Just as federal law specifically penalizes hate crimes, the law also makes it a federal crime to threaten or commit violence against abortion providers, or to vandalize their clinics. Yet as The Washington Independent revealed last week, the criminal law was not being enforced.
The day after Dr. George Tiller was murdered, we obtained data revealing that under the Bush administration, criminal enforcement of the federal law designed to protect abortion providers and clinics had declined by more than 75 percent over the last eight years.
But there’s also a civil component to that federal law, known as the Freedom of Access to Clinic Entrances Act, or FACE Act. That part of the law allows the attorney general to seek an injunction and compensatory damages for anyone who’s been harmed by any activity that violates the law. And it turns out that the Department of Justice over the last eight years didn’t use that part of the law to protect abortion providers, either.
Under the FACE Act, in addition to criminal charges, the Justice Department can obtain damages and an injunction against anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with” anyone who provides or receives reproductive health services. It also allows the government to prosecute and sue anyone who “intentionally damages or destroys the property” of an abortion clinic, because they are frequently vandalized as part of protesters’ intimidation tactics. The clinic where Dr. Tiller worked, for example, was repeatedly vandalized, including just days before his murder.
Yet despite these broad powers that Congress granted the attorney general in 1994 to prevent and combat violence against abortion clinics and providers, the Bush administration almost never used them. From 2000 until 2008, during the eight years of the Bush administration, the Justice Department filed only one civil case under the FACE Act. From 1994 – 1999, in contrast, in just five years of the Clinton administration, the Department filed 17 civil cases under the FACE Act — in addition to its much heavier load of criminal cases that we’ve reported before.
It’s possible, of course, that the law was so effective in its early years that it deterred all future violations. “I do think that the statute was very effective,” and “for the most part there were fewer complaints coming to us,” said Cathleen Mahoney, vice president and general counsel of the National Abortion Federation and director of the Justice Department’s Task Force on Violence Against Reproductive Health Care Providers until 2006.
But crime statistics provided by the National Abortion Federation show that violence did not stop when the Bush administration came into office. The group reports 3,291 acts of violence against abortion providers in the United States and Canada between 2000 and 2008 — and that’s only the number of incidents they know about. (The total number of incidents in the U.S. alone was not available.) The group warns on its website that “actual incidents are likely much higher.” That number does not include threats, vandalism and harassment, which are also violations of the FACE Act.
The NAF — the organization that most closely tracks such data in the United States — also reports that between 2000 and 2008 there were at least 17 cases of “extreme” violence against abortion providers in the United States, such as arson, stabbing and bomb attacks. At least 607 letters threatening Anthrax contamination (they did not actually contain anthrax) were sent to abortion providers between 2000 and 2002 alone. During the entire eight years of the Bush administration, the federal government prosecuted only 11 individuals for any acts of violence against abortion clinics or providers.
Former Attorney General John Ashcroft, although opposed by many abortion-rights advocates for his vehement opposition to keeping abortion legal, did prosecute the infamous anti-abortion activist and convicted felon Clayton Lee Waagner for the anthrax threats, which attracted significant public attention because they were sent just after lawmakers and news organizations received letters containing anthrax spores, prompting nationwide fears of deadly biological terror attacks.
Waagner was an easy target: a fugitive who’d escaped from jail in February 2001 while awaiting sentencing on federal weapons charges, he was already on the FBI’s Top Ten Most Wanted List, the U.S. Marshals Service Fifteen Most Wanted List, and the Ten Most Wanted List of the Bureau of Alcohol, Tobacco and Firearms. He was arrested in November 2001 and promptly claimed responsibility for over 550 anthrax threat letters sent to abortion providers in October and November. The letters were signed by the Army of God, an extremist anti-abortion group that openly advocates violence against specific physicians who provide abortions. Waagner’s supporters in the Army of God, however, were not prosecuted or even sued for civil damages or injunctions under the FACE Act, although the group was responsible for distributing a manual that supplies detailed instructions for attacking abortion clinics, manufacturing bombs and cutting off the hands of abortion doctors, according to SourceWatch. The FBI has characterized the prosecution of Waagner as a “counterterrorism case,” suggesting that the “Army of God” is considered a domestic terrorist organization by federal law enforcement.
Yet despite the prosecution of Waagner in 2001, the Army of God today continues to do much the same thing. The group and its members continue to support and advocate the murder of abortion providers. Its Website, for example, on Wednesday celebrated the Tiller murder in this banner headline:
“The lives of innocent babies scheduled to be murdered by George Tiller are spared by the action of American hero Scott Roeder. George Tiller the Babykiller reaped what he sowed and is now in eternal hell.”
It commends previous convicted murderers of abortion doctors as “heroes,” and continues to host the “Nuremberg Files,” a notorious list of the names of abortion providers and recipients, with a line through those that have been killed and names grayed of those who have been murdered. (The Ninth Circuit Court of Appeals in 2002 found that these constituted threats to the doctors.)
