In front of the House Judiciary Committee, Prof. Jessica Waters gave a forceful defense of the FACE Act and pushed back on efforts to recast clinic blockades as protected speech.
Editor’s note: The following is written testimony (lightly edited for length and clarity) submitted for the congressional record by Jessica L. Waters, J.D., senior scholar in residence at American University, ahead of the Tuesday, April 28, House Judiciary Subcommittee hearing, “From Tool to Weapon: The FACE Act and the Dangers of Federalizing Criminal Law.”
At the hearing, members of the House GOP—including Texas Reps. Chip Roy and Brandon Gill and Ohio’s Jim Jordan—attempted to rewrite or minimize the history of violence against providers and patients, recasting antiabortion clinic blockades as peaceful protest. The hearing is part of a years-long, coordinated push to undermine the the Freedom of Access to Clinic Entrances (FACE) Act, federal law created in response to decades of violence against providers and patients.
Waters’ testimony offered a clear legal and factual rebuttal: FACE targets conduct, not speech; its constitutionality has been repeatedly upheld; and post-Dobbs threats, obstruction and interstate organizing only underscore the continued need for federal protection.
… Every federal court to consider the constitutionality of FACE … has upheld FACE.
Jessica Waters, J.D.
Written Testimony of Jessica L. Waters, J.D.
Before the House Judiciary Committee
Subcommittee on the Constitution and Limited Government
April 28, 2026
Chairman Roy, Ranking Member Scanlon, and members of the Subcommittee on the Constitution and Limited Government of the Committee on the Judiciary, thank you for the invitation to provide testimony about the constitutionality of the Freedom of Access to Clinic Entrances Act.
FACE Provisions
The Freedom of Access to Clinic Entrances Act (FACE) was enacted in 1994 with strong bipartisan support. Broadly, FACE authorizes both civil remedies and criminal penalties against a person who engages in violent or obstructive conduct intended to interfere with people seeking or providing reproductive health services or seeking to exercise religious freedom at houses of worship.
FACE protects both people and places from unlawful conduct while explicitly excluding protected speech from its purview.
Below I note four important FACE provisions.
First, FACE protects people seeking or providing reproductive health services at reproductive health facilities, and people exercising or seeking to exercise religious freedom at places of religious worship. More specifically, it prohibits anyone from, by force or threat of force or by physical obstruction, intentionally “injur[ing], intimidat[ing] or interfer[ing] with” any person because that person is seeking or has sought to provide or obtain reproductive health services.
The term “reproductive health services” is defined as “reproductive health services provided in a hospital, clinic, physician’s office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.”
FACE likewise prohibits this same conduct against a person who is “lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” Finally, FACE also prohibits attempts to engage in the conduct outlined above.
Second, FACE protects against intentional damage to or destruction of reproductive health facilities because that facility provides reproductive health services and to places of religious worship, and attempts at the same. “Facility” is defined as a “hospital, clinic, physician’s office, or other facility that provides reproductive health services, and includes the building or structure in which the facility is located.”
Third, FACE explicitly distinguishes between protected expressive speech and unlawful conduct. Expressive non-obstructive speech activities such as “peaceful picketing or other peaceful demonstration” are excluded from FACE’s purview. In contrast, unlawful conduct, such as obstruction or violence, is prohibited by FACE.
Fourth, FACE’s prohibitions do not distinguish based on an actor’s viewpoint. Rather, FACE’s protections target unlawful conduct, regardless of the types of reproductive health services one may seek or provide, the type of reproductive health care facility, the views of the actor engaging in prohibited conduct, or the basis of one’s religious belief when seeking to exercise religious beliefs at houses of worship.
… People should be able to seek medical care, and medical professionals should be able to provide it, without fear of violence or intimidation.
Jessica Waters, J.D.
The Need for Federal Legislation
I will briefly address why a federal law—FACE—was and is needed to combat nationwide violence and obstruction at reproductive health clinics. FACE’s extensive legislative history speaks directly to this question.
The October 1993 House Judiciary Committee Report regarding HR 796 documented the impetus for FACE, finding:
“A nationwide campaign of blockades, invasions, vandalism, threats and other violence is barring access to facilities that provide reproductive health services including services arising from the constitutionally protected right to choose. This dramatically escalating violence is endangering the lives and well being of patients, providers, and their respective families.”
