The Department of Justice’s announcement this week that it secured convictions for six activists who blocked the entrance to a Tennessee abortion clinic has revived criticisms that the department under President Joe Biden is unfairly prosecuting those with right-leaning viewpoints.
The activists had crowded into a hallway of a carafem abortion clinic near Nashville in March 2021 and prayed and sang hymns while blocking the clinic’s entrance. Local police, after issuing several warnings, arrested some of them on the spot for trespassing misdemeanors.
A year and a half later, the FBI was knocking on their doors, and the activists were confronted with the Freedom of Access to Clinic Entrances Act and conspiracy against rights charges — the latter of which is a felony. They now each face up to 10.5 years in prison. Their sentencing is scheduled for July.
Conservatives decried the federal convictions this week. They characterized the prosecutions as overzealous when compared with the department’s approach to prosecuting those on the Left, such as supporters of abortion access and Black Lives Matter.
Attorney Roger Severino, who worked as a trial lawyer in the DOJ’s Civil Rights Division during the Obama administration, pointed out the disparity in the number of charges the DOJ has brought against those who support abortion access versus those who oppose it.
“We see it with the armed raids on pro-lifers by federal agents when they’re not a threat to anybody, and then you see on the other side, inaction in the face of true violence against churches and pregnancy resource centers,” Severino said.
Violence, destruction, and threatening behavior have occurred on both sides of the abortion debate, and the number of incidents has risen since the Supreme Court’s landmark decision to overturn Roe v. Wade in 2022.
While that uptick coincides with the DOJ, under President Joe Biden, bringing more FACE Act cases — the administration has brought at least 16 cases involving dozens of defendants — all but two of the cases were brought against anti-abortion activists, according to department data. During the Trump administration, five single-defendant cases were brought, the same data showed.
The FACE Act makes it a federal crime to physically obstruct, injure, or intimidate those who are giving or receiving “reproductive health services.” It covers relevant incidents at clinics, pregnancy resource and counseling centers, and churches. Many anti-abortion advocates have urged Congress to repeal the FACE Act, saying it is applied in a one-sided manner.
“The only purpose left for the FACE Act is to be used as a cudgel against pro-lifers to try to intimidate people,” Severino said.
Some, like Rep. Mark Green (R-TN), found the prosecutions of the Tennessee activists were far more heavy-handed than those that occurred beginning in 2020 against Black Lives Matter activists.
“A new low for the Biden DOJ,” Green wrote on social media. “Putting Christians in jail for peaceful protests outside an abortion clinic is persecution. Meanwhile, most BLM rioters got off scot-free.”
Black Lives Matter transformed from a relatively small social cause into a national movement after the killing of George Floyd by police in May 2020. Protests cropped up all over the country, and the demonstrations, at times, devolved into lawless episodes of vandalism, looting, and violence.
While law enforcement responses in those instances varied drastically at the state level depending on the jurisdiction, the Trump administration touted in September 2020 that its DOJ had interjected and arrested more than 300 people associated with protests since Floyd’s death. The charges included attempted murder, assaulting police officers, arson, property damage, and burglary.
However, some offenders were met with leniency, according to an Associated Press analysis.
In Portland, Oregon, where Black Lives Matter protests would for months routinely turn into destructive riots, the analysis found that a majority of the people arrested on federal charges there, 60 out of 100, eventually had their cases dismissed. The analysis captured data through August 2021, after the administration had changed.
“The double standard displayed by Biden’s Department of Justice shocks the conscience when we have protesters who are motivated to save babies’ lives facing up to 10 years in prison,” Severino said, contending that Black Lives Matter and Antifa activists have been met with less aggression.
Tom Fitton, founder of the right-wing watchdog Judicial Watch, reiterated his accusation that the DOJ stood idly by when protesters showed up at the homes of Republican-appointed Supreme Court justices after a leaked opinion signaled they would be voting to overturn Roe.
Justice Amy Coney Barrett saw regular protests outside her home. Protesters widely published justices’ addresses. A man was arrested near Justice Brett Kavanaugh’s home after threatening to assassinate him.
Attorney General Merrick Garland authorized U.S. marshals at the time to help with security outside the homes, but with the exception of the Kavanaugh incident, the DOJ did not make any arrests. Federal law prohibits “picketing and parading” outside judges’ homes, and the department came under intense scrutiny for declining to enforce that.
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Sen. Katie Britt (R-AL) pressed Garland at the time on materials she received from a whistleblower that indicated the marshals had received instructions to use arrests at the justices’ homes only as a last resort. Garland said he had never seen the memo.
“We are trying to protect the lives of justices. That is our principal priority. Decisions have to be made on the ground about what is the best way to protect those lives,” Garland said.
