March 4, 2024

DOJ Uses KKK-Era Charge to Extend Prison Time for Pro-Life Activists

Pro-life activists who prayed and sang hymns throughout a peaceable protest at a Tennessee abortion clinic in 2021 may spend 11 years behind bars thanks to the Department of Justice’s (DOJ) use of a federal legislation created to goal Ku Klux Klan members after the Civil War.

Not solely have been these six activists charged with violating the Freedom of Access to Clinic Entrances (FACE) Act — a misdemeanor cost that carries with it fines and a most jail sentence of 1 yr for a primary offense — they have been additionally charged with “conspiracy against rights,” colloquially referred to because the “KKK Act.” Conspiracy towards rights carries a ten-year most sentence, closely bolstering potential jail time.   

“The KKK Act automatically turns any violation of an underlying law — or if you conspired to violate a federal law — it converts it to a felony,” Thomas More Society Executive Vice President and basic counsel Andrew Bath instructed Breitbart News in an intensive telephone interview. “So now you’re facing a felony prosecution, even if your conviction under the FACE Act would’ve been a misdemeanor.”

The conspiracy towards rights statute was handed in 1870 after the Civil War, when “members of the Ku Klux Klan … terrorized black citizens for exercising their right to vote, running for public office, and serving on juries,” according to the U.S. Senate’s web site. In response, Congress handed a sequence of statutes “to end such violence and empower the president to use military force to protect African Americans.”

Conspiracy towards rights particularly “makes it unlawful for two or more persons to agree to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States or because of his or her having exercised such a right,” according to the DOJ.

“Now they’ve brought [conspiracy against rights] back to use against pro-lifers,” Advancing American Freedom (AAF) coverage adviser Jonah Wendt instructed Breitbart News.

President Joe Biden’s DOJ has repeatedly vowed to dial up FACE Act prosecutions within the lead up to, and after the Supreme Court issued, its Dobbs ruling, which overturned its 1973 Roe v. Wade determination inventing a constitutional “right” to abortion. The FACE Act was signed into legislation in 1994 by then-President Bill Clinton and outlaws “violent, threatening, damaging, and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain, or provide reproductive health services.”

The act was written to equally shield abortion clinics, pro-life being pregnant useful resource facilities, and church buildings. However, the DOJ and FBI have faced criticism, particularly previously two years, for showing to unequally apply the statute to go after pro-life activists — although being pregnant useful resource facilities and church buildings experienced greater than 100 assaults, together with vandalisms and fire-bombings, within the wake of the Dobbs leaokay

“Prior to [Assistant Attorney General for Civil Rights] Kristen Clarke, FACE Act charges were never paired with conspiracy against rights. Since she took over, it’s now standard that if you get charged with the FACE Act, they slap on conspiracy against rights to increase the years from 1 to 11,” Wendt stated.

“This is a new trend,” Bath additionally famous.

Bath pointed to a March of 2022 DOJ report — issued after the Supreme Court heard oral arguments within the Dobbs case — through which lawyer Sanjay Patel beneficial the DOJ pair conspiracy towards rights with the FACE Act to improve jail time for pro-life supporters.

“FACE Act violations are often planned and coordinated offenses that involve more than one subject. In those situations, the investigations may reveal evidence that support conspiracy charges in addition to the underlying offense,” Patel wrote within the article, titled “FACE Off with Anti-Abortion Extremism—Criminal Enforcement of 18 U.S.C. § 248 (FACE Act).”

“Although criminal conspiracy offenses are usually charged under 18 U.S.C. § 371, a conspiracy to commit a FACE Act offense should be charged under 18 U.S.C. § 241— conspiracy against rights,” he continued.

Patel particularly wrote that there are “three advantages” to charging activists with conspiracy towards rights as well as to a FACE Act violation, “when the evidence supports it.”

People attend the annual March for Life rally on the National Mall on January 19, 2024, in Washington, DC. (Kent Nishimura/Getty)

“First, unlike a section 371 conspiracy, a [conspiracy against rights] conviction is always a felony, even when the underlying substantive violation would be a misdemeanor,” he wrote. “Second, [conspiracy against rights] violations are punishable by up to 10 years’ imprisonment; or up to life or the death penalty, if certain aggravators apply. And third, under [conspiracy against rights], the government is not required to prove an overt act or substantial step in furtherance of the agreement.”