The report goes on to explain that from “1977 to April 1993, more than 1,000 acts of violence against providers of reproductive health services were reported in the United States. These acts included at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic ‘invasions,’ and one murder. In addition, over 6,000 clinic blockades and other disruptions have been reported since 1977.”
The Senate Committee on Labor and Human Resources made similar findings, specifically noting an increase in both scope and severity of a “nationwide pattern” of incidents of murder, assaults, blockades, arson, firebombings and threats of force.
Both chambers also noted the need for a new federal law to provide a remedy for this nationwide violence, because, prior to the enactment of FACE, “the laws currently in place at the Federal, state, and local level have proven inadequate to prevent the violent conduct described above.”
Indeed, the Senate Report concluded:
“The national scope of the offensive conduct, and the fact that much of the activity has been orchestrated by groups functioning across State lines, means that the problem transcends the ability of any single local jurisdiction to address it.”
The Senate report made several key findings about the need for a federal remedy:
“[E]xisting criminal laws at the State and local levels have failed to provide the certainty of prosecution, conviction and punishment necessary to deter these activities on a nationwide scale.”
“State and local law enforcement authorities have failed to effectively address the systemic and nationwide assault that is being waged against health care providers and patients. Enforcement of applicable local laws, such as those against trespass, vandalism, and assault, has proved inadequate for several reasons. … [I]n some localities, local officials have willfully refused to act in response to anti-abortion violence and blockades. In some instances, the lack of response by local law enforcement authorities appears to be a result of sympathy by local officials for the objectives of the blockades.”
“[E]ven where local authorities are willing to conscientiously enforce the applicable State and local laws, they are often unable to do so effectively. One reason is that a patchwork of State and local laws is inherently inadequate to address what is a nation-wide, interstate phenomenon. State court injunction powers end at State lines, and a State cannot easily reach persons in other States who may have planned the illegal acts … local law enforcement efforts in different regions are impeded by difficulties in sharing information and coordinating responses.”
“In addition, local law enforcement authorities are frequently overwhelmed by the sheer numbers of the blockaders.”
Based on this well-documented need for federal legislation in this area, Congress enacted FACE pursuant to its delegated powers under Article I, Section 8, Clause 3 of the Constitution—the Commerce Clause—and Section 5 of the 14th Amendment.
The Constitutionality of FACE
In short, every federal court to consider the constitutionality of FACE—and there have been ample opportunities to do so—has upheld FACE.
This is true whether the challenge to FACE has rested on Commerce Clause grounds, First Amendment speech grounds, First Amendment free exercise grounds or 10th Amendment grounds. Given the committee’s focus on questions of federalism, I briefly summarize the controlling authority regarding FACE’s constitutionality under the Commerce Clause and under the 10th Amendment.
Commerce Clause
Article I, section 8, clause 3 of the U.S. Constitution—the Commerce Clause—delegates to Congress the authority to regulate commerce “among the several states”; that is, to regulate interstate commerce.
The FACE legislative history makes clear that clinics and other abortion service providers are involved in interstate commerce, both directly and indirectly. They purchase medicine, medical supplies, surgical instruments and other necessary medical products, often from other states; they employ staff; they own and lease office space; and they generate income.
In addition, many of the patients who seek services from these facilities engage in interstate commerce by traveling from one state to obtain services in another. Clinic employees sometimes travel across state lines to work as well. The types of activities prohibited by FACE have a negative effect on interstate commerce. As the record before the committee demonstrates, clinics have been closed because of blockades and sabotage and have been rendered unable to provide services. Abortion providers have been intimidated and frightened into ceasing to perform abortions.
Two U.S. Supreme Court cases provide the framework for deciding whether Congress has acted within the bounds of its Commerce Clause authority: United States v. Lopez and United States v. Morrison.
Lopez held that Congress has the authority to regulate the channels of interstate commerce; the instrumentalities of interstate commerce, or persons or things in interstate commerce; and activities that substantially affect interstate commerce.
Morrison affirmed Lopez and further clarified the “substantially affects” test, noting that factors courts should consider include whether the activity “has anything to do with commerce or any sort of economic enterprise, however broadly one might define those terms”; whether the statute in question contains an express jurisdictional element; whether there are express congressional findings or legislative history regarding the effects upon interstate commerce of the regulated activity; and whether the relationship between the regulated activity and interstate commerce is too attenuated to be regarded as substantial.
