When Congress enacted the Freedom of Access to Clinic Entrances Act in 1994, the advocates’ sales pitch was that it would address an alleged organized nationwide campaign of blockades, bombings, and violence against abortion clinics.
The last three decades, however, have unveiled the truth. The FACE Act has become exactly what it was designed to be: a cudgel to suppress otherwise lawful pro-life activity and expression and protect a now-nonexistent abortion right. Thankfully, there’s a solution.
The late 1980s and early 1990s were periods of sometimes volatile pro-life activism, with groups such as Operation Rescue and the Pro-Life Action Network organizing large-scale protests in several cities. Abortion advocates such as the National Organization for Women tried suing these pro-life activists under various federal laws, but time after time, federal courts—including the Supreme Court—turned them down.
Rahm Emanuel once counseled not to let a good crisis go to waste when you can use it “to do things that you think you could not do before.” That’s the real story behind the FACE Act. Abortion advocates used the distraction of some aggressive pro-life activism to push Congress for legislation that could instead be used to attack and suppress the broader pro-life movement.
In early 1993, then-Rep. Chuck Schumer, D.-N.Y., introduced the FACE Act in the House and Sen. Ted Kennedy, D-Mass., did so in the Senate. Each went through three iterations—as introduced, as revised by the relevant committee, and as passed by each chamber—before the House and Senate passed a single version.
Believe it or not, Schumer’s original bill was relatively modest: It prohibited physically obstructing “ingress or egress … to a medical facility” in order to “prevent … any person from obtaining reproductive health services,” imposed criminal penalties for only these specific actions, and allowed only those directly impacted by such obstruction to file a civil suit for damages.
But at each step of the legislative process, more and more pro-life conduct and expression was prohibited using vaguer and more opaque terms. The consequences for violations were also multiplied, and the bill’s original narrow focus on entering or exiting an abortion clinic was left far behind.
By the time President Bill Clinton signed the FACE Act into law in May 1994, it was a very different bill from the one Schumer had introduced.
The final version, for instance, prohibits interfering with any person “because that person or any other person or class of persons is obtaining or providing reproductive health services.”
Everyone knows what it means to physically obstruct access to a building. But what does it mean to interfere with a person? How does someone interfere with someone else because of what some other “group of persons” is doing?
The FACE Act not only imposes criminal penalties for these undefined activities, but it also allows anyone “aggrieved” by them to sue for an entire menu of damages. The House never held a hearing on the FACE Act, and neither the Senate hearing nor the bill itself gives any indication of what “aggrieved” means.
If that were not unclear enough, the final version also allows the attorney general of the United States or of any state to sue based on “reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation” of the FACE Act—whatever “reasonable cause to believe” or “injured by conduct” means.
And as the cherry on top, the law gives attorney generals permission to seek compensatory damages, punitive damages, and civil penalties.
Now that’s a full arsenal.
To no one’s surprise, this weapon was deployed exactly as its creators intended. The FACE Act’s language arguably covers both abortion clinics and pro-life pregnancy centers. And an amendment to the FACE Act introduced by Sen. Orrin Hatch, R-Utah, prohibited destroying property at a place of religious worship or obstructing or interference with persons exercising their right to religious freedom.
But for three decades, the vast majority of cases brought to enforce the FACE Act were against pro-life individuals.
In fact, while violence against churches and pro-life clinics was skyrocketing after the May 2022 leak of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Center, the Biden administration was franticly prosecuting dozens of pro-life activists who were guilty of nothing more than engaging in peaceful demonstrations at abortion clinics.
By December 2024, the Biden administration had brought nearly a quarter of all FACE Act cases during the law’s three-decade history. Almost none were for the estimated 311 attacks on churches and 95 attacks on pregnancy resource centers.
On top of that, the U.S. Department of Justice also began charging pro-life activists for conspiracy against rights, meaning that they now faced even greater penalties than were possible under the FACE Act. Then-Associate Attorney General Vanita Gupta declared repeatedly that this was to protect reproductive rights.
In other words, the FACE Act was now being coupled with other federal laws to reinvigorate an abortion right after Dobbs.
Thankfully, the Department of Justice began construing the FACE Act narrowly, and President Donald Trump pardoned several individuals, such as Paul Vaughn, who were targeted for engaging in peaceful pro-life activities. Unfortunately, that is just a Band-Aid that covers the dark history of the FACE Act’s enactment and enforcement.
Congress should consider stepping in and repealing the FACE Act.
At bottom, Congress had no authority to enact the FACE Act in the first place. Under the 10th Amendment, the federal government may exercise only particular delegated powers while the states have the indefinite remainder. Congress claimed in 1994 that its authority to enforce the 14th Amendment’s supposed right to abortion and to regulate interstate commerce justified enacting the FACE Act. Both of those arguments, if they were ever legitimate, have dissolved.
The Supreme Court, not the 14th Amendment, created out of whole cloth a right to abortion in 1973 and corrected that mistake in 2022. In fact, the court held in Dobbs v. Jackson Women’s Health Organization that its 1973 decision in Roe v. Wade “was egregiously wrong … from the day it was decided.” Congress had no authority then, and has no authority today, to enforce a right that does not exist.
Similarly, beginning only a year after Clinton signed the FACE Act, the Supreme Court began interpreting the commerce clause in a more reasonable way so that Congress cannot not use it to control everything in sight.
Congress, the court has said clearly, may regulate economic activity within one state that has a substantial effect on interstate commerce. Two requirements, not one. The FACE Act, however, does not regulate abortion clinics or the services they provide. It regulates interactions between people and prohibits destruction of property, which are certainly not economic activities.
We just published a Legal Memorandum expanding on each of these arguments and, this Thursday, The Heritage Foundation is hosting an event featuring Rep. Chip Roy, R-Texas, who has introduced a bill to repeal the FACE Act.
The bottom line is that the FACE Act is an unconstitutional ideological weapon that has been used to suppress legitimate, ordinary pro-life activity and expression. It should not have been enacted in 1994 and it should be repealed today.
