Abortion Protesters Thwarted in Aim to Avoid Clinic Access Case

Four anti-abortion protesters likely will face a criminal trial for conspiring to prevent patients from accessing a reproductive health-care clinic in Washington, D.C., by violently entering the facility and blockading its doors.

Judge Colleen Kollar-Kotelly on July 22 denied the protesters’ motion to dismiss their indictments on federal charges of conspiracy against rights and a felony violation of the Freedom of Access to Clinic Entrances Act. She rejected the defendants’ claim that they were selectively prosecuted in retaliation for the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, pointing out that the indictments were handed down in March 2022 and Dobbs was decided the following June.

The defendants’ argument that the FACE Act violates the First Amendment free speech clause was foreclosed by a 1996 federal appeals court decision to the contrary, Kollar-Kotelly said. Dobbs didn’t revive the argument because the justices exclusively addressed the 14th Amendment in that case, she said. The free speech clause wasn’t mentioned in any of the myriad opinions, Kollar-Kotelly added.

But one argument for dismissal of the charges is still pending—that Dobbs did away with any federal civil right to unimpeded access to abortion facilities. Dobbs precluded any federal regulation of conduct outside facilities that provide abortions, including the FACE Act, the defendants said. The government hasn’t responded to that argument yet.

Peter Cooper of Washington; Robert Dunn of Bay City, Mich.; Brennwald & Robertson LLP; the Orenberg Law Firm PC; Howard Walsh III of Chevy Chase, Md.; and John Kiyonaga of Alexandria, Va. represent the moving defendants. The US Attorney’s Office for the District of Columbia represents the government.

The case is United States v. Harlow, D.D.C., No. 22-cr-96, 7/22/23.