Every federal court—pre- and post-Lopez and Morrison—to reach the question of whether Congress had the authority to enact FACE under its Commerce Clause power has affirmed that it did.
One of the last circuit courts to consider the question, the Third Circuit, explicitly noted and relied on the unanimity among the other circuit courts and held that “FACE is a proper exercise of Congress’s Commerce Clause power.”
Summarizing its reasoning, the Third Circuit echoed its sister Circuit courts in finding:
“[D]ue to the acute shortage of abortion-related services in this country and the resulting national market for abortion-related services, the conduct proscribed by FACE—the commission of blockades and other acts of violence—has a substantial effect on the availability in interstate commerce of reproductive health services. The effect of the misconduct is to deter physicians from providing further services and temporarily and permanently to shut down reproductive health clinics, thus forcing large numbers of women to travel across state lines to obtain services.”
In short, each federal court to consider Congress’s authority to enact FACE under the Commerce Clause has credited the extensive legislative history findings regarding the substantial impact of clinic blockades and violence on interstate commerce and thus found Congress’s enactment of FACE to be well within its powers.
Tenth Amendment
Given Congress’ clear authority to enact FACE pursuant to its Commerce Clause power, courts have also quickly dispensed with arguments that FACE usurped state authority under the 10th Amendment.
Indeed, the 11th Circuit—in a challenge to the constitutionality of FACE—squarely held that because Congress acted pursuant to clearly delegated powers under Article I, “Congress’ valid exercise of authority [in enacting FACE] delegated to it under the Constitution does not violate the Tenth Amendment.”
Post-Dobbs v. Jackson Cases
Importantly, the federal courts have come to these same conclusions about FACE’s constitutionality after the Supreme Court’s decision in Dobbs v. Jackson.
In United States v. Zastrow, the Sixth Circuit squarely confronted the question of whether FACE’s long-affirmed constitutionality was impacted by the Dobbs decision. The Sixth Circuit held that Dobbs had no effect on FACE’s constitutionality, finding that FACE “reaches well beyond abortion related reproductive health services” and that the “Supreme Court’s decision in Dobbs provides no basis to reconsider” prior holdings that FACE is a “constitutional exercise of Congress’s power under the Commerce Clause.”
The Sixth Circuit also affirmed that its prior decisions holding that FACE did not run afoul of the First Amendment speech or free exercise protections continued to stand.
Other federal courts to consider this same question agreed.
In 2023, a Tennessee federal district court found “no court has held that Dobbs did away with the FACE Act.” Relying on the extensive precedent discussed above, the Tennessee district court similarly rejected arguments that FACE enactment exceeded Congress’s power under the Commerce Clause or the First Amendment.
In 2023, a New York district court found: “Nothing in Dobbs calls the constitutionality of the FACE Act into question. Dobbs does not address the FACE Act. It does not consider Congress’s power to enact legislation under the Commerce Clause. Nor does it diminish the interstate economic nature of the reproductive health field.”
In 2023, the D.C. District Court found “[n]othing in Dobbs put the existing Commerce Clause jurisprudence and Congress’s power to protect abortion access into question.”
Where Dobbs does matter is in two areas that underscore the continued need for FACE.
First, Dobbs returned the abortion question to the states, leaving the country with a patchwork of laws. By the end of 2025, 13 states had total abortion bans with limited exceptions in effect, and six states had six- or 12-week abortion bans.
But as has been well documented, the number of abortions did not decline nationwide after these bans went into effect. Instead, people who live in states with bans traveled to other states that protected access to reproductive health care: 170,000 patients in 2023, 150,000 in 2024, and over 140,000 in 2025.
That is, patients and clinics engaged in interstate commerce—the very basis on which FACE rests.
Second, following Dobbs, there was an almost immediate spike in major incidents targeting reproductive health care providers, including arsons, burglaries and death threats. In 2023 and 2024, the National Abortion Federation documented three arsons, 13 invasions, 169 incidents of vandalism, 621 incidents of trespass, 296 death threats, 38 assaults and battery, 777 counts of obstruction, and 12 bomb threats.
Though I wish it wasn’t the case, this continued campaign of nationwide intimidation and violence against reproductive health care providers highlights the continued need for FACE.
As I said in 2024, the bottom line is this: People should be able to seek medical care, and medical professionals should be able to provide it, without fear of violence or intimidation. This is an issue that warrants a federal remedy.
Thank you for the opportunity to testify about this important topic.
