Explainer: DOJ Uses KKK-Era Charge to Extend Prison Time for Pro-Life Activists

DALLAS, TEXAS - JANUARY 15: Pro-life demonstrators listen to organizers and activists duri
Brandon Bell/Getty Images
Katherine Hamilton

Pro-life activists who prayed and sang hymns during a peaceful protest at a Tennessee abortion clinic in 2021 could spend 11 years behind bars thanks to the Department of Justice’s (DOJ) use of a federal law created to target Ku Klux Klan members after the Civil War.

Not only were these six activists charged with violating the Freedom of Access to Clinic Entrances (FACE) Act — a misdemeanor charge that carries with it fines and a maximum prison sentence of one year for a first offense — they were also charged with “conspiracy against rights,” colloquially referred to as the “KKK Act.” Conspiracy against rights carries a ten-year maximum sentence, heavily bolstering potential prison time.   

“The KKK Act automatically turns any violation of an underlying law — or if you conspired to violate a federal law — it converts it to a felony,” Thomas More Society Executive Vice President and general counsel Andrew Bath told Breitbart News in an extensive phone interview. “So now you’re facing a felony prosecution, even if your conviction under the FACE Act would’ve been a misdemeanor.”

The conspiracy against rights statute was passed in 1870 after the Civil War, when “members of the Ku Klux Klan … terrorized black citizens for exercising their right to vote, running for public office, and serving on juries,” according to the U.S. Senate’s website. In response, Congress passed a series of statutes “to end such violence and empower the president to use military force to protect African Americans.”

Conspiracy against rights specifically “makes it unlawful for two or more persons to agree to injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States or because of his or her having exercised such a right,” according to the DOJ.

“Now they’ve brought [conspiracy against rights] back to use against pro-lifers,” Advancing American Freedom (AAF) policy adviser Jonah Wendt told Breitbart News.

President Joe Biden’s DOJ has repeatedly vowed to dial up FACE Act prosecutions in the lead up to, and after the Supreme Court issued, its Dobbs ruling, which overturned its 1973 Roe v. Wade decision inventing a constitutional “right” to abortion. The FACE Act was signed into law in 1994 by then-President Bill Clinton and outlaws “violent, threatening, damaging, and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain, or provide reproductive health services.”

The act was written to equally protect abortion clinics, pro-life pregnancy resource centers, and churches. However, the DOJ and FBI have faced criticism, especially in the past two years, for appearing to unequally apply the statute to go after pro-life activists — even though pregnancy resource centers and churches experienced more than 100 attacks, including vandalisms and fire-bombings, in the wake of the Dobbs leak. 

“Prior to [Assistant Attorney General for Civil Rights] Kristen Clarke, FACE Act charges were never paired with conspiracy against rights. Since she took over, it’s now standard that if you get charged with the FACE Act, they slap on conspiracy against rights to increase the years from 1 to 11,” Wendt said.

“This is a new trend,” Bath also noted.

Bath pointed to a March of 2022 DOJ report — issued after the Supreme Court heard oral arguments in the Dobbs case — in which attorney Sanjay Patel recommended the DOJ pair conspiracy against rights with the FACE Act to increase prison time for pro-life supporters.

“FACE Act violations are often planned and coordinated offenses that involve more than one subject. In those situations, the investigations may reveal evidence that support conspiracy charges in addition to the underlying offense,” Patel wrote in the article, titled “FACE Off with Anti-Abortion Extremism—Criminal Enforcement of 18 U.S.C. § 248 (FACE Act).”

“Although criminal conspiracy offenses are usually charged under 18 U.S.C. § 371, a conspiracy to commit a FACE Act offense should be charged under 18 U.S.C. § 241— conspiracy against rights,” he continued.

Patel specifically wrote that there are “three advantages” to charging activists with conspiracy against rights in addition to a FACE Act violation, “when the evidence supports it.”

