Pro-Life Activists Challenge FACE Act, Say Law Is Unconstitutional

Pro-life and pro-abortion activists are prosecuted differently, attorneys say

Threatening graffiti is seen on the exterior of the offices of pro-life group Wisconsin Family Action in Madison, Wis., on May 8, 2022. (Alex Shur/Wisconsin State Journal via AP)

Calling the law unconstitutional, 11 pro-life activists are asking the court to dismiss charges of violations of the Freedom of Access to Clinic Entrances (FACE) Act that could put them in prison for up to 11 years.

The group believes the Department of Justice (DOJ) is singling out people with pro-life views for FACE prosecution, while virtually ignoring pro-abortion attacks on pregnancy resource centers and churches.

“The DOJ has demonstrated clear and illegal hostility toward the pro-life viewpoint in its statements and enforcement decisions, running roughshod over fundamental religious freedoms and free speech rights, and bringing an illegal selective prosecution here,” court papers say. “The FACE Act is being used as a tool for viewpoint discrimination.”

A motion to dismiss filed last week in U.S. District Court in the Middle District of Tennessee calls the FACE Act a content-based regulation of speech and a violation of the Religious Freedom Restoration Act and the free exercise clause of the Constitution.

“According to FBI Director Christopher Wray’s testimony before Congress, since the Supreme Court’s Dobbs decision, the DOJ has indicted only two pro-abortion activists out of at least 81 estimated attacks against pro-life groups, not including churches,” the complaint said. “All the while, the DOJ has engaged in a course of aggressively using FACE along with other federal statutes to prosecute peaceful acts of speech and alleged acts of nonviolent civil disobedience by persons advocating a pro-life and anti-abortion position, while simultaneously turning a blind eye to brazen and repeated violent attacks on churches and pregnancy resource centers committed by pro-abortion activists.”

 Pro-Abortion Attacks

A message written on the wall of a pro-life pregnancy resource center that was set on fire in Longmont, Colorado, on June 25, 2022. (Courtesy of Longmont Police Department)

Attacks on pregnancy resource centers, tracked on the website Catholicvote.org, show a pattern of graffiti, broken windows, attempted arson, staff cars being scratched, and glue placed in locks. Here is a small sampling of incidents reported.

• On March 3, 2023, a Minneapolis pregnancy center that provides free pregnancy and child services to families in need had its windows broken. Messages painted on the building said, “If abortions aren’t safe, neither are you.”
• On January 29, 2023, in Houston, Texas, vandals glued the locks shut and spray painted “Abortion for all!” at a pregnancy center.
• In December 2022 in Detroit, vandals painted the words “Liars,” “Fake Clinic,” and “Jane’s Revenge” in red on a pregnancy center building.
• In October 2022 in Wasilla, Alaska, a church and pregnancy resource center were both vandalized, with a substance strayed into the locks and security cameras and the words “Not a clinic” painted on the building.
• In August 2022 in Pocatello, Idaho, a pregnancy center had five windows painted with “forced birth center,” “God is a woman,” and “beware.”
• In July 2022 in Moab, Utah, black paint was splashed on the building and windows of a pregnancy center, and the center’s sign was destroyed.
• In July 2022 in Northfield, Minnesota, a window was smashed at a pregnancy center and the message “Fake Clinic Not Safe” was painted on the building.
• In July 2022 in Akron, Ohio, a rock smashed the window of a pregnancy center. Foul messages were painted on the building.
• In June 2022 in Nashville, Tennessee, there was an attempted arson at a pro-life pregnancy resource center. Police found a broken window with a Molotov cocktail inside and spray painting on the building that said, “Jane’s Revenge.”
• In June 2022 in Everett, Washington, broken windows and a Molotov cocktail were found at a pregnancy center.
• In June 2022 in Littleton, New Hampshire, a pregnancy care center was spray-painted with the message, “Fund abortion; abort God.”
• In May 2022 in Denton, Texas, two pregnancy resource centers were vandalized with large messages spray-painted on the building and door, stating “Forced birth is murder” and “Not a clinic.”

Praying in Hallway

The 11 individuals charged with FACE violations by the FBI were charged for a March 2021 demonstration at an abortion facility in Mount Juliet, Tennessee.

It was located inside a larger medical building that had other, unrelated medical offices. Some of those charged stood in the hallway near the door, while others stood down the hall, closer to an elevator. They sang Christian songs, prayed, and spoke briefly to a couple seeking to enter the abortion facility, which is shown in a video captured by one of the group members. The couple walked toward the door. They walked toward the people in the hallway. Someone told them, “that baby is a blessing from God.” Then the couple got back on the elevator and left.

That would not happen today because the abortion facility has since closed due to a change in Tennessee law that now bans abortion after a baby’s heartbeat is detected.

Still, 19 months after the demonstration, the 11 individuals were visited by the FBI in their homes or businesses and charged with FACE Act violations. Some were additionally charged with conspiracy to commit FACE violations for talking about the demonstration on Facebook.