The report made no word of threats of violence towards church buildings or pro-life being pregnant useful resource facilities and as an alternative centered on a sequence of shootings and violent assaults on abortion clinics and abortionists between the Seventies and Nineteen Nineties as examples proving the necessity to dial up FACE Act prosecutions.

The report additionally included an introduction written by Kristen Clarke, through which she emphasised that enforcement of the FACE Act is “particularly important now given certain anti-Roe legal and advocacy efforts underway in parts of the country.”

“From policy perspective, the reason you would [pair conspiracy against rights and the FACE Act] is to make sure that the law has the chilling effect of convincing pro-lifers to not sidewalk counsel,” Wendt assessed. “When you are threatened with jail time, it has a punitive, deterrent effect.”

DOJ Trying to “Send a Message”

Bath stated the DOJ has elevated its depth to “send a message to people because as a pro-life activists have refined their techniques, they become more and more effective at saving babies.”

Thomas More Society has notably represented a number of pro-life activists who’ve been charged with each conspiracy towards rights and violating the FACE Act, including the newest case in Tennessee in addition to the high-profile instances involving leftist pro-lifer Lauren Handy and Catholic father of seven Mark Houck, who was discovered not responsible.

RELATED: D.C. Examiner Halts Planned Disposal of Late-Term Aborted Babies After Pressure Campaign

“[The DOJ is] not only charging people like this, but they are federalizing these crimes, which should be local offenses if they are, in fact, offenses,” Bath stated.

“They combine [the charges] with the very unnecessary early morning swat-style arrests, and what they’re trying to do is terrify pro-life activists and get them away from the sidewalks,” he stated, referring to each Houck and father of 11 Paul Vaughn, who have been arrested by armed FBI brokers in entrance of their households.

Specifically after the arrest and acquittal of Mark Houck, Republican lawmakers have been outraged and commenced pressuring the DOJ for solutions. United States Attorney General Merrick Garland subsequently admitted in March of 2023 that the DOJ has prosecuted extra pro-life activists than pro-abortion activists following the Supreme Court’s Dobbs determination however blamed the timing of alleged crimes for the discrepancy.

“I will say, you are quite right: there are many more prosecutions with respect to blocking of the abortion centers. But that is generally because those actions are taken with photography at the time, during the daylight, and seeing the person who did it is quite easy,” Garland told Sen. Mike Lee (R-UT) throughout a Senate Judiciary Committee listening to. He went on:

Those who’re attacking the being pregnant useful resource facilities, which is a horrid factor to do, are doing this at night time, at midnight. We have put full assets on this. We have put rewards out for this. The Justice Department and the FBI have made outreach to Catholic and different organizations to ask for their assist in figuring out the people who find themselves doing this.

Breitbart News reached out the DOJ, asking about its pairing of conspiracy towards rights and the FACE Act in latest prosecutions. Breitbart News additionally requested the company to checklist precisely what number of pro-life activists have been charged this fashion in contrast to pro-abortion activists and to reply to accusations it’s implementing the legislation unequally to goal pro-life activists. Breitbart News additional requested the DOJ why its 2022 report advising using conspiracy towards rights in FACE Act prosecutions makes no point out of violence towards being pregnant facilities or church buildings.

The DOJ responded however didn’t reply the questions requested. Instead, the company referred Breitbart News to prices filed towards pro-abortion activists in Florida and Ohio — which Breitbart News has coated (see here and here) — and pointed to Kristen Clarke’s December testimony through which she said, “The FACE Act is a law that this body [Congress] passed in response to efforts to obstruct access to reproductive health clinics, threats of violence, acts of violence. We follow the facts and apply the law without fear or favor.”

The DOJ additionally referred to the FBI’s announcement in January of 2023 providing $25,000 for details about assaults on reproductive well being service services. (Breitbart News additionally coated this story, see here.)

Fighting the FACE Act

Overall, Andrew Bath and the Thomas More Society are arguing that the FACE Act is now not constitutional for the reason that Supreme Court overturned the federal “right” to abortion with its Dobbs determination.

