As feds drop FACE Act cases in Philly and elsewhere, reproductive health providers worry about escalating violence

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On the morning of Aug. 27, 2021, Phebe Brandt’s shift at the Planned Parenthood Elizabeth Blackwell Health Center in Philadelphia started out pretty normal.

But that quickly changed when a man came in, gained access to one of the clinic areas and locked himself in a patient bathroom.

“We didn’t know if he had a bomb on him, we didn’t know what the story was,” Brandt said. “Our security guard tried to remove him, could not, so we called the police.”

Health center managers evacuated everyone from the building. Many patients that day were there for annual gynecologic exams, birth control and cancer screenings, providers said. Some were visiting the adjoining surgical center for abortion services.

They all stood outside on the sidewalk and anxiously watched as Philadelphia police and a SWAT team closed down the area around Locust and 11th streets in Center City.

“I was glad we got out, because we didn’t know. We didn’t know if he was going to blow the whole place up,” Brandt said. “It was pretty scary.”

The man locked in the bathroom was Minnesota resident and abortion protester Matthew Connolly. He didn’t have a bomb, but stayed barricaded for nearly three hours before police broke in and forcibly removed him from the clinic. He was carried out on a stretcher.

The health center had to shut down for the day, which resulted in at least 44 canceled patient appointments that needed to be rescheduled, according to court documents.

“Abortion, obviously, is more time sensitive,” Brandt said. “But even our patients who were in the sexual reproductive health office, they took a whole day off to come in that day and it was incredibly disruptive to them for them to not be able to complete their visits and have to come back.”

These are the kinds of incidents that have been prosecuted under the Freedom of Access to Clinic Entrances Act, or FACE Act. It’s a federal law that, in part, makes it illegal for someone to threaten, injure or block patients and providers at reproductive health clinics.

Last August, the U.S. Department of Justice under President Joe Biden’s administration filed a civil lawsuit against Connolly for violating the FACE Act. But his case — along with several others — were recently dismissed in late January after President Donald Trump’s DOJ instructed federal prosecutors across the country to drop these kinds of cases.

In a memo, DOJ leaders said FACE Act prosecutions would be allowed “only in extraordinary circumstances,” or instances involving serious bodily harm, serious property damage and death.

It’s a departure from how previous administrations have enforced the FACE Act since Congress passed the law in 1994. While the move garners applause from religious and pro-life groups, Brandt said she and her reproductive health colleagues fear this will lead to more disruption and violence at centers like hers.

“It basically says our emotional distress doesn’t matter, it says getting health care that day doesn’t matter, and that people can disrupt all they want as long as they’re not extremely violent,” she said.

Federal protections and enforcement changes

Congress passed the FACE Act in 1994, and it was signed into law by President Bill Clinton. In addition to reproductive health centers and crisis pregnancy centers, it also prohibits violence and threats, property damage, intimidation and blockading religious places of worship.

Susan Frietsche, legal director and executive director at the Women’s Law Project, said it came in response to nearly two decades of escalating protests aimed at reproductive health providers and clinics, particularly ones that performed abortions.

“It was completely unremarkable for massive protests to close down clinics, and as a result, people could not keep their appointments,” she said. “And that happened in Philadelphia, in Pittsburgh, in Delaware County, really all over Pennsylvania and all over the country.”

But the tipping point, Frietsche said, came in 1993 when an anti-abortion extremist murdered OB-GYN Dr. David Gunn in Florida, and another attempted to kill Dr. George Tiller in Kansas the same year. Tiller was later murdered by a different extremist in 2009.

Supporters of the FACE Act say the law balances freedom of speech with a person’s right to access health care. Multiple federal circuit courts have upheld the law and the U.S. Supreme Court has declined to hear challenges to the law.

Most recently, it turned away a case brought forth by abortion opponents in New Jersey and Illinois, who argued that the law violates the First Amendment.

“It doesn’t shut down protests,” Frietsche said. “It just prevents violence, intimidation and obstruction. So, your right to free speech ends where someone else’s right to obtain and provide reproductive health care begins.”

But organizations like the Thomas Moore Society disagree. The Catholic public interest law firm has been at the forefront of challenges to the FACE Act and has represented people like Connolly in court.

Society leaders argued that enforcement has been discriminatory, unfairly punitive and politically motivated, and that some cases have far overreached the original boundaries and intentions of the law.

Peter Breen, executive vice president and head of litigation at the Thomas Moore Society, testified before a House Judiciary subcommittee last week on how the justice department has been “weaponized” against abortion opponents and members of the pro-life movement.

“The Biden DOJ engaged in a systematic campaign to abuse the power of the federal government against pro-life advocates while that same DOJ ignored hundreds of acts of vandalism and violence against pro-life churches, pregnancy centers and advocates,” Breen said.

The society applauded the DOJ’s rollback of FACE Act prosecutions, including the now-dismissed case against Connelly in Pennsylvania. Leaders also thanked Trump for pardoning 23 people who had been convicted under the law over the years.

Several were serving prison time for breaking into or blocking access at reproductive health clinics.

“Those pardons send a powerful message to the country and especially to the millions of Americans in the pro-life movement that the federal government should not be weaponized against Americans because of their sincere beliefs in the sanctity of human life,” Breen said.

State actions in health care access

While the Thomas Moore Society and others are pushing for Congress to repeal the FACE Act, some local lawmakers in the commonwealth are working to adopt FACE Act protections into state law.

Pennsylvania Democrat Rep. Lindsay Powell, who represents parts of Allegheny County and Pittsburgh, said her team has been preparing for these types of challenges since November.

Powell introduced a bill in the Pennsylvania legislature just last month that would adopt many of the protections and penalties outlined in the federal FACE Act, and add new features to address some disruption tactics that providers are reporting on the ground.

“So prank calls,” Powell said, for example. “We know when we’ve seen talking to providers that there could be sometimes a deluge of calls a day, trying to jam up the phone so that people can’t call in and make the appointments and get the life-saving care that they need.”

The state legislation has been referred to the House Judiciary committee.

Legal experts also say that states and communities may consider adding “buffer zone” laws to add more protections at reproductive health sites. These laws typically require protesters to stay a certain number of feet away from a clinic’s entrance.

Pittsburgh and Harrisburg are among the few cities in Pennsylvania that have buffer zone ordinances in place. Philadelphia does not.

Reproductive health providers on the ground

Nurse practitioner Phebe Brandt said that for the most part, she’s comforted by the security measures they have in place at the Planned Parenthood Elizabeth Blackwell Health Center in Philadelphia.

She and her colleagues get training multiple times a year on how to prepare for intruder situations.

But as federal enforcement of the FACE Act weakens, Brandt feels that the safety for herself and others at the center could become compromised.

It’s happening at a time when abortion providers and centers nationally are experiencing a rise in arson attacks, burglaries and death threats, according to data from the National Abortion Federation.

Despite the risks that come with being a provider in this space, Brandt said she’s not going anywhere.

“It’s the only place I’ve ever wanted to work,” she said. “It’s just a very deep, heartfelt thing. It’s a calling.”