The state-by-state fragmentation of abortion law has created obvious confusion about interstate enforcement of various restrictions and battles within states over new abortion limits. (See: South Carolina.)
At the same time, an interesting new fault line has emerged over enforcement of existing federal law in two states, Massachusetts and Pennsylvania. Antiabortion activists are trying to build a case that with Democrats in charge, the scales of justice are stacked against them.
At issue is the Freedom of Access to Clinic Entrances Act, known as the FACE Act. (And no, I don’t know why every law needs an acronym.)
Conservatives are accusing the Justice Department of wielding the 1994 law to make an example of a prominent antiabortion activist in Pennsylvania who allegedly pushed an abortion clinic escort to the ground nearly a year ago.
In Massachusetts, meanwhile, defenders of religious liberty are accusing Maura Healey, the attorney general and Democratic nominee for governor, of refusing to use the law to protect antiabortion crisis pregnancy centers after she issued a consumer advisory warning that they use deceptive advertising. Four Bay State pregnancy centers have been vandalized, some with references to the menacing message left at other centers by a group called “Jane’s Revenge: ”If abortions aren’t safe, neither are you.” Two centers have been picketed and the employees of one have been personally targeted and mocked online.
Conservatives have seized on the Pennsylvania case as an example of federal overreach. The wife of Mark Houck, president of the Catholic ministry The King’s Men, told the Catholic News Agency that he was arrested last week after a large SWAT team showed up on their lawn, guns drawn. His wife has said the arrest traumatized their seven children; his lawyer has said Houck intended to cooperate with authorities and there was no need for such a show of force. Doug Mastriano, Pennsylvania’s antiabortion Republican nominee for governor, issued a statement last weekend condemning the arrest as an abuse of power and “persecution by Joe Biden’s DOJ against ordinary Americans.”
The FBI called the family’s claims “inaccurate,” telling the Catholic News Agency and other media outlets Monday that “No SWAT Team or SWAT operators were involved.” Still, a dozen Republican senators demanded an explanation from the Justice Department and Houck’s arrest has become a cause célèbre on Fox News, ensuring this is a story we will continue to hear about.
Now, back to Massachusetts, where antiabortion crisis pregnancy centers recently formed a coalition to push back against political pressure. After the Supreme Court ruling in June, Healey, Massachusetts Senator Elizabeth Warren and others denounced the centers, saying they deceptively advertise abortion, which they don’t provide, in hopes of dissuading those with unwanted pregnancies from the procedure. In a recent letter to Healey, the new coalition suggested she is discriminating against the centers, which are largely faith-based, on religious grounds and asked her to lift her consumer advisory about them.
But Healey stood firm, defending the rationale behind the advisory and saying that any vandalism should be handled by local police.
“Please rest assured that we have no intention to take action against your clients or anyone else on the basis of their religious views or on the basis of wanted services they provide,” Healey wrote in a letter to the coalition. “We will, however, continue our efforts to ensure that residents of and visitors to Massachusetts can access comprehensive reproductive health care — including abortion care — without facing intimidation, coercion, or threats that interfere with their protected rights to this care.”
But that’s where the FACE Act comes in, and antiabortion activists note that it protects them, too. The act makes it a federal crime to use force with the intent to injure, intimidate, and interfere with anyone because that person is a provider of reproductive health care. It protects volunteer escorts who help patients into abortion clinics past protestors as well as staff at faith-based antiabortion pregnancy centers.
The federal law was enacted in the 1990s to manage growing abortion clinic protests and a spike in violence, including shootings of abortion doctors in Florida and Kansas. (As abortion rights advocates often note, they have been the ones targeted for violence and threats for decades.) A buffer zone law in Massachusetts was famously overturned by the Supreme Court in 2014 but was replaced with a more flexible version to pass constitutional muster.
The latest dustups over clinic protection show the legal and public relations strategies being employed by the right. They also raise a dangerous question for a post-truth age: Can people on opposite sides of the issue agree on what qualifies as a threat or interference? Is “intimidation” in the eye of the beholder?
In Pennsylvania, for instance, the disputed arrest stemmed from an allegation that Houck pushed a 72-year-old abortion clinic escort to the ground. Those defending him have not denied it but have said that the clinic escort was shouting obscenities near Houck’s child.
In Massachusetts, no personal violence has been reported, but a lawyer for the coalition cites “violence” against the centers in claiming that the state’s top law enforcement official is using selective enforcement.
“All of this violence has occurred after she authorized that consumer advisory and gave complete license to the criminals of that state to target every life-affirming reproductive health facility in Massachusetts,” Jeremy Dys, senior counsel for First Liberty Institute, told me.
“It’s as if she cannot even be bothered to do the minimal thing that is necessary to protect her citizens,” Dys said. “I think it’s very clear that she does not wish to mobilize the power of her office in defense of these life-affirming reproductive health facilities.”
Healey’s office declined further comment about the conflict, but we surely haven’t heard the last of it.
In other states
In New Hampshire, the only state in New England lacking protections for abortion rights post-Dobbs, the issue is stirring more trouble in the polls for Republicans. Last week, I wrote about how Democratic candidates are using abortion and “death panels” as wedge issues in the election.
On Thursday, my colleague James Pindell offered fresh evidence that the issue is resonating with swing state voters, as New Hampshire Senator Maggie Hassan, a Democrat, uses it in ads against abortion rights opponent Don Bolduc. Independent women favored Hassan over Bolduc by a whopping 65 percent to 19 percent in the latest poll by Suffolk University Political Research Center and the Boston Globe.
And abortion is emerging as an issue in the Rhode Island governor’s race, as my colleague Alexa Gagosz reported. In his first television ad of the general election, Governor Daniel J. McKee says Republican Ashley Kalus would “take us backward,” repeatedly shows her saying “I am pro-life,” and asserts she would limit abortion access. Kalus pushed back with an ad of her own saying abortion access won’t change in Rhode Island since the provisions of Roe v. Wade were codified in state law in 2019.
What I’m reading
When GQ’s The Roe Project this week posed the question, “What do men have to say about abortion?” I found myself with questions, too.
Had women been clamoring to hear the male perspective on their reproductive rights? Aren’t men likely to be shouted down as mansplainers right about now? Is Sopranos actor Michael Imperioli an authority on women’s issues after what his Christopher did to Adriana?
GQ went there, asking famous men to share their own abortion experiences and their points of view, in an attempt to mobilize more men in the movement.
One interesting submission came from Chase Strangio, an American Civil Liberties Union attorney and transgender activist.
“The more critical conversation that cis[gender] men in particular need to be having is that restricting access to abortion and reproductive freedom is part of how cis men have been able to hold and consolidate power,” Strangio wrote. “I want to see men naming that — all of the structural ways that they have benefited from how difficult it is for people who can become pregnant to control their reproductive freedom.”
What I’m watching
“Blonde,” because apparently I have to, after reading this provocative Glamour headline: Intentional or Not, Blonde Has an Anti-Abortion Message.
What I’m not watching anymore
Labor and delivery scenes brought to me by HBO’s “House of the Dragon.” Basta!
This piece first appeared in Beyond Roe, our free weekly newsletter chronicling the fight for abortion rights in the United States. If you’d like to receive it via e-mail every Friday, you can sign up here.