- a hospital,
- clinic,
- physician's office, or
- other facility, and includes
- medical,
- surgical,
- counseling, or
- referral services relating to the human reproductive system (including services relating to pregnancy or the termination of a pregnancy). 18 U.S.C. § 248(e)(5)
Courts have held that the Act's protections extend not only to physicians but also to clerical workers and escorts at reproductive health facilities.
Meaning of Terms
FACE contains fairly straightforward offense language -- requiring an intentional threat of force, use of force, obstruction or damage to property. What is unique about the statute, however, is the motive requirement. In addition to showing that an individual engaged in the offense conduct knowingly, the government (or a private plaintiff in some civil FACE cases) must show that an individual engaged in the offense conduct for the purpose of injuring, intimidating or interfering with persons seeking or providing reproductive health services. This type of intent evidence often is garnered through circumstantial evidence from individuals who know a subject or from the subject's conduct in advance of an incident. A subject's comments or conduct with respect to reproductive health services providers or recipients at the specific site of an offense or at other sites might be relevant to a determination of intent.
Conduct found illegal under FACE includes:
- physical attacks on clinic employees and patient escorts;
- attempted arson of clinic facilities;
- blockades of clinic entrances by persons or vehicles; and
- threats of bodily harm communicated to providers or recipients of services.
- Penalty
The penalty provisions of FACE are as follows:
- In the case of a first offense, [a person shall] be fined in accordance with this title, or imprisoned not more than one year, or both; and
- In the case of a second or subsequent offense after a prior conviction under this section, [a person shall] be fined in accordance with this title, or imprisoned not more than 3 years, or both;
except that for an offense involving exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be not more than six months, or both, for the first offense; and the fine shall . . . be not more than $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; and except that if bodily injury results, the length of imprisonment shall be not more than 10 years, and if death results, it shall be for any term of years or for life.
The statute also provides for civil remedies for violations that meet the above-mentioned elements of a FACE case. These remedies are available to aggrieved private parties, the federal government, or state governments. Courts may impose temporary or permanent injunctive relief, compensatory and punitive damages, certain additional penalties where the government brings the action, and legal fees where a private plaintiff brings suit. The civil aspects of FACE will be discussed more fully below.
A number of federal cases brought under FACE have raised constitutional challenges on the basis of the First Amendment and the commerce clause, but federal courts consistently have upheld FACE against these constitutional challenges.
Other Applicable Federal Statutes
Damage or Destruction of Property Used in Interstate Commerce, 18 U.S.C. § 844(i)
Section 844(i) of Title 18 establishes a federal criminal offense where an individual "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce . . . ." Since many reproductive health services clinic serve patients from other states and order medical supplies from other states, clinics may constitute property used in interstate commerce. Charges under § 844(i) frequently have been brought in cases of arson or bombing of reproductive health services clinics. The charge carries a penalty of 5 to 20 years absent physical injury and 7 to 40 years if injury results. Where death results from a violation of this statute, the offender is eligible for imposition of the federal death penalty.
Use of a Firearm in the Commission of a Felony, 18 U.S.C. § 924(c)
Section 924(c) prohibits the use of a firearm in the commission of a felony. Penalties for violations are mandatory prison sentences: 5 years for possession of a firearm; 7 years if the firearm is brandished during the offense, and 10 years if it is discharged. Penalties for subsequent offenses are significantly increased, as are penalties for the use of certain illegal and proscribed firearms and silencers. The use of a firearm in the commission of a felony offense related to a clinic might warrant prosecution under § 924(c). Where death results from a violation of this statute, the offender is eligible for imposition of the federal death penalty.
Use of the Mails or Commerce for Bomb or Fire Threats, 18 U.S.C. § 844(e)
Section 844(e) proscribes the use of the U.S. Mail, phone, or other instrument of interstate commerce to communicate a threat or to convey false information concerning a threat. Cases brought under § 844(e) generally involve bomb or arson threats. This offense carries a penalty of up to 10 years imprisonment.
Threats Made by Use of Interstate or Foreign Commerce,18 U.S.C. §§ 875 and 876
These statutes prohibit the use of interstate or foreign commerce, generally telephones and the mails, to convey threats to kidnap or injure another. Increased penalties are provided where the threat is made with the intent to extort a "thing of value." Courts have found that actions taken for the purpose of harming a business (including a clinic) may constitute an intent to extort a thing of value. The Department of Justice recently used § 875 in charging a case involving computer-generated threats made by electronic mail to, among others, reproductive health care provider organizations. Violations of this statute carry a penalty of up to 20 years in prison.
Interference With Commerce by Threats or Violence, 18 U.S.C. § 1951
Section 1951, more commonly referred to as the "Hobbs Act," provides for penalties of up to 20 years for conduct that obstructs, delays or affects commerce by means of robbery or extortion. The statute also covers attempts to commit these acts, conspiracy to commit the acts, and any threats made to cause injury or damage to a person or property in order to commit these acts. Attempts to coerce a reproductive health care provider to limit or halt operations may constitute a violation of this statute.
Interstate or Foreign Travel or Transportation to Aid in Racketeering Enterprises, 18 U.S.C. § 1952
More commonly referred to as the "Travel Act," section 1952 sets a penalty of up to 5 years for persons who either travel in interstate or foreign commerce, or use the mails or other facility in interstate or foreign commerce, to commit any crime of violence in furtherance of some unlawful activity, or to promote, manage, establish, carry on or facilitate the promotion, management, establishment or carrying on of any unlawful activity. In sum, this statute makes it illegal to travel between states, or between another country and the U.S., in order to commit illegal acts. Traveling across state lines to perpetrate a crime of violence against a reproductive health care provider might warrant prosecution under § 1952.
In addition to the specific statutes outlined above, other federal statutes may apply to other instances of illegal criminal behavior directed at reproductive health care providers.
Concurrent Jurisdiction with State and Local Authorities
Many criminal activities that affect reproductive health care providers constitute crimes at the federal, state, and local level. Many jurisdictions have local ordinances for trespassing, disorderly conduct, and stalking, for example, that may overlap with coverage of that same conduct by a federal statute. Some states have adopted statutes almost identical to FACE, providing for concurrent jurisdiction in many cases.
Charging decisions involving offenses related to reproductive health care providers generally are made by the United States Attorney in cooperation with state and local authorities.
Civil Remedies
In addition to criminal penalties that may arise in relation to conduct affecting reproductive health care providers, federal law provides for civil remedies where private parties or the federal or state governments bring suit.
Civil actions under FACE may be brought by an aggrieved private party (such a health care provider), the United States Attorney General, or the Attorney General for any state. As a general matter, establishing a civil violation under FACE requires proof of the same elements outlined in the criminal discussion of the statute. The central difference is that in a civil case, the private or public plaintiff need not prove the case beyond a reasonable doubt but only by a preponderance of the evidence, a considerably weaker standard. In addition, the remedies available in the civil context differ. Civil remedies may include injunctive relief, civil penalties, actual or statutory damages, punitive damages, and attorney fees for actions which are not brought by a government.
The U.S. Department of Justice has secured a number of important decisions using the civil remedies of FACE to win permanent injunctive relief against persons who violated the Act in the context of blockades, "lock-and-blocks", threats, and other obstructive conduct. The government has secured judgments that bar specific defendants from entering the property of certain clinics, and the government has secured rulings requiring "buffer zones" around clinics in order to balance the interests of legitimate and protected protest and the rights of clinics to operate their legal businesses.
For more information regarding the civil aspects of the Freedom of Access to Clinic Entrances Act, visit the Special Litigation Home Page.
