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The Constitutionality of the Federal Clinic Access Act
For IMMEDIATE RELEASE
Monday, June 27, 1994
On May 26, President Clinton signed into law the Freedom of Access
to Clinic Entrances Act, or FACE, as it is known. The law is intended to
stop the rising tide of violence against abortion providers and their
patients. Days later, the Council for Life Coalition and several
individuals filed a lawsuit in the U.S. District Court for the Southern
District of California to block enforcement of FACE, charging that it will
infringe antiabortion protesters' constitutional rights to free expression
and freedom of religion. Several other antiabortion organizations and
individuals have filed additional lawsuits to stop enforcement of FACE.
The American Civil Liberties Union is defending FACE against the
proliferating attacks. As the nation's preeminent advocate of both free
speech and reproductive rights, the ACLU is uniquely qualified to evaluate
the constitutionality of FACE. We will file friend-of-the-court briefs in
support of the law, demonstrating that FACE, by its terms, does not
restrict constitutionally protected activity.
Over the last two decades in which abortion has become a highly
politicized issue, the ACLU has worked vigorously to guarantee that both
women seeking abortions and demonstrators protesting abortion are able to
exercise their constitutional rights. The ACLU was the first
organization, years before the U.S. Supreme Court decided Roe v. Wade, to
assert the right of all women to obtain abortions. Lawyers in the ACLU
Reproductive Freedom Project argued several of the critical reproductive
rights cases in the Supreme Court in recent years, including Hodgson v.
Minnesota and Planned Parenthood v. Casey.
The ACLU has also defended the rights of antiabortion protesters,
among others. For example, the ACLU of Florida persuaded legislators to
redraft portions of a proposed state clinic access bill that imposed
overly broad restrictions on demonstrators. The ACLU of Connecticut
publicly demanded that police stop using "pain compliance" techniques on
clinic demonstrators and sponsored the introduction of legislation to
prohibit the use of such techniques on peaceful protesters.
The ACLU has prepared a friend-of-the-court brief in the California
challenge to FACE that argues that the law as drafted is constitutional.
FACE prohibits the use of force, true threats of force, physical
obstruction and property damage. None of these activities is protected by
the First Amendment. Individuals wishing to express their views about
abortion have the same rights as everyone else in this country to speak,
pray, chant, sing and demonstrate. These rights are undisturbed by FACE.
But like everyone else, they have no right to communicate their message by
shooting doctors, kidnapping clinic staff, spraying butyric acid on clinic
property, destroying medical equipment, or physically blockading access to
reproductive health facilities. Those who engage in this conduct may
believe themselves to be promoting a vision of morality, but the First
Amendment does not immunize their vigilantism.
Because FACE does not penalize protected expressive activities,
claims of content or viewpoint discrimination fail. Just as Congress was
free during the civil rights struggles of the 1960s to provide special
protection for polling places, voters, and those assisting others to
exercise their franchise, Congress is free now to respond to the
escalating violence at reproductive health facilities by protecting these
facilities, their staffs and their patients. So long as protected
expression remains unfettered, as it does under FACE, Congress may address
any problem it views as pressing.
Because FACE restricts no protected activity, it is not overbroad.
Because its key terms are either explicitly defined in a manner that
avoids infringement of free speech or else readily susceptible to
interpretation in line with established constitutional principles, the
statute is not vague.
Finally, neither the Free Exercise Clause nor the Religious Freedom
Restoration Act entitles individuals to engage in the prohibited conduct
with impunity. Guarantees of religious freedom are not shields for
violence against or physical obstruction of others exercising protected
rights. Moreover, FACE does not target any religious practice or belief
for discrimination. It punishes violations of its terms regardless of
whether the perpetrators are motivated by religious belief or secular
From the outset, the ACLU worked in Congress to ensure that FACE
would not abridge the First Amendment rights of peaceful protesters. The
ACLU's Washington Office took an active role in analyzing the bill and
proposing revisions aimed at providing full protection for the
constitutional rights of individuals on both sides of the abortion debate.
Moreover, we intend to monitor enforcement of the law on an ongoing basis
to ensure that it is not misinterpreted and misapplied to restrict
FACE has already attracted the media spotlight and is certain to
retain a high level of public interest as it generates civil litigation
and criminal prosecutions. Seven challenges to block the enforcement of
FACE have now been filed in federal courts in Arizona, California, the
District of Columbia, Florida, Louisiana, and Virginia, and the U.S.
Attorney in Milwaukee, Wisconsin has filed the first criminal complaint
under the statute. As you frame for the public the important
constitutional issues at stake, we hope that you will draw upon the ACLU's
unsurpassed expertise in striking the sensitive balance between competing
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