In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act. In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:
While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.
Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."
The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”
It went on to reject defendants' free speech arguments, saying in part:
Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...
Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...
Moving to defendants' Free Exercise/ RFRA claims, the court said in part:
The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....
The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:
... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.
