How have state attorneys general and the DOJ historically differed on invoking the FACE Act in politically charged protests?
Executive summary
Federal enforcement of the Freedom of Access to Clinic Entrances (FACE) Act has historically concentrated on protecting reproductive health clinics, with the Department of Justice (DOJ) bringing dozens of cases and seeking injunctions in multiple states [1], while state attorneys general have varied widely—some declining to bring charges in contentious church or protest incidents and others aligning with federal actions or pressing their own cases [2] [3]. That divergence reflects differing institutional priorities, evidentiary thresholds, and partisan pressures: critics point to longstanding DOJ focus on anti‑abortion protesters [4] [5], while defenders of federal action argue FACE is applied without regard to viewpoint [6].
1. DOJ’s historical enforcement pattern: clinic-centered and selective in practice
From its passage in 1994, the FACE Act has been most frequently used to stop blockades and violence at abortion clinics; the Civil Rights Division reports more than 15 FACE actions in over a dozen states and a record of obtaining temporary restraining orders and injunctions [1], and reporting compiled by news organizations shows hundreds of FACE-related matters between 1994 and 2024, almost all directed at anti‑abortion protesters according to some summaries [4]. Scholars and DOJ materials note the statute’s original purpose was to reduce violent attacks and obstruction that had plagued clinics; proponents say enforcement reduced such incidents [7] [8].
2. State attorneys general: uneven responses and local prosecutorial judgment
State attorneys general have not acted as a monolith: some state prosecutors have publicly rejected applying FACE to certain politically charged protests—Minnesota Attorney General Keith Ellison, for example, denied that anti‑ICE protesters and a journalist violated the statute while the federal government considered charges [2]—and federal judges have sometimes rebuffed DOJ detention requests in those same cases, signaling gaps between federal charging decisions and judicial reception [3]. Other state AGs and local prosecutors historically partnered with the Civil Rights Division or brought parallel state cases when they judged local harms merited action [1].
3. Legal thresholds and prosecutorial discretion drive divergence
Differences in invocation track legal and procedural realities: FACE requires proof of intent to obstruct access through force, threats, or physical blockade—elements that federal prosecutors must establish for a federal charge [4]—while states can rely on a range of trespass, disorderly conduct, or state civil remedies with different elements. The DOJ’s Civil Rights Section emphasizes joint prosecutions and technical assistance with U.S. Attorneys and state AGs, underscoring a collaborative but discretionary model [1]. When the DOJ reprioritizes or interprets FACE broadly or narrowly, state actors respond according to local law, resources, and political calculus [9] [5].
4. Politics, oversight, and competing narratives shape enforcement choices
Enforcement has been highly politicized: Republican lawmakers and conservative legal groups have accused the DOJ under Democratic leadership of “weaponizing” FACE against pro‑life activists and failing to protect pregnancy centers and houses of worship, calling for repeal or restraint [10] [11], while Democratic members of Congress have urged robust DOJ enforcement to protect clinics [12]. Congressional hearings reflect competing conclusions—some argue DOJ applies the law without viewpoint bias [6], others point to empirical disparities in cases brought [5] [4]. These disputes influence whether state AGs align with federal posture or assert independent stances.
5. Recent flashpoints reveal institutional friction and judicial checks
High‑profile incidents since 2024 have laid bare the difference: the DOJ’s move to investigate or charge protesters who disrupted religious services under FACE prompted state AGs to publicly dispute federal application in some instances [2], and federal courts have pushed back on aspects of DOJ detention and characterization of crimes of violence in these contexts [3]. Meanwhile, advocacy groups and legislators on both sides continue to press for either stronger federal intervention or repeal and deference to state and local enforcement, keeping the doctrine and practice of invoking FACE in politically charged protests contested and evolving [10] [6].