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Dr. Tiller, FACE, and the Failure of the Bush DOJ to Enforce the Law

You are about to hear some folks on your TeeVee talk about the FACE Act. That stands for the Freedom of Access to Clinics Entrances Act. The man who shot Dr. Tiller may have violated it repeatedly, and the failure to prosecute him then, left him free to murder Dr. Tiller now.

Discussions on laws regulating abortion protest mounted after individuals and groups associated with the abortion protest movement had begun resorting to more intrusive and extreme methods, such as obstructing clinics, vandalizing property, the intimidation of clinic patients and personnel, tresspassings, clinic bombings and arsons, assaults, kidnappings, and murders. Prior to the passing of FACE, the U.S. Supreme Court had ruled that other existing statutes were not applicable to control anti-abortion protest. In 1993, the Court decided in Bray v. Alexandria Women’s Health Clinic that an 1871 statute against the deprivation of civil rights by private groups (the so-called ‘Ku Klux Clan Act’) could not be applied to prevent abortion clinic blockades. In 1994, the Court ruled that abortion clinics need not show an economic interest to bring RICO action against anti-abortionists should they engage in racketeering activity. Yet, in 2003, the Supreme Court decided that anti-abortion protest did not fit the definition of extortion in the Hobbs Act, which requires the obtaining of someone’s property under threat of force (National Organization for Women v. Scheidler 1994; Scheidler v. National Organization for Women 2003).


The FACE Act makes it a crime to 1) obstruct a clinic entrance, 2) interfere with someone trying to worship in place of worship, or 3) do property damage to a clinic. Dr. Tiller’s protections under FACE were apparently violated in all three ways:

Tiller’s clinic, Women’s Health Care Services, was bombed in mid-1980s. In the ’90s, it was the subject of blockades, bomb threats, and a shooting attack — Tiller sustained gunshots to both arms. Just this month, Tiller’s clinic was vandalized, with security cameras and outdoor lights damaged and the downspouts plugged, causing rain to pour through the roof. Protesters routinely gathered outside Tiller’s church. In 2007, two men were arrested for disrupting services to speak out against him. Tiller often had a bodyguard by his side.


Rachel Maddow and the Washington Independent (see video above) are reporting that enforcement of the FACE act by the DOJ which had averaged about 20 per year (with a high of 17 in 1997) under the Clinton administration fell to an average of 2 per year (with 4 being the highest yearly total) under the Bush administration. Yep, and 80% fall off in enforcement of any criminal statute sends a pretty strong message to the "evil doers" that it’s OK to do their particular brand of evil.

Here’s what the DOJ Civil Division Resource Manual has to say about the FACE Act. It doesn’t say anything about not enforcing it, does it?

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.

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