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May 4, 7:31 PM (ET)
By ROXANA HEGEMAN
WICHITA, Kan. (AP) – The Justice Department under President Barack Obama has taken a harder line against anti-abortion activists accused of trying to block access to clinics, suing at least a half-dozen of them under a federal law that lay mostly dormant during the Bush administration.
The law, written to protect people who seek or provide abortions, was revived after Obama took office and in the wake of the 2009 slaying of Kansas abortion provider George Tiller, who was shot to death moments before Sunday services were to begin at his Wichita church.
Since Obama’s inauguration, federal lawsuits have been filed against a woman who blocked a car from entering a clinic in West Palm Beach, Fla.; a Texas man who threw his body across the door of a patient waiting area in San Antonio; and a Pennsylvania man who posted on the Internet the names and addresses of abortion providers and extolled his readers to kill them.
Government records obtained by The Associated Press show that in slightly over two years, the Obama Justice Department has filed six lawsuits under the Freedom of Access to Clinic Entrances Act, mostly to seek injunctions and fines. That compares with just one such lawsuit during the entire eight years of George W. Bush.
Tiller’s slaying “brought home to many of us the terrible potential for violence and the need to use every legal means at our disposal to prevent it,” said Barry Grissom, U.S. attorney for Kansas.
President Bill Clinton signed the law in 1994 after a turbulent period that included massive sit-ins at clinics, clinic bombings and other anti-abortion activities that culminated with Tiller being wounded in a 1993 shooting. The Clinton Justice Department subsequently filed 17 civil lawsuits under the law during his remaining term.
Carl Tobias, a University of Richmond law professor who follows the federal judiciary, said Justice Department decisions usually mirror the president’s views. He was not surprised to see the government acting more aggressively.
“I think President Bush was pretty clear about his position on that type of issue,” Tobias said. “It is less clear what the present administration’s position is, but maybe it is partly reflected in their willingness to be more rigorous about enforcing it.”
Thomas Perez, assistant attorney general for the civil rights division, has said protecting abortion providers so they can do their jobs is of the “utmost importance.”
The Justice Department “will continue to aggressively enforce the FACE Act against those who seek to violate the rights of their fellow Americans to safely provide or obtain such services,” Perez said in announcing the Kansas lawsuit.
The figures do not include criminal prosecutions, which have been more consistent from one White House to the next during the early years of the Bush and Obama administrations.
The law was heavily used in the years immediately after it took effect. During President Bill Clinton’s two terms, 37 criminal prosecutions were filed, compared with 18 under Bush and six under Obama. Since the law was enacted, the Justice Department has filed criminal cases against a total of 89 defendants, convicting 86 of them.
In civil court, one of the latest cases is a Kansas lawsuit filed last month against an abortion opponent who allegedly sent a threatening letter to a doctor. The government sued Angel Dillard when she wrote that thousands of people across the nation where watching the doctor and suggested she check under her car daily for explosives.
Citing First Amendment protections, Judge J. Thomas Marten ruled that Dillard’s letter was not a “true threat” because she did not personally intend to harm the doctor. He refused to issue a preliminary injunction that would have kept her 250 feet away from the doctor, her clinic and her home.
The lawsuit is still pending while the judge awaits arguments on whether to dismiss the case entirely.
Grissom has said the Justice Department pursued a civil case against Dillard – rather than criminal charges – because the legal standard needed for a preliminary injunction is lower than “beyond a reasonable doubt,” which is required for a criminal conviction.
In the Pennsylvania Internet case, the government obtained a court order that prohibits the defendant from posting threats against the doctors. Most of the other recent civil cases remain to be resolved.
One was settled on Wednesday when a Washington man accused of entering a clinic in Lynwood, Wash., and intimidating the staff agreed to a court order barring him from coming within 25 feet of the clinic. John Kroach also agreed to pay a $5,000 fine, with $4,000 of that suspended if no other violations occur.
The sole civil lawsuit filed under the statute during the Bush years was a 2007 complaint against a separate Pennsylvania man who made similar threats on his website.
Hans von Spakovsky was counsel to the assistant attorney general in the Justice Department’s civil rights division from 2001 to 2005. He said the fact that the Bush administration filed lots of criminal cases under the clinic law is evidence that the agency was willing to prosecute when the situation deserved it.
Von Spakovsky, now manager of the Civil Rights Reform Initiative for the Heritage Foundation, a conservative think tank, said the Justice Department’s decision under Obama to bring numerous civil lawsuits raises two issues: It brings up First Amendment questions because some protests are protected speech. And it suggests authorities are pursuing civil action “because they know they don’t have the evidence” to file criminal charges.
Anti-abortion activists harbor the same doubts.
“You don’t just go around filing injunctions against people that you believe are proponents of violence,” Operation Rescue President Troy Newman said. “Domestic violence cases have proven that little injunctions don’t stop people from committing acts of violence. … They are pretty weak cases all around the country.”
Newman – who along with other defendants was sued in 1998 for blockading a Washington, D.C., clinic – said that if the Justice Department is serious about stopping abortion violence it should file criminal charges under more broadly written criminal statutes, rather than using an act that specifically targets abortion activists.
Kathy Spillar, executive vice president of the Feminist Majority Foundation, a women’s advocacy group that works to protect abortion rights, said the Justice Department needs to do more, given the heightened level of threats now against abortion providers since Obama’s 2008 election.
The lawsuits “send a very strong message that extremists are not going to be able to make threats, much less carry out threats, without consequences,” Spillar said. “The sooner and more diligent the response, then you don’t get a ratcheting up and ultimately a horrific act of violence.”
During the Bush years, Congress heard considerable testimony suggesting that the Justice Department – particularly its civil rights division – was highly politicized, Tobias recalled.
“I suppose other people would say that in fairness to the other side … that the Obama administration is just as politicized in its Justice Department as the Bush one was,” he said. “That is a fair criticism, I think. All the administrations have different priorities.”