As Rachel Maddow recently described the Army of God’s current Website on MSNBC:
“You can actually scroll through pages and pages of mug shots and descriptions of bombings and shootings and murders and attempted murders — all praising the perpetrators, and even suggesting ways to get away with the same types of crimes that these people committed but you could do it without getting caught.”
Although such conduct has in the past led to violence, the threats are often not prosecuted by local police. According to Dr. Susan Robinson, who used to perform abortions at the same Wichita clinic as Dr. Tiller did before it was closed: “they allow the anti-abortion protesters to set up dozens of crosses and leave them all day. Dr. Tiller went to the city attorney over the crosses, and complained that people block the clinic driveway,” she told journalist Amy Goodman. “He told me that the city attorney said, ‘I would rather be sued by George Tiller than the anti-abortion folks.’”
The federal law was enacted in part to fill in the gaps when local authorities refused or lacked the resources to bring charges. “Often local police won’t enforce the local laws against trespassing,” explained Mahoney, the former federal prosecutor. “It’s politically charged and local police want to stay out of it.” During her tenure at the Department of Justice, Mahoney said it was the Civil Rights Division of the Justice Department that was charged with enforcing the FACE Act. That’s the same division that Inspector General reports and Congressional hearings eventually revealed repeatedly made hiring and enforcement decisions based on conservative political ideology rather than merit.
In the one situation in the last eight years that the Bush Justice Department decided did merit a lawsuit, in 2007, the charges were so serious that it’s not clear why the administration filed a civil suit rather than criminal charges. The federal government sought only an injunction — essentially, a court order telling the defendant to stop.
Yet this was no mere schoolyard-style harassment. According to the legal complaint filed by the Justice Department, John Dunkle, another member of the “Army of God”, had been publishing a monthly Web newsletter “encouraging readers of his publications to use deadly force against specifically identified reproductive health clinic physicians and staff, providing instruction on how to employ deadly force tactics; provoking physical and verbal confrontations with reproductive health clinic physicians, staff and patients at various clinics” and “publishing internet postings containing photographs and the home addresses of reproductive health clinic physicians and staff,” among other things.
The government also claimed that he “threatened a specific female clinic physician until she ceased providing reproductive health services in fear of the Defendants’ threats to her life.”
Those threats included “explicitly encourag[ing] his readers to kill the targeted individual by shooting her in the head”; publishing her name, photo and home address on his Web page and blog; and publishing instructions “regarding the specific means to kill the targeted individual, as well as how to escape detection upon the commission of her murder.” Such postings dated back more than two years, identifying the same person.
There is no question that such threats are criminal under the federal law, say legal experts. “Physical obstruction is not protected, violence is not protected and true threats are not protected,” said Louise Melling, Director of the ACLU’s Reproductive Freedom Project, which has submitted several amicus briefs to courts defending the constitutionality of the federal law. A “true threat” has been defined by the courts has a threat that would reasonably be interpreted by the person hearing it as a serious threat to their safety.
Yet in the case of John Dunkle, whose threats caused a reproductive health provider to quit her profession, the government did not seek criminal penalties or even any monetary damages to compensate the victims and deter future crimes; it simply asked the court to tell him to stop.
Department of Justice spokesman Alejandro Miyar said that department officials decide whether or not to prosecute or seek damages in cases “on a case-by-case basis, and a number of factors are taken into account, including — among others — whether there is an identifiable subject and whether the matter is being pursued by local officials.” He was not aware of whether Dunkle had been prosecuted for related acts under state law, and there was no indication in the documents filed in the federal case that he had been.
Threats against abortion providers appears to have had a serious impact on the availability of the procedure, and particularly on the ability of women to obtain legal later-term abortions, even when the pregnancy threatens the woman’s life. According to the Guttmacher Institute, a nonprofit organization focused on sexual and reproductive health research, only two percent of all abortion providers in the United States currently provide such procedures, which are most heavily targeted by extremist anti-abortion groups. Women most commonly seek such abortions due to abnormalities of the fetus and threats to a woman’s health or life, and in many states they’re only legal if the woman’s health or life is in danger. Dr. Tiller and his clinic were therefore frequent targets of both violent threats and actions, up until the day before his death.
The FACE Act was adopted to prevent and prosecute this sort of violence, in part because Congress concluded that existing state laws and local law enforcement were unable to do the job on their own.
When President Clinton signed the FACE Act in 1994, he said: “We simply cannot — we must not — continue to allow the attacks, the incidents of arson, the campaigns of intimidation upon law-abiding citizens that (have) given rise to this law,” citing the murder of Dr. David Gunn in Florida in 1993, and the shooting of Dr. Tiller in both arms outside his clinic in Wichita that same year.
“No person seeking medical care, no physician providing that care should have to endure harassments or threats or obstruction or intimidation or even murder from vigilantes who take the law into their own hands because they think they know what the law ought to be.”
The statistics on enforcement of the FACE Act by the Justice Department suggest that during the Bush administration, protecting those physicians was no longer a high priority.