By David Kurlander
On this week’s Now & Then episode, “Abortion: Whose Choice?” Heather Cox Richardson called Texas Senate Bill 8, which makes abortion illegal after a fetal heartbeat can be detected, “the biggest red flag in the red flag factory because it is an assault on all of our constitutional rights by individuals on the streets.” Heather was referring to a provision in the law that offers private individuals an incentive to sue abortion providers and anyone who aids and abets them for damages of at least $10,000. Last week, Attorney General Merrick Garland released a statement suggesting that a 1994 law, the Federal Access to Clinic Entrances (FACE) Act, could give the federal government the ability to counteract the harsher aspects of the law. The origins of the FACE Act tell a familiar story of vigilantism, government protections, and the long battle over reproductive decisions.
On March 10th, 1993, anti-abortion extremist Michael Griffin shot and killed Dr. David Gunn, a Pensacola, Florida-based OBGYN who performed abortions, outside of Gunn’s clinic. The killing came during a 30-person anti-abortion protest at the clinic by Rescue America, a group that Griffin had recently joined. “Don’t kill any more babies!” Griffin shouted before shooting Gunn three times in the back. An employee at a nearby office park told the Washington Post that the protestors did not strongly react to the killing: “It looked like they were just happy.”
Although Griffin was acting on his own, his ties to Rescue America, coupled with a massive rise in clinic arsons, acid attacks, and stalking of abortion-offering doctors and nurses in the year before Gunn’s killing, highlighted the growing severity of anti-abortion actions.
Even before Gunn’s murder, the federal government was struggling over how to take up the issue. In the January 1993 Supreme Court case Bray v. Alexandria Women’s Health Clinic, the Court ruled in a 6-3 decision that the Civil Rights Act of 1871, originally used to protect Black voters from the Ku Klux Klan, could not apply to protecting clinics from anti-abortion blockaders. In immediate response to the Court’s decision, in February 1993, Democratic New York Representative Chuck Schumer and Maryland Republican Representative Connie Morella sought a legislative solution, introducing a preliminary bill to protect abortion seekers and providers from harassment.
Morella, a liberal Republican in an increasingly polarized Congress, also supported gun control, marijuana legalization, and LGBTQ+ rights. She explained her position on clinic access: “I think this is congruent with the tenets of the Republican Party…It emphasizes the freedom of the individual.”
Schumer and Morella’s bill gained further traction following Gunn’s death. On April 1st, 1993, three weeks after the slaying, Schumer, serving as Chair of the House Judiciary Committee’s Subcommittee on Crime and Criminal Justice, organized a hearing entitled “Beyond Blockades.”
The Committee heard testimony of both pro-abortion witnesses, including David Gunn’s 22-year-old son, David Jr., and anti-abortion activists, led by Operation Rescue founder Randall Terry. Operation Rescue, which the flamboyant Terry started in 1986, had distributed “Wanted” posters of Gunn, which included his home phone number, during a rally in Montgomery, Alabama the previous year.
During the hearing’s opening statements, California Representative Don Edwards, who had served in the House since 1963, evoked the Civil Rights struggles of the 1960s: “I am one of the few members left who was here in Congress in the early sixties when we had a similar situation in certain States of the Old Confederacy…I have a real sense of déjà vu.”
The first witness was Gunn’s 22-year-old son, David Jr., an English major at the University of Alabama. “These anti-choice groups—I can’t refer to them anymore as pro-life—are employing terrorist tactics,” an admittedly nervous Gunn told the subcommittee. “Any person with a small amount of intelligence can read the papers and see there is something much more grandiose than one lone killer acting alone. That is a fallacy. There was a conspiracy.” During his testimony, Gunn held up a copy of Operation Rescue’s “abortion-busters” manual.
Another witness was Dr. Norman Tompkins, a Dallas-based OBGYN. Tompkins relayed how anti-abortion activists had surrounded his home, his church, and even his wife’s employer. Tompkins had been forced to hire bodyguards. He was seeking an injunction in Texas State Court, but he was not optimistic about the likelihood of state action. “I have become a prisoner in my own home because I believe a woman has the right to choose…unfortunately, the criminal laws of the State of Texas do not protect us.”
The Subcommittee also heard testimony from Jeri Rasmussen, the director of the Midwest Health Center for Women in Minneapolis, which offered abortion counseling. Rasmussen detailed being stalked at home, on freeways, and at restaurants by an anti-abortion St. Paul city firefighter. “I am no longer free to enjoy a nightly walk in the summer, to hear the frogs and crickets and see the fireflies on my path,” Rasmussen said.
When Randall Terry approached the microphone, he offered an unapologetic statement of purpose, arguing that Operation Rescue and similar groups were in a tradition of civil disobedience that went “from Susan B. Anthony to Rosa Parks, from Dr. King to the heavy coffin of the underground railroad.”
During questioning, Schumer and Terry engaged in a tense, almost prosecutorial back and forth. Terry further defended his treatment of abortion providers, arguing that his goal was to “expose them, humiliate them and disgrace them.” Schumer suggested that Terry’s tactics, including holding up incendiary signs in front of providers’ homes, crossed the line into intimidation and threats. “If someone stands in front of your neighborhood and goes back and forth and says, ‘Mr. Schumer’s hands are drenched in the blood of the innocent,’ that’s First Amendment speech, and if it annoys you that is the price of freedom,” Terry responded.
Following the contentious hearing, on May 12th, 1993, Attorney General Janet Reno testified before the Senate Labor and Human Resources Committee, offering her full support of legislation to protect clinic access and arguing that legislators could craft a bill that would “effectively ensure women access to abortion without suppressing the legitimate activities of those who oppose abortion.”
Over the next year, Schumer and Morella were joined by Senate colleagues led by Democrats Ted Kennedy and Barbara Boxer to hammer out a bill. The final product levied fines up to $100,000 and potential 3-year prison terms for anti-abortion activists who physically obstructed or damaged an abortion clinic.
The legislative sponsors of the Bill engaged in an extensive campaign for bipartisan votes and managed to secure a convincing 69-30 Senate vote on May 12th, 1994.
Two weeks later, President Clinton signed the FACE Act in a White House ceremony. David Gunn Jr. and his younger sister Wendy were in attendance. Clinton offered a plea for civility in his pre-signing remarks. Clinton argued that a peaceful consensus on abortion could not be reached if “people who think they have a right to take the law in their own hands, to misrepresent the positions of their opponents, and to wreak violence in this country and verbal extremism, and to distort the tenor of public debate have their day. It is time for us to turn away from that.” Clinton also echoed David Gunn Jr.’s statement that anti-abortion activists’ turn toward violence was in contradiction to their stated beliefs. “The people who gave rise to this act denied Dr. David Gunn the right to be a parent throughout his lifetime. That was not a pro-life position.”
After the signing, Gunn Jr. addressed the press, linking the blockades to the type of violence that killed his father. “What created the climate of the violence outside of the clinics was people ignoring for too long the protestors who had been sitting on the clinic’s front steps.” Schumer took the mic after Gunn, offering a parting riposte against Terry and hesitant legislators: “The opponents of this bill are putting up smokescreens. They are saying it will block peaceful protest. Bull.”
The FACE Act can now potentially make a difference in federal regulation of Texas’ new law, as the vigilante climate that triggered the Act rears its head. Now, 27 years after Don Edwards expressed his sense of “déjà vu,” the fragile lines between free speech, the rule of law, and women’s reproductive freedoms are once again at the center of American political life.
For more on the post-Roe history of abortion, read Mary Ziegler’s 2020 Abortion and the Law in America: Roe V. Wade to the Present.
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