WASHINGTON — Lawyers for an anti-abortion activist sentenced to more than four years in prison for planning the 2020 invasion and blockade of a D.C. clinic have turned their sights toward her appeal – and what they see as a chance at a long-sought victory for the anti-abortion movement at the Supreme Court.
In August, a group of anti-abortion activists led by 30-year-old Lauren Handy, of D.C., was convicted of two felony counts of conspiracy against rights and violating the Freedom of Access to Clinic Entrances (FACE) Act for using ropes, chains and their bodies to blockade the waiting room and entrances to the Washington Surgi-Clinic in October 2020. The group initially attempted to use a fake name and appointment created by Handy to enter the clinic but, when that failed because Handy was recognized from a prior incident, they ultimately forced their way inside. In the process, a clinic employee was knocked to the ground and suffered a serious ankle injury. Handy, who has a history of arrests at other clinics – including two in Virginia and Michigan that resulted in jail time – told police she and other activists were there “basically blocking the facility to prevent abortions” and that activists inside the clinic were willing to “risk the ordinance,” or be arrested.
Last week, a federal judge sentenced Handy to 57 months, or roughly 4.75 years, in prison for her role in masterminding the blockade. Seven co-defendants who also went to trial have been sentenced so far to prison terms ranging from 21 to 34 months. An eighth co-defendant was set to be sentenced later this month and another pleaded guilty to one count of violating the FACE Act last year and was sentenced in August to 10 months in prison.
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Handy was represented at trial by attorneys Martin Cannon and Steve Crampton, of the anti-abortion law firm The Thomas More Society, and local counsel Dennis Boyle and Blerina Jasari, of the law firm Boyle & Jasari. They swiftly filed a notice of appeal to the D.C. Circuit Court of Appeals, where they will argue, among other things, that U.S. District Judge Colleen Kollar-Kotelly erred when she decided not to allow jurors to see an edited video Handy says led her to believe infanticide was occurring at the clinic. In her opinion, barring the video from trial, the judge referred to it as “propaganda.” A WUSA9 review of five years of Department of Health inspection reports conducted following Handy’s arrest in 2022 determined inspectors have consistently found nothing to cite at the clinic.
In an interview with WUSA9, Cannon said they also intend to challenge the constitutionality of the FACE Act head-on by arguing that it no longer has a legal basis in a post-Dobbs world.
“Now, understand that the events in question occurred prior to Dobbs. Roe was still the elephant in the room and these people were kind of flying in the face of Roe,” Cannon said. “Our position is, not only was Roe just lawlessness by the Supreme Court and that eventually that was going to be established – now it has been – but Dobbs has indicated not only that there is no constitutional right to abortion henceforth, but really that there never was. So even though our people were charged with the FACE violation and the conspiracy statute for events that preceded Dobbs, we think that both statutes have zero applicability because there was no federal interest in abortion to regulate or protect.”
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In October 2020, when Handy and her co-defendants blockaded the clinic, and in March 2022, when they were indicted on federal charges, abortion was still a constitutionally protected right under the Supreme Court’s landmark 1973 decision in Roe v. Wade. Two months after her arrest, however, SCOTUS overturned Roe and a related decision upholding abortion rights, Planned Parenthood v Casey, in a 5-4 vote in Dobbs v. Jackon Women’s Health Organization. Chief Justice John Roberts joined the majority in a 6-3 vote to uphold the 15-week abortion ban in Mississippi that spawned the case but declined to endorse overturning Roe and Casey altogether.
Since Dobbs, at least 14 states have passed or implemented existing total abortion bans, according to the non-profit Guttmacher Institute, which monitors laws about contraception and abortion and advocates for expanded reproductive rights. A number of other states like Florida and South Carolina have banned abortion after six weeks, when many women may still not be aware they’re pregnant.
Although the law in D.C. regarding abortion has not changed since Dobbs, Cannon said he believes the shifting legal landscape nationwide may be cause enough for SCOTUS to consider a challenge to the FACE Act when it has declined to do so before.
The FACE Act was signed into law in 1994 by then-President Bill Clinton following a rising trend of crimes nationwide against abortion providers and clinics. Those crimes included dozens of bombings, more than 150 incidents of arson and, in 1993, the murder of Dr. David Gunn outside the Pensacola Women’s Medical Services clinic in Florida. The law bars the use or threat of physical force or obstruction to intentionally injure, intimidate, interfere with, or attempt to do so, any person attempting to access reproductive health services. The law also protects access to places of religious worship and makes it a federal crime to intentionally damage either a reproductive health services clinic or a place of worship.
The law has for years been a target of conservatives, who claim the Department of Justice has selectively enforced it against anti-abortion activists, and has been repeatedly challenged by anti-abortion groups, albeit unsuccessfully. In 1996, the D.C. Circuit upheld the constitutionality of the law in a case titled Terry v. Reno involving Randall Terry, founder of the anti-abortion group Operation Rescue. Since the FACE Act was passed, at least eight federal circuits have considered challenges to the law and all have upheld its constitutionality. The Supreme Court has never agreed to hear an appeal of those decisions.
In February 2023, Handy’s attorneys argued the indictment against her and her colleagues should be thrown out because, they said, the Dobbs decision fatally undermined the charges against her. Kollar-Kotelly disagreed, saying their argument was “predicated on the false legal premise that the predicate statute at issue… only regulates access to abortion.”
“In fact,” Kollar-Kotelly wrote, “it regulates a broad category of ‘reproductive health services,’ including, among other things, ‘counseling or referral services.’”
While the D.C. Circuit seems unlikely to reverse its long-standing precedent on the FACE Act, Cannon said they intend to raise similar arguments in two cases in Tennessee and Michigan, both in the Sixth Circuit, involving the blockades of other clinics. The Thomas More Society is representing defendants in both cases. One of Handy’s co-defendants, Heather Idoni – a former school teacher and book store owner from Michigan who was sentenced Wednesday to 24 months in prison for her role in the D.C. blockade – was among the defendants convicted in the Tennessee case and is set to begin trial in the Michigan case in August.
As yet, the Sixth Circuit has also declined to sign on to the Thomas More Society’s position on the FACE Act. Last year, Cannon’s co-counsel in the Handy case, Steve Crampton, made a similar argument while attempting to convince a panel of Sixth Circuit judges to throw out an injunction barring anti-abortion protesters from the group Operation Save America from blocking the entrances to a Nashville clinic. The panel declined to lift the injunction and sent the case back to a lower court for further argument. A near-total abortion ban went into effect in Tennessee in August 2022 and the clinic in question has since stopped providing in-person services.
Cannon said they’re hopeful the circuit judges will take a different position on appeal in either the Tennessee or Michigan clinic blockade cases – but he placed more hope on a chance to argue before SCOTUS.
“The circuit may also be unwilling because they don’t like making big law,” Cannon said. “The Supremes have no such compunction.”
Handy’s appeal in D.C. is likely to take months to work its way through the circuit. The anti-abortion defendants convicted earlier this year of blockading a clinic in Tennessee are set to be sentenced in July. The Michigan group is scheduled to begin trial in August.
Handy and all but one of her co-defendants have been held without bond since their conviction at trial last year. She requested placement at FCI Danbury, a low-security facility in Connecticut. With credit for time served and the possibility of so-called “good time credit” while in Bureau of Prisons custody, Handy could be released sometime in 2027.