“Under our constitutional system of separation of powers, those powers known as the police powers are generally left to the states. There is no sweeping grant of police powers to the federal government under the Constitution,” Bath stated.

“Congress believed it had the power to legislate in this area under the Fourteenth Amendment and the Commerce Clause,” he continued. “[Congress] said that because Roe v. Wade granted a right to abortion … found in the Fourteenth Amendment.”

“Well, [Dobbs] overturned Roe v. Wade. So that justification for passing the FACE Act is gone,” he added. “Now, it’s hanging by the narrow thread of the Commerce Clause. The FACE Act was passed in 1994, and the Supreme Court has developed its Commerce Clause jurisprudence quite a bit since 1994.”

WASHINGTON, DC - JUNE 24: Anti-abortion activists celebrate in response to the Dobbs v Jackson Women's Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. The Court's decision in Dobbs v Jackson Women's Health overturns the landmark 50-year-old Roe v Wade case and erases a federal right to an abortion. (Photo by Brandon Bell/Getty Images)

Anti-abortion activists have a good time in response to the Dobbs v Jackson Women’s Health Organization ruling in entrance of the U.S. Supreme Court on June 24, 2022, in Washington, DC. (Brandon Bell/Getty Images)

Breitbart News senior authorized contributor Ken Klukowski famous that the Commerce Clause “gives Congress power to regulate interstate commerce.”

“But there have been three major cases since 1994 that have narrowed the scope of that broad authority, leaving the FACE Act subject to a serious challenge on that front,” Klukowski defined.

Bath instructed Breitbart News that the last word aim is to put the FACE Act earlier than the Supreme Court to let justices have the ultimate say. Thomas More Society introduced shortly after the responsible verdict for Tennessee activist Paul Vaughn on January 30 that attorneys are planning to enchantment his case to the U.S. Court of Appeals for the Sixth Circuit.

“So, we have some convictions here. We are going to use the appeal as our opportunity to have the FACE Act declared unconstitutional,” Bath stated. “We briefed that already in this case, and we’re going to take that to the Supreme Court.”

Republican lawmakers, for their half, renewed calls to repeal the FACE Act after the conviction of activists concerned within the Tennessee abortion clinic protest.

Rep. Chip Roy (R-TX) introduced the FACE Act Repeal Act in September of 2023 after eight different pro-life activists, who’re nonetheless in jail, have been found responsible of violating the FACE Act and conspiracy towards rights for their function in an abortion clinic blockade that passed off in Washington, DC, in October 2020. They may additionally face up to 11 years in jail.

“Free Americans should never live in fear of their government targeting them because of their beliefs. Yet, Biden’s Department of Justice has brazenly weaponized the FACE Act against normal, everyday Americans across the political spectrum, simply because they are pro-life,” Roy said in an announcement on the time. “Our Constitution separates power between the federal government and the states for a reason, and we ignore that safeguard at our own peril. The FACE Act is an unconstitutional federal takeover of state police powers; it must be repealed.”

Sen. Mike Lee (R-UT) is main companion laws within the Senate.

“The Constitution reserves general police power to the states, which Congress infringed upon when it passed the FACE Act,” Lee stated in September. “Joe Biden’s DOJ has weaponized this constitutionally dubious law against pro-life sidewalk counselors while failing to protect pregnancy centers and churches from arson, vandalism, and violence. It’s time to repeal the FACE Act once and for all.”

“The FACE Act, it seems, is being used by DOJ to punish pro-life protesters but not their pro-abortion counterparts,” Lee stated in a publish to X on January 30.

“In enacting the FACE Act, moreover, Congress relied on now difficult-to-defend readings of both the Commerce Clause and the Fourteen Amendment. I suspect most of the Republicans who voted for the FACE Act in 1994 would’ve voted differently had they anticipated the one-sided manner in which it would be enforced by DOJ,” he added.

If reelected, former President Donald Trump has additionally pledged to create a job drive to evaluation and probably pardon or commute the sentences of each “political prisoner who’s been unjustly persecuted by the Biden administration.”

Katherine Hamilton is a political reporter for Breitbart News. You can comply with her on X @thekat_hamilton.