Abortion providers face increasing threats. Does DOJ have their backs?

Yesterday, Axios reported on something many Americans have feared since the leak of a draft opinion overturning Roe v. Wade: “a potential surge in political violence” once that opinion is finalized.

That potential surge is not just conjectural; it is the assessment of the intelligence arm of the Department of Homeland Security. In a recent, unclassified memo obtained by Axios and NBC News — much of which relies on social media and news reports, as opposed to intelligence gathering — DHS reveals the May 2 leak “prompted a significant increase in violent threats” from a “broad range” of domestic violent extremists that are aimed at a similarly wide range of targets, from Supreme Court Justices and their clerks to health care providers and reproductive health care facilities. And that memo further recounts the violence propagated by opponents of abortion rights since Roe was decided in 1973:

While acknowledging this history, DHS notes that in a post-Roe era, “grievances related to restricting abortion access could fuel violence by pro-choice abortion-related violent extremists” as well. I neither discount that possibility nor dispute that threats to any Supreme Court Justice and/or their clerks, whether they materialize or not, are unacceptable and warrant investigation. Fortunately, according to DHS’s memo, both the U.S. Supreme Court Police and other law enforcement agencies within the D.C. region are investigating violent threats toward some Justices and the Supreme Court building.

Yet it’s inescapable that historically, abortion-related threats — and execution of such threats — have been addressed to doctors who perform abortions and the clinics where they work. In the early 1990s, abortion providers were besieged by a series of clinic occupations and blockades led by Operation Rescue and affiliated people, including the 1991 “Summer of Mercy” demonstrations in Wichita. “[F]linging themselves under cars, sitting by the hundreds at clinic doorways and blocking women from entering as they read them Scripture,” Operation Rescue members succeeded in shutting down all three of Wichita’s abortion clinics for more than a week. More than 1,600 people were arrested.

Several years later, as a Hill staffer, I was haunted by how easily a single person, Neal Horsley, could terrorize hundreds of abortion providers online. On his website listing roughly 200 “abortionists”:

And these threats were not simply abstractions. Dr. Barnett Slepian, an OB/GYN and abortion provider in Buffalo, New York, had endured “years of picketing and harassment” and even moved homes “in hope of avoiding protesters;” two years later, in 1998, he was shot and killed by a sniper’s bullet through a window of his home; his name was crossed out on Horsley’s website within 36 hours. His was the third assassination of a doctor who performed abortions in just five years.

In a post-Roe world, the increasing polarization of our national politics will be mirrored in the poles of abortion access from state to state. Indeed, it is happening already. As we await the final Dobbs decision, some states are working aggressively – and creatively – to expand abortion access and protect its residents from abortion-related lawsuits; others, however, are competing in a perverse contest for “most pro-life state in the country,” enacting a series of overlapping and increasingly draconian abortion bans and criminal statutes that, coupled with the anticipated result in Dobbs itself, could embolden violence against reproductive health care providers. (Oklahoma, the current leader in this race, even enacted a ban on abortion from fertilization forward, unless necessary to save the woman’s life or where pregnancy results from rape or incest that is reported to law enforcement.)

And as Reveal from the Center for Investigative Reporting observed this month, “as abortion is curtailed or banned across the country, the last remaining open clinics will offer protesters fewer and clearer targets.” Therefore, even in states where future access is greater than it is today, clinicians and clinics nonetheless may be at heightened risk of anything from doxxing and property damage to physical injury or death.

The question is what, if anything, the Justice Department is prepared to do to prevent and punish such violence. It’s not as if it lacks the tools. DOJ has the power to investigate and prosecute those who step over the line from peaceful protest to intimidate, obstruct, or physically harm those providing — or seeking — reproductive health services.

And in doing so, it need not rely on broad criminal statutes, but can harness a law specifically designed to protect clinic access. Passed in May 1994, the Freedom of Access to Clinic Entrances Act, or FACE Act, “prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services” and “prohibits intentional property damage of a facility providing reproductive health services.” And our current Attorney General, Merrick Garland, is well aware of the FACE Act’s potential power: Last September, in the wake of Texas’s enactment of its six-week abortion ban, Garland promised the Justice Department would “not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.”

Still, invocations of the FACE Act, like this recent indictment in Washington, D.C., remain few and far between, as DOJ’s own summary of its recent cases suggests. And although the Biden administration has initiated six new FACE cases, according to one count, over the last 15 months, it’s also indisputable that FACE prosecutions have declined over time. Of the 101 FACE cases filed since 1994, nearly half -- 45 cases -- were filed during the Clinton years; by contrast, the Trump Administration filed a total of 8 in one term.

Of course, it’s possible that the Justice Department rarely pursues criminal charges under the FACE Act because its very existence deters clinic violence and threats thereof. It’s also true that the kinds of threats made when the FACE Act was enacted in 1994 are not necessarily the most prevalent ones in the digital age. Reveal from the Center for Investigative Reporting, reflecting on threats to clinics in that state, noted that thirty years ago, “anti-abortion activists were building barricades from scrap metal and chaining themselves to clinic doors. Now they’re wielding smartphones from a sliver of shared land and badgering the local police department, backed by powerhouse lawyers. What were issues of physical trespassing have morphed into questions about invasions of privacy.” On the other hand, however, there are signs that conduct that does fall within the FACE Act, notably threats and uses of force, are rising, not waning. In its most recent survey of violence and disruption to abortion providers, the National Abortion Federation found death threats and threats of harm more than doubled between 2019 and 2020; its member clinics also reported a 125% increase in assault and battery outside clinics. Another recent analysis of 4,000 police call records for every Florida clinic from 2016 through 2021 found “police calls related to clinic harassment, disturbance and violence doubled over the past six years.”

In the meantime, Merrick Garland met yesterday with officials within his own department and the Supreme Court to “discuss the security needs of Justices and the Court;” he announced that at his “direction,” the U.S. Marshals Service has “accelerated the provision of around-the-clock security at the homes of all Justices.” He also emphatically stated a no-tolerance policy for “violence or threats of violence against judges or any other public servants at work, home, or any other location.” That no-tolerance policy sounds familiar, though; it echoes Garland’s months-old pledge to enforce the FACE Act vigorously.

Since the draft opinion was leaked, the Biden administration has vowed to undertake a “whole of government” approach to protecting abortion rights and access. The FACE Act, which has withstood multiple challenges to its constitutionality, is an easy place to start. Whether the Justice Department has the will to treat threats against reproductive health providers — and the people who need their services — as seriously and swiftly as it has responded to threats to the Supreme Court remains to be seen.