The charged are Denny Green, 56, of Cumberland, Virginia; Chester Gallagher, 73, of Lebanon, Tennessee; Heather Idoni, 58, of Michigan; Calvin Zastrow, 57, of Michigan; Caroline Davis, 24, of Michigan; Coleman Boyd, 51, of Bolton, Mississippi; Paul Vaughn, 55, of Centerville, Tennessee; Eva Edl, 87, of Aiken, South Carolina; Eva Zastro, 24, of Dover, Arkansas; James Zastro, 25, of Eldon, Missouri; and Paul Place, 24, of Centerville, Tennessee.

They each have different attorneys.

“While the conduct of which Defendants are accused may have caused slight discomfort or annoyed [the couple in the hallway] and clinic employees, it was not physical nor did it involve threats or violence of any kind,” court papers say.

Prosecuting Attacks on Pregnancy Resource Centers

The FACE Act prohibits interference with obtaining or providing “reproductive health services,” which includes abortion clinics and pro-life pregnancy resource facilities.

“Despite the numerous and ongoing incidents of violent actions against pregnancy resource centers ... virtually no prosecutions have been commenced; and, upon information and belief, almost no serious investigation has been undertaken, even though the fire bombings and vandalism of pregnancy resource centers are prohibited by the very same law under which defendants are being prosecuted. After so long a time and mounting criticism, the DOJ finally indicted two individuals under FACE for attacking pregnancy resource centers only weeks ago.”

This statement was a reference to a case the DOJ announced on Jan. 24 with charges of FACE offenses targeting three Florida pregnancy resource centers.

Caleb Freestone, 27, and Amber Smith-Stewart, 23, engaged in a conspiracy to prevent employees of reproductive health services facilities from providing those services, the DOJ said in a statement. It alleges the two, along with other co-conspirators, wore disguises such as masks, hats, and gloves, and spray painted threats, including “If abortions aren’t safe than niether [sic] are you,” “YOUR TIME IS UP!!,” “WE’RE COMING for U,” and “We are everywhere,” on a pregnancy resource center in Winter Haven, Florida.

The DOJ said facilities in Hollywood, Florida, and Hialeah, Florida, were also targeted. The facilities offer free pregnancy testing, counseling, and ultrasounds to see the baby.

If convicted of the offenses, Freestone and Smith-Stewart each face up to a maximum of 12 years in prison, three years of supervised release, and fines of up to $350,000.

Abortion Advocates Work in Secret

U.S. Attorney General Merrick Garland testifies before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill on March 1, 2023 in Washington. (Chip Somodevilla/Getty Images)

During a March 1 Senate Judiciary Committee hearing, U.S. Attorney General Merrick Garland acknowledged that the Biden administration’s DOJ has most often charged pro-life people with crimes, while pro-abortion people have seen little prosecution.

Pro-life folks are just easier to find, he explained.

After the leak of the Dobbs decision, when rioters descended on the homes of six Supreme Court justices, the DOJ did nothing, Sen. Ted Cruz (R-Texas) told Garland during the hearing. Pro-abortion activists posted the addresses of the justices’ homes, where they worship, and where their kids attend school.

“Your failure to act to protect the safety of the justices and their families was an obvious product of political bias. You agree with Roe vs. Wade, you disagree with the Dobbs decision. And the Department of Justice under this president was perfectly happy to refuse to enforce the law and allow threats of violence,” Cruz said. “We’ve seen across the country, violent attacks against crisis pregnancy centers by similar left wing terrorist groups, including one graffiti on a firebombed building that said, ‘Jane was here.’ There have been attacks all over the country. And yet the Department of Justice has not brought these violent criminals to justice,” Cruz said.

He compared that to the arrest of abortion sidewalk counselor Mark Houck, who allegedly shoved an abortion facility escort while they were on a sidewalk in front of a Philadelphia facility after the escort allegedly harassed Houck’s minor son. About a year later, the FBI sent agents to Houck’s home outfitted with long guns, body armor, and shields to arrest him for a FACE violation.

A jury acquitted Houck in February.

“Why do you send two dozen agents in body armor to arrest a sidewalk counselor who happens to be pro-life, but you don’t devote resources to prosecute people who are violently firebombing crisis pregnancy centers?” Cruz asked.

Garland assured Cruz that finding the people who participated in firebombing pro-life facilities is a DOJ priority.

“They are doing it at night and in secret,” Garland said. “We have found one [pro-abortion] group, which we did prosecute.”

The Epoch Times requested comment from the DOJ.

Stephen M. Crampton, senior counsel at the Thomas More Society, represents Paul Vaughn, one of the 11 people being prosecuted for the demonstration in Tennessee.

Crampton compared the DOJ’s zeal in finding Jan. 6 defendants to the department’s lack of interest in finding those committing crimes against pro-life organizations. For Jan. 6, the DOJ has been “combing through every piece of intercepted text message and phone location data they can put their fingers on. They’ve left no stone unturned in their quest to take down anybody that opposed the Biden election,” Crampton said.

“You’re never going to find what you’re not looking for,“ he said. ”They’re not looking for these [pro-abortion] people.”