Editor’s note: The following article is a version of testimony given by ADF Senior Counsel and Vice President of the Center for Life and Regulatory Practice Erin Hawley to the House Judiciary Subcommittee on the Constitution and Limited Government on Dec. 18, 2024.
One of the most enduring and crucial features of the American constitutional design is its commitment to the equal application of law. John Adams famously described the Republic as “a government of laws, not of men”—meaning that, in America, the rule of law comes before politics. Yet the Biden administration has broken this promise; it has consistently put politics above the rule of law in its one-sided application of the FACE Act to target pro-life individuals.
The text of the FACE Act is clear. Its protections apply to “reproductive health services,” which is broadly defined to include not only abortion facilities but also pregnancy centers. The FACE Act also protect churches and other houses of worship from violence, vandalism, and intimidation.
Instead of applying the FACE Act in an evenhanded way, the Biden DOJ has weaponized the Act to target pro-life advocates. Since 2021, it has brought criminal or civil cases under the FACE Act against 55 individuals, 50 of them pro-life. It has charged 24 FACE Act cases but only two in defense of pregnancy centers.
Since the Dobbs opinion was leaked in May of 2022, there has been a rash of violence and intimidation towards pro-life organizations. Close to 100 pregnancy centers have been vandalized, spray painted, or firebombed. Yet only 8% of the Biden DOJ’s FACE Act cases have been filed to protect pregnancy centers. As for churches—again expressly protected by the text of the FACE Act—the Family Research Council identified 436 incidents of threats or violence against churches in 2023 alone—more than double the number in 2022, and eight times the number in 2018. Shockingly, the Biden DOJ has failed to initiate a single FACE Act prosecution to protect houses of worship.
To take just a few examples of the violence confronting pro-life organizations:
- On June 7, 2022, CompassCare’s office in Buffalo, New York, was firebombed and tagged with spray paint reading, “Jane was here.”
- Three days later, on June 10, the Gresham Pregnancy Resource Center in Oregon was set on fire.
- And on June 25, Life Choices in Longmont, Colorado, was firebombed and spray-painted with the message, “if abortions aren’t safe, neither are you.”
Not only has the Biden Justice Department demonstrated bias in its refusal to prosecute violence against pro-life organizations, but for the first time in the FACE Act’s history, the Biden DOJ has used the FACE Act as a hook to tack on an additional “conspiracy against rights” felony charge. This charge comes with a potential ten-year prison sentence—even for nonviolent civil disobedience—showing how the Biden DOJ has upped the ante placing pro-life Americans in as much jeopardy as possible.
Take Eva Edl an 89-year-old survivor of a Soviet concentration camp who sat in front of the entrance to an abortion clinic in a wheelchair. Because the Biden DOJ tacked on a conspiracy charge, Eva could face a sentence of up to 11 years in federal prison along with hundreds of thousands of dollars in fines all for singing and praying from her wheelchair.
The Biden DOJ’s one-sided use of the FACE Act raises serious concerns about viewpoint-based selective enforcement. While the Executive Branch has discretion to decide whether to prosecute a case, it “cannot selectively enforce the law in a way that violates the Constitution.” And as the courts have held, viewpoint-based prosecution “is antithetical to a free society.”
The Biden DOJ has “consistently declined” to enforce the FACE Act against individuals attacking pregnancy centers and churches “while vigorously enforcing” the Act against pro-life advocates. This likely violates the First Amendment.
To make matters worse, the FACE Act is a questionable exercise of Congress’s Commerce Clause authority. The federal government is one of limited, enumerated powers. Thus, in United States v. Lopez and United States v. Morrison, the Supreme Court struck down two criminal statutes because they had nothing to do with commerce. These cases rejected the argument that Congress may regulate any crime so long as it has an aggregate effect on an economic activity—that would obliterate the distinction between what is local and what is national.
To be clear, there’s never any excuse for violence in expressing one’s viewpoint. Repealing the FACE Act would not mean that criminal conduct could occur with impunity and without legal consequence. Every state has laws that regulate trespass, assault, disorderly conduct, unlawful assembly, and the like.
In sum, the FACE Act has been weaponized to target pro-life activity while leaving pregnancy centers and churches largely unprotected. This is not the even-handed application of law the American people deserve.
