Determined the constitutionality of the Freedom of Access to Clinic Entrances Act (FACE) in light of the Supreme Court's decision in United States v. Morrison.
This case challenged the constitutionality of the Freedom of Access to Clinic Entrances Act, known as FACE. Legal Momentum was one of the architects of FACE, which has been tremendously effective in reducing the incidence of obstructive protests and violence outside facilities that provide reproductive health services, such as birth control and abortion. We have defended the constitutionality of FACE before federal courts across the country. While every circuit court to consider the issue has held FACE to be constitutional, most of those rulings were issued before the Supreme Court's decision in United States v. Morrison, which struck down the civil rights remedy provision of the Violence Against Women Act. The Morrison decision further restricted congressional power to prohibit conduct that occurs within a state, when the congressional prohibition is based on that conduct's interstate ramifications, and it therefore has troubling implications for FACE.
United States v. Bird arose in Texas, when Frank Bird, an anti-abortion protester, was criminally prosecuted for violating FACE by driving a van through the front door of a Houston Planned Parenthood facility. The protester challenged the constitutionality of FACE, arguing that the Morrison ruling had invalidated a previous Fifth Circuit ruling upholding the statute. The federal district court hearing the case agreed, and held FACE unconstitutional as beyond congressional power.
Legal Momentum submitted an amicus curiae brief to the Fifth Circuit Court of Appeals defending the constitutionality of FACE. Our brief, prepared with pro bono assistance from the law firm Paul, Weiss, Rifkind, Wharton & Garrison, addressed the Fifth Circuit's complex jurisprudence in this area of the law, and provided the court with solid facts about how the types of activities prohibited by FACE have an economic effect on the health care facilities they target. In the end, the Fifth Circuit reversed the district court in a two paragraph opinion, stating that U.S. v. Morrison did not alter the Circuit's previous ruling upholding the constitutionality of FACE. Bird's petition for rehearing by the full court was denied, and the constitutionality of this critical statute was once again affirmed.