Bush Supports FACE Act

Bush's Prosecutor Asks Appeals Court
to Uphold Unconstitutional FACE Act

Appeals court asked to uphold abortion clinic protections

By Brett Martel / The Associated Press

(Under the Bush Administration) -- NEW ORLEANS -- Assistant U.S. Attorney General Peter Keisler, argued Tuesday before a panel of appeals court judges that "federal authorities have the right to protect local abortion clinics" from violence, because local assaults can affect clinics nationwide.

Prosecutors are trying to overturn a lower federal court ruling in Houston that deemed the Freedom of Access to Clinic Entrances Act unconstitutional.

The ruling stemmed from a case against anti-abortion activist Frank Lafayette Bird, who was accused of ramming a van into a Planned Parenthood clinic near downtown Houston.

U.S. District Judge Kenneth Hoyt ruled that Congress had no right to pass such sweeping protections for abortion clinics because federal authority is limited to interstate commerce. Hoyt ruled that Boyd's attack on a clinic near where he lived was a local matter.

Bird's appointed federal public defender, Brent Newton of Houston, told a three judge panel of the 5th U.S. Circuit Court of Appeals that Hoyt's ruling appropriately preserves the country's federalist system, which guarantees states rights over matters such as local violent crimes.

"Congress chose to enact an unconstitutional statute which permits Congress to do exactly what our framers (of the U.S. Constitution) would have been appalled by, which is to regulate local violent criminal conduct," Newton said. "We still believe there are 50 states that are separate sovereigns in this country. That is what is at issue here. It's not about abortion rights."

Assistant U.S. Attorney General Peter Keisler, who came from Washington to argue the case himself, shot back by asking the appeals judges to recognize the simple motives behind acts such as the one Bird is accused of. "It doesn't propose a commercial transaction, but it does interfere with the workings of an interstate market," Keisler said of the alleged attack.

Keisler cited numerous prior court decisions — including one in the same 5th Circuit involving a prior attack by Bird — which state that Congress can regulate local activities that have a national effect.

In the prior case, Bird was convicted of throwing a bottle at the car windshield of a doctor from another clinic. He received a year in federal prison and was required to pay $820.67 in restitution.

"If there were a national industry which manufactured something that was important to national defense, and someone was engaging in assaults on local plants in order to sabotage that industry, there's no question Congress would have the authority to protect that interstate market from those local, noncommercial acts," Keisler said.

Jennifer K. Brown, legal director for the New York-based women's rights group Legal Momentum, helped file a third-party brief in the case in support of the so-called FACE law.

She said that in the case of abortion clinics, a local attack can dissuade doctors in other states from continuing to perform abortions or prompt them to spend more money on security, which could possibly raise prices for patients.

That argument mirrored past court rulings, one of which was cited in Tuesday's hearing by Judge Emilio Garza.

While questioning Newton, Garza pointed to prior rulings which stated the regulation of in-state activities was needed to ensure availability of abortion services in terms of both access and price.

"It seems to me that clearly subverts your position," Garza said.

The panel took the case under advisement and did not indicate when it would rule.

Flashback - August 20, 2003
Federal Judge Rules Part of FACE Act Unconstitutional,
Man who crashed abortion clinic wins legal respite
Houston Chronicle
Charges against a man accused of driving his van through the front entrance of a Houston abortion clinic in March were dismissed by a federal judge who ruled a part of the Freedom of Access to Clinic Entrances Act unconstitutional. Frank Lafayette Bird Jr., 61, was arrested after his van crashed through the doors of the Houston Planned Parenthood clinic on Fannin. U.S. District Court Judge Kenneth Hoyt on Monday dismissed the case against Bird with prejudice, meaning the charges cannot be refiled as originally drawn. Hoyt points out in his opinion that Congress enacted the FACE Act under the Commerce Clause of the U.S. Constitution. The Commerce Clause gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Then Hoyt points out that all six circuit court affirmations of the FACE Act occurred before a 2000 U.S. Supreme Court decision that calls Congress' Commerce Clause authority into question. "The judge simply applied that U.S. Supreme Court precedent" to Bird's criminal case, said Brent Newton, the federal public defender representing him.

Posted by Editor at November 30, 2004 03:30 PM