Attorneys representing an anti-abortion advocate convicted on federal charges of blocking access to a Washington, D.C., abortion clinic say they have strong grounds for an appeal challenging the constitutionality of the Freedom of Access to Clinic Entrances Act in the post-Roe era.
Prominent anti-abortion activist Lauren Handy and four co-defendants, who face up to 11 years in prison, were convicted last Tuesday for violating the FACE Act for protesting inside the Washington Surgi-Clinic in 2020.
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U.S. District Judge Colleen Kollar-Kotelly, appointed by President Bill Clinton in 1997, ruled unexpectedly last week to keep all five defendants in custody until sentencing under the provision that they did not engage in an "entirely nonviolent" protest because a clinic worker sustained an ankle injury during the altercation with the protesters.
Handy's counsel, Martin Cannon and Steve Crampton of the Thomas More Society, told the Washington Examiner that they filed an appeal on Tuesday against the judge's decision to keep their client incarcerated and are also planning on filing a long-term appeal arguing that there is no longer a federal role for protecting abortion.
Case and conviction
Handy, the director of activism for the group Progressive Anti-Abortion Uprising, was convicted as the lead organizer of a protest of born-alive abortions at the Washington, D.C., facility operated by Cesare Santangelo, whom the defendants argue was committing infanticide by refusing to fulfill his legal obligation to medically assist children born alive during failed abortions.
Santangelo was caught on video in 2012 by the anti-abortion group Live Action saying that he "would not help it" if a child was born alive during an abortion after 18 weeks gestation.
Cannon and Crampton told the Washington Examiner that Kollar-Kotelly would not let Handy's defense share this information with the jury. They contend that her refusal hindered their ability to fully convey the intent of their client, providing grounds for a procedural appeal.
Constitutional grounds for appeal
Cannon and Crampton said that their long-term appeal strategy, however, is to argue that the Dobbs v. Jackson Women's Health Organization decision makes protecting access to abortion clinics within state jurisdiction, rendering the federal FACE Act no longer necessary or constitutionally applicable.
"Since the Dobbs decision that reversed Roe, there's a very serious question about whether the federal government has any further interest in the abortion issue," Cannon told the Washington Examiner, "whether there's any federal interest at stake that has to be protected under federal law, as opposed to just having the states enforce their own laws about trespass and disorderly conduct or even state FACE-like statutes."
The FACE Act, originally sponsored by then-Rep. Chuck Schumer and then-Sen. Ted Kennedy, took effect in May 1994 and was drafted to specifically address the rise in anti-abortion protests outside of abortion clinics, culminating in the 1992 death of abortion provider David Gunn.
The Biden administration DOJ has recently pursued several high-profile FACE Act cases, such as that against Catholic anti-abortion advocate and congressional candidate Mark Houck.
The Department of Justice, however, states on its website that "the FACE Act is not about abortions," arguing that the statute is equally applicable to abortion facilities, crisis pregnancy centers, and other reproductive healthcare providers.
Crampton, though, said the FACE Act should be interpreted within the historical context of its creation.
"The court has kind of created a legal fiction that now the FACE Act doesn't protect abortion, it protects other reproductive health services," said Crampton. "[But] the actions of our clients here were motivated solely by the abortion end of things, not pap smears and other reproductive health services, and the FACE Act without abortion as its route really doesn't have any federal validity any longer."
Timeline of action
The primary concern of Crampton and Cannon is the release of Handy and her four co-defendants, for which the legal team has filed a brief of appeal.
The defense team contends that the clinic employee's ankle injury does not meet the "crime of violence" statute that Kollar-Kotelly used to justify holding the defendants in custody until sentencing. Violating the FACE ACT, said Crampton, is "not inherently a crime of violence," especially when Handy is a known advocate of nonviolence.
The full appeal on constitutional grounds, however, will be filed on Sept. 29. The government will have the opportunity to respond, after which Cannon and Crampton will file a rebuttal brief.
Crampton said the higher court will most likely review the constitutional appeal for the case in October.
Handy's condition
Crampton told the Washington Examiner that his client is doing "as well as can be expected behind bars" and is in good spirits.
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In a statement published by PAAU on Tuesday, Handy responded to criticism from within the anti-abortion movement that protesting to the point of incarceration is useless to the cause of saving unborn lives.
"This isn't a numbers game — this is about love. Loving the most useless, abandoned, and unwanted without fear of punishment," said Handy. "It’s not just 'sad' when an unborn person is murdered, it is acutely devastating. Someone needs to feel and mourn deeply. Someone needs to love to the point of supposed uselessness."