion, the target of whatever fringe political beliefs he may espouse, do not fall into that delusional diagnosis. Those, psychologists testified during the first day of Dear’s competency hearing, are simply Dear’s deeply and sincerely held religious beliefs as to the moral wrong of abortion. 

Let me be clear. I am very uncomfortable with the government making conclusions as to which political beliefs are delusional and which are not. But I am even more uncomfortable with this idea that obstruction against reproductive health care can be explained away, and thus legally insulated, by religious beliefs. Political fringe beliefs, apparently, are enough to warrant a diagnosis of a disorder; anti-choice rhetoric, according to these courts, is a religious belief irrelevant to the matter at hand.

Should Dear ever be found legally competent, that would effectively continue the criminal case against him, months, maybe years later. The soonest prosecutors can request Dear be reevaluated to be declared competent to stand trial is three months from Wednesday’s ruling. But I’m guessing it’s going to take more time than those three months. Call it a hunch.

In the meantime, it’s good to remember that as we saw with Angel Dillard’s case last week in Wichita, Kansas, a trial is no guarantee of any justice or vindication of abortion rights. And like Wichita, Colorado Springs has a deeply ingrained anti-choice movement. Who’s to say a jury wouldn’t excuse Dear’s actions based on those religious beliefs, in much the same way one did in Dillard’s case?

Dear’s case raises troubling questions, then, for reproductive rights advocates: Do we really want him to stand trial? What about the risk of a jury embracing the idea that targeted violence against abortion providers and their patients just comes with the territory for someone who believes in delivering full-spectrum health care, including reproductive services?

What about the fact that anti-choice violence is so normalized in our culture that the courts, in two different cases in as many weeks, will go out of their way to excuse it? Given the increasingly violent anti-choice rhetoric and political climate, do we really have any choice but to fight back in every venue we can, including the courts?

I don’t have a good answer to any of those questions.

I know that these cases, when read together, potentially send some terrifying cues to the radical anti-abortion movement. Dear is now another “lone wolf” delusional person who was arrested for just happening to act out his violent delusions at a Planned Parenthood. Kind of like that young man in Wichita who walked into an abortion clinic to apply for a job. With a homemade bomb in his backpack. Dillard is just another fire-and-brimstone prison minister acting on her sincere religious beliefs that God called her to write a letter to Dr. Mila Means warning her about future car bombs. Not to incite any violence towards Means. Just to save her.

I had a law professor try to explain to me once that the law is often slow to catch up with popular opinion. Just look, for example, at marriage equality: Large swathes of the country had already accepted that discriminating against same-sex couples is wrong before the Supreme Court got around to agreeing with them.

So, then, what does that say right now about anti-abortion violence, if the courts in these cases too are slow to catch up with popular opinion? I think it means that we’ve got a long ways to go before abortion providers and patients can feel like their interests are being heard by the justice system. At all.