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By Elizabeth C. Nye<\/a>, Staff Member (Vol. 14)<\/p>\n When people think about the abortion debate, they think Roe v. Wade<\/em><\/a>. However, the Supreme Court\u2019s decision in Roe<\/em> was only the beginning of legislation and controversy surrounding abortion rights. The Freedom of Access to Clinic Entrances (FACE) Act<\/a>, signed into law by President Clinton in 1994, has sparked years of debate and discussion surrounding the First Amendment right to peaceably assemble<\/a> and protest at\u2014or near\u2014abortion clinics. Namely, some argue that the language of the FACE Act is vague, ambiguous, and infringes upon First Amendment rights. The FACE Act\u2019s failure to define the scope of certain concepts such as \u201cthreat,\u201d \u201cintimidation,\u201d and \u201charassment\u201d makes it difficult to determine what form of language or conduct falls within the right to peaceably assemble.\u00a0 Through examining the current law, remaining ambiguities within that law, as well as pending legislation, this blog post argues that clarity issues stemming from the FACE Act still exist today. These ambiguities should be resolved by crystallizing the language used in legislation surrounding protests at or near abortion clinics, and by specifying what constitutes \u201cpeaceful assembly\u201d under the First Amendment.<\/p>\n The FACE Act: An Overview<\/u><\/em><\/p>\n The FACE Act<\/a> makes it a federal crime for anyone \u201cby force or threat of force or by physical obstruction, [to] intentionally injure[ ], intimidate[ ] or interfere[ ] with or attempt[ ] to injure\u201d a person who is obtaining or providing reproductive health services. In some instances, violations of the FACE Act are relatively clear-cut. For example, the Department of Justice filed suit against Richard Retta<\/a> after he \u201cblock[ed] a patient [from entering a Planned Parenthood clinic]\u2026following her for 35 feet and standing in front of the door.\u201d Another individual, David Hamilton, was found to have violated the FACE Act<\/a> when he used physical force against a volunteer at the EMW Women\u2019s Surgical Center in Louisville, KY.<\/p>\n FACE Act Ambiguities<\/u><\/em><\/p>\n In other circumstances, however, violations of the FACE Act are much more difficult to determine. For instance, how strictly or broadly do we define the terms \u201cthreat,\u201d \u201cintimidation,\u201d or \u201charassment?\u201d Does the fact that a protesting crowd might angrily chant their views outside of a clinic, but fail to physically harm someone who enters the clinic, mean that such entrants are not being \u201cthreatened\u201d or \u201cintimidated?\u201d<\/p>\n Defining \u201charassment\u201d under the Act has been difficult. For example, in McCullen v. Coakley<\/a>, the court pointed out that a New York ordinance making it a crime \u201cto follow and harass another person within 15 feet of the premises of a reproductive health care facility\u201d may not pass constitutional muster if a number of factors, including vagueness, fail to be sorted out. Despite the FACE Act being passed two decades prior to this case, it is clear from McCullen that definitional ambiguities still exist. Defining the term \u201cforce\u201d under the Act has also proven to be difficult. For example, does legislation that prevents women from accessing reproductive health services act as de facto \u201cforced interference?\u201d If this is indeed the case, then many jurisdictions across the United States could be seen as violating the FACE Act.<\/p>\n New Legislation<\/u><\/em><\/p>\n If we, indeed, accept the premise that legislation preventing women from obtaining abortions constitutes its own form of forceful interference, then recent legislation within Congress appears to be at odds with the supposed principles set out by the FACE Act. However, if we also accept the idea that the FACE Act is indeed somewhat vague, then could the proposed legislation be seen as merely \u201cgap-filling,\u201d as opposed to being fundamentally at odds with the Act? One such example of new legislation occurred in May 2015, when the U.S. House of Representatives passed a bill banning abortions after 20 weeks<\/a> by a vote of 242-184. Originally, the legislation required that women seeking abortion services as a result of sexual assault \u201cfile a police report to back up any claim of rape.\u201d In the revised bill, this requirement was removed<\/a>. However, a new provision was added requiring rape victims to receive medical attention and counseling at least 48 hours prior to obtaining abortion services<\/a>. There has been a great amount of debate surrounding the passage of this bill. Namely, many Democrats called the bill \u201c\u2018extreme\u2019 and accused Republicans<\/a> of \u2018taking up the measure for political reasons, pointing out the late term abortion ban is popular among religious conservatives.\u2019\u201d In the near future, it will be interesting to see how such legislation conflicts with, or clarifies, the language set out by the FACE Act with regard to forceful interference.<\/p>\n Remaining First Amendment Issues<\/u><\/em><\/p>\n Despite the plethora of legislation (including pending legislation) and case law, the debate over the First Amendment right to assemble and protest against abortion\u2014and indeed the right to an abortion more generally\u2014remains strongly contested. The FACE Act arguably creates more ambiguities than it solves, and the presence of impending abortion legislation in multiple states suggests that a clear answer is not forthcoming. For example, how much freedom to assemble and protest is being afforded? Should such freedom differ based on location or setting? Should assembled protestors outside abortion clinics be subject to a different interpretation of First Amendment rights than protestors in another setting?<\/p>\n All in all, the non-specificity of the language in the FACE Act, combined with the broad scope of the First Amendment, makes it difficult to interpret whether or not the FACE Act properly falls within the First Amendment\u2019s right to peaceably assemble. Future legislation should avoid these ambiguities regarding freedom to assemble and protest by ensuring that the language is written with a great degree of specificity and carefully defines terms like \u201cthreat,\u201d \u201cintimidation,\u201d \u201charassment,\u201d and \u201cforce.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" By Elizabeth C. Nye, Staff Member (Vol. 14) When people think about the abortion debate, they think Roe v. Wade. However, the Supreme Court\u2019s decision in Roe was only the beginning of legislation and controversy surrounding abortion rights. The Freedom of Access to Clinic Entrances (FACE) Act, signed into law by President Clinton in 1994, …<\/a><\/p>\n","protected":false},"author":10,"featured_media":88,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[16,85,149],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/4"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=4"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/4\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/88"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=4"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=4"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=4"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}