A growing number of federal prosecutions and convictions of pro-life activists is prompting a new legal debate that their attorneys hope will go to the Supreme Court. This week, six pro-life activists were convicted of federal crimes in Nashville for demonstrating outside a clinic in early 2021.
In the wake of Dobbs v. Jackson Women’s Health Organization, the Justice Department increased prosecution of pro-life protestors outside of abortion clinics. Those cases included both peaceful protestors and those who were obstructing clinic entrances, which is a violation of the federal Freedom of Access to Clinic Entrances (FACE) Act.
More than a dozen protestors have now been convicted of federal crimes in the last year, and face sentences of more than 10 years. Eight more face trial in Michigan in April. Those criminal prosecutions were rare before 2021, with one or two cases annually for the past decade.
The six activists convicted in Tennessee this week argued they demonstrated peacefully, saying they were singing hymns and praying in a medical pavilion hallway outside the clinic. A police officer testified at the trial that the protestors were peaceful, according to The Tennessean, but they refused to leave. They were convicted of “obstructing access to reproductive health services.”
Some activists’ stated goals are to physically block women from having abortions by obstructing entrances, while others hope that their peaceful presence outside a clinic would convince those seeking abortions to make a different choice.
The FACE Act doesn’t clearly distinguish between types of activism outside clinics: It covers those who attempt to injure, intimidate, or interfere with anyone at a place “providing reproductive health services.”
The protestors face longer prison sentences than in the past because prosecutors have added a civil rights conspiracy charge to the most recent batch of cases, which carries a maximum 10-year sentence.
“This ‘conspiracy to violate civil rights’ [charge]—it’s a new strategy the DOJ is using,” Calvin Zastrow, one of the pro-life protestors in Tennessee who is a Christian, told CT shortly after his conviction this week. He faces an 11-year sentence, but unlike defendants in other FACE cases, he and others in his case were not immediately taken into custody.
Zastrow has participated in many demonstrations at clinics over the years and said charges were usually “just trespassing or disturbing the peace or disorderly conduct.” He argues that abortion is the violent act: “We are the peacemakers.”
Former federal prosecutor Ed Mechmann, in a blog post on the pro-life protestors’ convictions, described the civil rights conspiracy charge as a “prosecutor’s best friend” because it allows prosecutors to charge a wide range of people—even those who may not have participated—with conspiracy.
“This creates a huge disadvantage for minimal participants,” he said. “You may have thought that you were agreeing to something peaceful, but you’re still legally responsible if one of your cohorts committed an act of violence.”
In August and September 2023, eight protestors were convicted of civil rights conspiracy and FACE violations for an incident at a DC abortion clinic in 2020. Some members of the group forcefully entered the clinic and blockaded it, and prosecutors said the forceful entry caused a nurse to stumble back and sprain her ankle. Their sentencing is in May, and they have been incarcerated since their convictions.
One of the eight convicted in DC, Jonathan Darnel, faces the same maximum sentence of 11 years, though he remained outside the clinic and livestreamed the incident.
“FACE was designed to break up pro-life civil disobedience,” said Darnel in a text message with CT soon before his incarceration. “And it succeeded in doing that.”
In June 2023, a Franciscan friar was sentenced to six months in prison for obstructing the entrance to an abortion clinic. Though he has protested at clinics in the past, this was his first FACE conviction.
Pro-life attorneys have criticized the Department of Justice for one-sided prosecution of FACE, when pregnancy centers in 24 states have been vandalized or set on fire. Perhaps in response, in 2023 the DOJ filed FACE Act and civil rights charges against four individuals in Florida for a 2022 attack on a pregnancy center.
Those pro-choice defendants, like the pro-life protestors, face more than 10 years in prison because of the civil rights conspiracy charges. The jury trial for that case is currently slated for March.
Attorneys for the pro-life defendants plan to appeal to higher federal courts but must do so after sentencing. They want to challenge the use of the civil rights conspiracy charge as well as the validity of FACE prosecutions post-Dobbs. National pro-life groups are watching these cases too, though clinic blockades are not a strategy they engage in.
“We will watch this through the appeals court and possibly to the Supreme Court,” Steven Aden, chief legal officer and general counsel at Americans United for Life, told CT. “Our legal team is considering filing a brief on their behalf.”
Aden thinks that federal courts might not have jurisdiction to enforce FACE after Dobbs.
“Federal criminal law constitutionally only exists to enforce federal interests,” he said. “Consequently, every federal prosecution has to have a federal hook—a constitutional right that’s been violated, such as the right to vote, or the violation of a federal statute. You have neither here. You have no federal constitutional right to abortion after Dobbs, and there is no federal statute that grants a woman a right to abortion.”
Mechmann, the former prosecutor, argued that for the convicted DC protestors’ case, at least, abortion is legal by statute in DC, a federal district.
“Access to a clinic is also guaranteed under federal law. So anyone who blockades an abortion clinic denies a person of a right ‘secured … by … the laws of the United States,’” he wrote. “The Supreme Court’s decision in Dobbs, which held that there is no right to abortion in the US Constitution, is entirely beside the point.”
In the DC protestors’ case, Judge Colleen Kollar-Kotelly issued a 10-page opinion that addressed the inclusion of the civil rights conspiracy charge, saying it protected federal rights established by the FACE Act. She said Dobbs did not have any impact on the case.
One protestor who pleaded guilty to participating in the DC clinic blockade was sentenced to 10 months in prison. Mechmann estimates that those without previous convictions will get sentences of less than a year to potentially two years. But many participating in these blockades have a previous record for these types of actions. The protestors believe it is nonviolent direct action akin to the civil rights movement.
These groups call these tactics “rescues,” which originated with Operation Rescue’s sit-ins at abortion clinics in the 1980s. Operation Rescue participants had to pledge nonviolence, but more extreme pro-life activists’ violence toward abortion providers, including the killing of an abortion provider in 1993, led to the passage of the FACE Act the following year.
“You can only hold a gun or a cross, and we’ve chosen to take up a cross,” an Operation Rescue staffer, Rev. Jim Pinto, said in 1993, condemning the violence against abortion providers.
Clinic blockades declined after passage of the FACE Act, and local buffer zone laws also prevent activists from congregating near clinic entrances. Most pro-life activists outside clinics now focus on praying instead of blocking women from entering, but the number of activists at abortion clinics has been growing during the last few years.
One currently in detention for the DC incident is Joan Bell, 74, who has been arrested at clinics many times over the years and is considered one of the originators of this type of “rescue” activism. Her son, Emiliano Bell, attended the federal trial of the Tennessee protestors this week.
“Even though she was in jail more than 200 times in her lifetime, I was a child and it didn’t really hit me,” he said. “This last conviction—when I heard she might get 10 to 11 [years]—it was really hard.”
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