It’s Time to Repeal the FACE Act

As a devout Catholic, Mark Houck believes every human life is precious, created by God, and worthy of protection. It was this belief that led him to often pray with his 12-year-old son outside a Philadelphia abortion facility.

In October 2021, a Planned Parenthood escort repeatedly got in the face of Houck and his son while making vulgar comments toward them, witnesses said. Houck allegedly responded by pushing the abortion escort in an effort to protect his son. While state and local authorities found no cause to prosecute Houck over the incident, the Biden Department of Justice felt differently.

When Houck learned that he may be prosecuted, he offered to turn himself in if he were indicted for any crimes. Instead, his attorney said, the FBI sent “twenty heavily armed federal agents” to Houck’s house in the early morning hours, pointed at least five guns at him, his wife, and his children, and then arrested him. The FBI later attempted to quell concerns about the report by claiming it was an “overstatement” and that the tactics used were “in line with standard practices.”

A federal jury took less than three hours to find Houck not guilty of the charges brought against him. Unfortunately, many pro-life advocates prosecuted under the Freedom of Access to Clinic Entrances (FACE) Act haven’t received such good news.

What is the FACE Act?

The FACE Act was passed by Congress in 1994 and signed into law by President Bill Clinton. The law protects people from injury, intimidation, or interference when they provide or seek out so-called “reproductive health services,” which include abortion facilities and pregnancy centers, or exercise their right to worship. More specifically, the act bars the use of or threats of force, obstruction, and property damage intended to disrupt religious worship or the administration of reproductive health care services.

While a plain reading of the law makes clear that it covers all facilities and people who provide reproductive health services, enforcement of the act has been remarkably one-sided against pro-life advocates.

Unequal prosecution of FACE Act violations

Soon after the U.S. Supreme Court overturned Roe v. Wade in June 2022, the Biden administration began a campaign to promote abortion nationwide. On top of attempting to force pro-life pharmacies to dispense abortion drugs and trying to twist federal law to override state law and mandate emergency room abortions, this push has included aggressively prosecuting pro-life protesters using the FACE Act.

Under the FACE Act, first-time offenders face a maximum penalty of 12 months in jail and a $15,000 fine, while repeat offenders face up to three years of jail time and $25,000 in fines. But those punishments apparently were not enough for the Biden administration.

According to WORLD, around the same time as the decision in Dobbs v. Jackson Women’s Health Organization, the administration began pairing charges of FACE Act violations with charges of “conspiracy against rights” for obstructing the right to so-called “reproductive health services.” The felony conspiracy charges carry much steeper penalties, including prison sentences of up to 10 years.

In March 2021, Paul Vaughn and a few other pro-life advocates preached and sang hymns at an abortion facility in Mt. Juliet, Tennessee, while some of them blocked the door. Almost a year and a half later, armed FBI agents showed up on Vaughn’s doorstep and arrested him in front of his 11 children.

Vaughn and five other pro-life advocates were convicted of both a FACE Act violation and a felony count of conspiracy against rights. Vaughn was sentenced to three years of supervised release, and his fellow advocates could each face maximum sentences of 10 and a half years in prison and fines as high as $260,000.

This punishment far outweighs the crime. Unfortunately, it is not an isolated incident.

The DOJ unsealed three indictments between March 2022 and February 2023 in which it charged pro-life advocates with conspiracy against rights over what appeared to be standard FACE Act violations.

Overall, the DOJ brought at least 26 charges against pro-life individuals under the FACE Act in 2022. What were the total number of charges against abortion activists who obstructed or vandalized pro-life pregnancy centers in the wake of the Dobbs decision that year? Zero.

The FACE Act is constitutionally suspect

The DOJ cannot unequally apply federal laws to silence or intimidate those with views that oppose the administration’s. By targeting pro-life advocates with unnecessarily harsh penalties, the Biden administration abused its power and politicized the FACE Act against those who oppose abortion.

The First Amendment prohibits the federal government from discriminating on the basis of viewpoint. The Biden administration’s actions went far beyond mere prosecutorial discretion into the realm of selective enforcement. The Biden Department of Justice’s consistent enforcement of the FACE Act against pro-life advocates, paired with its unwillingness to enforce the law against those vandalizing pregnancy centers, points to a biased application that likely violated the First Amendment.

What’s more, the FACE Act is fraught with constitutional issues regardless of how it’s enforced. Any law passed by Congress must be based on powers enumerated in the Constitution, a test that the FACE Act struggles to pass.

Historically, the act has been justified on the basis of the Commerce Clause, which grants Congress the power to regulate interstate commerce. That’s not an unlimited power. The criminal acts regulated by the FACE Act—vandalism and destruction of facilities that provide reproductive health services—are not commercial activities. It’s difficult to see how Congress has authority under the Commerce Clause to regulate such activities. These kinds of criminal actions are usually enforced at the state and local levels.

The future of the FACE Act

Now that the Biden administration is out of power, what will become of the FACE Act?

Pro-life politicians and other advocates are taking action. In October 2023, Sen. Mike Lee of Utah and Rep. Chip Roy of Texas introduced legislation to repeal the Act.

“The Biden DOJ has weaponized this constitutionally suspect law against pro-life sidewalk counselors while failing to protect pregnancy centers and churches from violent attacks,” Sen. Lee said in a statement. While the legislation has not passed, it signals a growing distaste for the FACE Act among some lawmakers.

In addition, Mark Houck filed a lawsuit in May 2024 asking a federal district court to hold the DOJ accountable and award damages for an unjust prosecution. In the suit, Houck’s attorneys said his arrest by armed FBI agents at his home was “a shocking display of the political animus against the pro-life movement harbored at the highest levels of the Department of Justice.”

Most recently, my colleague Erin Hawley, Vice President of the ADF Center for Life and Regulatory Practice, testified alongside Paul Vaughn and others during a House Judiciary subcommittee hearing.

In her remarks, Erin called out the Biden administration’s one-sided use of the act and laid out the case for repealing the legislation. “Repealing the FACE Act would not mean that criminal conduct could occur with impunity or without legal consequence,” she said. “Every state has laws that regulate trespass, assault, disorderly conduct, unlawful assembly, and the like.”

Repealing the FACE Act would be welcome news not only for pro-life advocates but for all Americans who care that our laws  comply with the Constitution and are enforced evenly. It’s time for the FACE Act to be repealed.