People attend the annual March for Life rally on the National Mall on January 19, 2024, in Washington, DC. (Kent Nishimura/Getty)

“First, unlike a section 371 conspiracy, a [conspiracy against rights] conviction is always a felony, even when the underlying substantive violation would be a misdemeanor,” he wrote. “Second, [conspiracy against rights] violations are punishable by up to 10 years’ imprisonment; or up to life or the death penalty, if certain aggravators apply. And third, under [conspiracy against rights], the government is not required to prove an overt act or substantial step in furtherance of the agreement.”

The report made no note of threats of violence against churches or pro-life pregnancy resource centers and instead focused on a series of shootings and violent attacks on abortion clinics and abortionists between the 1970s and 1990s as examples proving the need to dial up FACE Act prosecutions.

The report also included an introduction written by Kristen Clarke, in which she emphasized that enforcement of the FACE Act is “particularly important now given certain anti-Roe legal and advocacy efforts underway in parts of the country.”

“From policy perspective, the reason you would [pair conspiracy against rights and the FACE Act] is to make sure that the law has the chilling effect of convincing pro-lifers to not sidewalk counsel,” Wendt assessed. “When you are threatened with jail time, it has a punitive, deterrent effect.”

DOJ Trying to “Send a Message”

Bath said the DOJ has increased its intensity to “send a message to people because as a pro-life activists have refined their techniques, they become more and more effective at saving babies.”

Thomas More Society has notably represented several pro-life activists who have been charged with both conspiracy against rights and violating the FACE Act, including the most recent case in Tennessee as well as the high-profile cases involving leftist pro-lifer Lauren Handy and Catholic father of seven Mark Houck, who was found not guilty.

RELATED: D.C. Examiner Halts Planned Disposal of Late-Term Aborted Babies After Pressure Campaign

“[The DOJ is] not only charging people like this, but they are federalizing these crimes, which should be local offenses if they are, in fact, offenses,” Bath said.

“They combine [the charges] with the very unnecessary early morning swat-style arrests, and what they’re trying to do is terrify pro-life activists and get them away from the sidewalks,” he said, referring to both Houck and father of 11 Paul Vaughn, who were arrested by armed FBI agents in front of their families.

Specifically after the arrest and acquittal of Mark Houck, Republican lawmakers were outraged and began pressuring the DOJ for answers. United States Attorney General Merrick Garland subsequently admitted in March of 2023 that the DOJ has prosecuted more pro-life activists than pro-abortion activists following the Supreme Court’s Dobbs decision but blamed the timing of alleged crimes for the discrepancy.

“I will say, you are quite right: there are many more prosecutions with respect to blocking of the abortion centers. But that is generally because those actions are taken with photography at the time, during the daylight, and seeing the person who did it is quite easy,” Garland told Sen. Mike Lee (R-UT) during a Senate Judiciary Committee hearing. He went on:

Those who are attacking the pregnancy resource centers, which is a horrid thing to do, are doing this at night, in the dark. We have put full resources on this. We have put rewards out for this. The Justice Department and the FBI have made outreach to Catholic and other organizations to ask for their help in identifying the people who are doing this.

Breitbart News reached out the DOJ, asking about its pairing of conspiracy against rights and the FACE Act in recent prosecutions. Breitbart News also asked the agency to list exactly how many pro-life activists have been charged this way compared to pro-abortion activists and to respond to accusations it is enforcing the law unequally to target pro-life activists. Breitbart News further asked the DOJ why its 2022 report advising the use of conspiracy against rights in FACE Act prosecutions makes no mention of violence against pregnancy centers or churches.

The DOJ responded but did not answer the questions asked. Instead, the agency referred Breitbart News to charges filed against pro-abortion activists in Florida and Ohio — which Breitbart News has covered (see here and here) — and pointed to Kristen Clarke’s December testimony in which she said, “The FACE Act is a law that this body [Congress] passed in response to efforts to obstruct access to reproductive health clinics, threats of violence, acts of violence. We follow the facts and apply the law without fear or favor.”

The DOJ also referred to the FBI’s announcement in January of 2023 offering $25,000 for information about attacks on reproductive health service facilities. (Breitbart News also covered this story, see here.)

