When Frank Bird, a local abortion protester, crashed his van through the glass doors of a Planned Parenthood clinic in Houston last March, he was not exercising his First Amendment right to free speech. He was committing a reckless act of vandalism that could have injured or killed someone.
The constitutional question raised by Bird's case is not whether he should be punished for his crime; it's who should do the punishing. At stake is the distinction between national and state authority at the heart of our federalist system -- a line that has been blurred so much that America's leading jurists have trouble making it out.
Bird was originally charged with felony criminal mischief under state law, but that charge was dropped after the U.S. Attorney's Office invoked the Federal Access to Clinic Entrances (FACE) Act. The 1994 law makes it a federal crime to interfere with reproductive health services through physical obstruction, vandalism, threats, or violence.
Bird already has served a year in prison under this law because of a 1994 incident in which he threatened an abortion provider and threw a bottle at his car. But last month U.S. District Judge Kenneth Hoyt dismissed the new FACE Act charge against Bird, concluding that the Constitution does not empower Congress to establish federal penalties for crimes like his.
The Justice Department, to the discomfort of abortion opponents who oppose the FACE Act and count Attorney General John Ashcroft as an ally, plans to appeal Hoyt's ruling. It will argue that the law is a legitimate exercise of Congress's authority to "regulate Commerce . . . among the several States." If you're wondering what that has to do with driving a van into an abortion clinic, you're not alone.
According to the Senate version of the bill that became the FACE Act, Congress was responding to "an interstate campaign" aimed at disrupting "reproductive health services across the nation." Yet the law applies to purely local disruptions as well. As Hoyt observed, Frank Bird's crime hardly amounted to "a campaign of violence aimed at (abortion) providers across the nation."
The Senate also noted that abortion clinics buy equipment and supplies from other states, and that women prevented from getting abortions in one state might travel to clinics in other states. Lame as that justification might seem, it has been accepted by half a dozen federal appeals courts, including the 5th Circuit, which upheld Bird's first FACE Act conviction in 1997.
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