Content and view-point neutral FACE?

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
Content and view-point neutral FACE?

Content and view-point neutral FACE?
An example of how the courts can gut laws written by Congress

Commentary by MEREDITH RANEY , 08/01/03 -- Phone:(321)254-5481
Spokesman for Christians For Life, Melbourne, FL

When the federal courts take a break from writing their own laws, they can cause additional grief by establishing precedent in case law that effectively destroys a law that was perfectly written with respect to content and view-point neutrality by Congress.

A little history behind the FACE law

Back in the late 80's pro-life activists took a page out of the old liberal 60's playbook and started doing sit-ins (pro-lifers call them "rescues") at abortion clinics by non-violently sitting in front of clinic doors to prevent abortions. The pro-life rescues were virtually identical to the 60's lunch counter civil rights sit-ins that blocked access to segregated lunch counters.

While one of the lunch counters from Greensboro, NC is in the Smithsonian in a display that presents those activists as heroes, the only recognition given pro-lifers in the federal system so far is a law designed to break the back of the pro-life rescue movement. That law is called the Freedom of Access to Clinic Entrances (FACE) law (18 USC §248).

Rescues and sit-ins are a state issue -- trespassing

Congress should not have written the law at all because rescues (sit-ins) are a state issue -- trespassing. Congress never saw a need to write a law against civil rights sit-ins.

Congress writes a content and view-point neutral law

Nevertheless, Congress did a good job writing FACE to be content and view-point neutral as required by the Constitution.¹ It was not an easy job since everyone knew (but FACE supporters would never admit) that FACE's reason to exist was to stop pro-life rescues (sit-ins) at abortion clinics.

In the carefully crafted text of FACE, the word "abortion" appears only once -- probably so the search engines could find it. The preferred euphemism used is "reproductive health services," a term that includes crisis pregnancy centers as well as abortion clinics. It protects women going to their OB/GYN for pre-natal care as much as it does a woman going to an abortion clinic. It protects pro-life counselors as well as abortionists. There is even a section protecting "places of worship."

The federal courts weigh in

The application in our court system is another matter. As soon as the challenges to FACE started hitting the court system, some federal judges started misreading the FACE law and applying it as if it were content and view-point based in favor of the abortion industry. Two examples, one building on the other, stand out:

In United States v. Dinwiddie, 76 F.3d 913, 923 (8th Cir. 1996); the court said "Congress enacted FACE to prohibit conduct that interferes with the ability of women to obtain abortions." A read of the actual language of FACE does not support that statement. However, Dinwiddie was appealed without success so the statement stands to be used as case law in other cases. And so it was.
The above Dinwiddie reference was picked up and used in Jane Roe II vs. Aware Woman² in the 11th Circuit Middle District of Florida, CASE NO. 6:99-CV-85O-ORL-19KRS. Here, in her Summary Judgment for the Defendants Order, District Judge Patricia Fawsett quotes the exact wording from Dinwiddie above, but then adds her own interpretation, "In other words, even though Congress expressly enacted FACE to chill certain forms of anti-abortion activism . . ." She goes on to relate details of the case. So much for content and view-point neutrality. Because this was said by a federal judge in a Summary Judgment Order, it will become the "law of the land" and be picked up and used in cases all over the country, unless Jane Roe II's attorneys can afford to appeal.³

The snowball is rolling down the slippery slope

So, now there is a growing body of case law that blatantly interprets FACE in an unconstitutional way. It's getting worse as time goes on. We have a runaway court system that needs to be checked and balanced. Congress is the one with the Constitutional authority to do it. When was the last time a Supreme Court Justice was impeached? Whenever it was, it's time to do it again. The lower courts just follow the example set by the Supreme Court. Fix the Supreme Court and the lower courts will fall in line.

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¹The gist of the FACE law is as follows: "Whoever - by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with . . . any person because that person is or has been, . . . obtaining or providing reproductive health services; . . . shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c) . . ."

²Jane Roe II (an alias) is a woman who was held down against her loudly expressed wishes to leave during an abortion procedure. She sued the abortionist and clinic owners under FACE for interfering with her desire to seek reproductive health services elsewhere. The court awarded Summary Judgment to the Defendants as a matter of law. On top of that, the Defendants have the gall to seek legal costs of over $7,000.00 (See Docs. 123 - 129) from Jane Roe II, their own client, who they butchered and dumped in a hospital emergency room with a 911 call where they asked for the ambulance to come with "no lights, no sirens." She has thousands of dollars in medical bills from a 6 day stay in the hospital that the defendants never offered to pay. She was also out of work for a 6-week recovery time. Her lost wages were never compensated either. So much for caring about women. Oh, I forgot -- it's the money stupid.

³Jane Roe II's attorneys are Michael Hirsh, Esq., Hirsh & Heuser, P.C., 125 TownPark Dr., Suite 300, Kennesaw, GA 30144, 770/420-8224, Email: mrhirsh@bellsouth.net and Christopher F. Sapp, Esq., Law Office of Christopher F. Sapp, 1323 Wilderness Lane, Titusville, FL 32796-1012, 321/268-8758, email: sapp4039@bellsouth.net. These attorneys are representing Jane Roe, II pro bono. Donations are sorely needed to support these attorneys in their work on this case. Please send directly to one or both of these attorneys. Donations are NOT tax deductible.