Fighting the FACE Act

Overall, Andrew Bath and the Thomas More Society are arguing that the FACE Act is no longer constitutional since the Supreme Court overturned the federal “right” to abortion with its Dobbs decision.

“Under our constitutional system of separation of powers, those powers known as the police powers are generally left to the states. There is no sweeping grant of police powers to the federal government under the Constitution,” Bath said.

“Congress believed it had the power to legislate in this area under the Fourteenth Amendment and the Commerce Clause,” he continued. “[Congress] said that because Roe v. Wade granted a right to abortion … found in the Fourteenth Amendment.”

“Well, [Dobbs] overturned Roe v. Wade. So that justification for passing the FACE Act is gone,” he added. “Now, it’s hanging by the narrow thread of the Commerce Clause. The FACE Act was passed in 1994, and the Supreme Court has developed its Commerce Clause jurisprudence quite a bit since 1994.”

WASHINGTON, DC - JUNE 24: Anti-abortion activists celebrate in response to the Dobbs v Jackson Women's Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. The Court's decision in Dobbs v Jackson Women's Health overturns the landmark 50-year-old Roe v Wade case and erases a federal right to an abortion. (Photo by Brandon Bell/Getty Images)

Anti-abortion activists celebrate in response to the Dobbs v Jackson Women’s Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022, in Washington, DC. (Brandon Bell/Getty Images)

Breitbart News senior legal contributor Ken Klukowski noted that the Commerce Clause “gives Congress power to regulate interstate commerce.”

“But there have been three major cases since 1994 that have narrowed the scope of that broad authority, leaving the FACE Act subject to a serious challenge on that front,” Klukowski explained.

Bath told Breitbart News that the ultimate goal is to put the FACE Act before the Supreme Court to let justices have the final say. Thomas More Society announced shortly after the guilty verdict for Tennessee activist Paul Vaughn on January 30 that attorneys are planning to appeal his case to the U.S. Court of Appeals for the Sixth Circuit.

“So, we have some convictions here. We are going to use the appeal as our opportunity to have the FACE Act declared unconstitutional,” Bath said. “We briefed that already in this case, and we’re going to take that to the Supreme Court.”

Republican lawmakers, for their part, renewed calls to repeal the FACE Act after the conviction of activists involved in the Tennessee abortion clinic protest.

Rep. Chip Roy (R-TX) introduced the FACE Act Repeal Act in September of 2023 after eight other pro-life activists, who are still in jail, were found guilty of violating the FACE Act and conspiracy against rights for their role in an abortion clinic blockade that took place in Washington, DC, in October 2020. They could also face up to 11 years in prison.

“Free Americans should never live in fear of their government targeting them because of their beliefs. Yet, Biden’s Department of Justice has brazenly weaponized the FACE Act against normal, everyday Americans across the political spectrum, simply because they are pro-life,” Roy said in a statement at the time. “Our Constitution separates power between the federal government and the states for a reason, and we ignore that safeguard at our own peril. The FACE Act is an unconstitutional federal takeover of state police powers; it must be repealed.”

Sen. Mike Lee (R-UT) is leading companion legislation in the Senate.

“The Constitution reserves general police power to the states, which Congress infringed upon when it passed the FACE Act,” Lee said in September. “Joe Biden’s DOJ has weaponized this constitutionally dubious law against pro-life sidewalk counselors while failing to protect pregnancy centers and churches from arson, vandalism, and violence. It’s time to repeal the FACE Act once and for all.”

“The FACE Act, it seems, is being used by DOJ to punish pro-life protesters but not their pro-abortion counterparts,” Lee said in a post to X on January 30.

“In enacting the FACE Act, moreover, Congress relied on now difficult-to-defend readings of both the Commerce Clause and the Fourteen Amendment. I suspect most of the Republicans who voted for the FACE Act in 1994 would’ve voted differently had they anticipated the one-sided manner in which it would be enforced by DOJ,” he added.

If reelected, former President Donald Trump has also pledged to create a task force to review and potentially pardon or commute the sentences of every “political prisoner who’s been unjustly persecuted by the Biden administration.”

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.

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