McConnell’s strong anti-choice passions have also led him to oppose and question the constitutionality of federal legislation to protect against clinic violence, despite changes in the final law that addressed legitimate First Amendment concerns. Even after these changes, McConnell has continued to criticize the Freedom of Access to Clinic Entrances Act (FACE) as an “unjust” law, despite judicial opinions affirming the law’s constitutionality and First Amendment safeguards. Moreover, he has stated his admiration for a federal judge who intentionally refused to enforce the FACE law. McConnell’s record raises serious concerns about whether he could set aside his own biases in reviewing cases that would come before him as a judge relating to the constitutionality and propriety of laws protecting clinic access.
Congress enacted the FACE law in 1994 in response to a “systematic and nationwide assault that [was] being waged against health care providers and patients,”64 which included “blockades and invasions of medical facilities, arson and other destruction of property, assaults, death threats, attempted murder and murder . . . .”65 Congress further found that federal legislation was necessary because “state and local authorities had proved inadequate, and sometimes unwilling, to curb the violence”66
Despite the documented need for federal legislation to address this national campaign of violence, threats and obstruction directed at medical clinics, staff and patients, McConnell maintains that “there was no need for legislation against violence” because violence “was already illegal.”67 While eschewing and condemning anti-choice violence himself, McConnell’s strong anti-choice passions raise serious concerns about his ability to honestly confront the extent and nature of the organized national campaign of anti-choice violence, threats and force. This in turn might well cloud his ability as a judge to provide unbiased analysis and judgment with respect to legal efforts to restrain such activity.
This concern is demonstrated by McConnell’s continued opposition to FACE even after the Senate amended the legislation to address First Amendment concerns and make crystal clear that the statute only applies to illegal conduct and not to lawful speech and protest. For example, at the Senate Labor and Human Resources committee hearing in 1993, McConnell stated his view that the law was unconstitutionally vague and overbroad because the terms “obstruction,” “intimidates” and “interferes with” were not defined in the bill at the time and “could be construed to include much entirely lawful conduct.”68 The Senate appropriately addressed these First Amendment concerns by defining each of these terms to make clear that the statute prohibits only illegal conduct and not lawful speech, and these changes became part of the final law.69
In commenting on the Senate changes, McConnell nevertheless stated that “[t]he definitions are still constitutionally problematic.”70 In 1997, after FACE had been enacted and federal courts had upheld and construed the statute as not applying to any protected First Amendment conduct,71 McConnell continued to maintain that the statute’s terms were “so vague, and the coverage so sweeping” as to hinder lawful protest.72 Moreover, McConnell’s distorted analysis flies in the face of the provision in the final enacted version of FACE that explicitly states that the statute does not “prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.”73
McConnell’s view that FACE unconstitutionally targets only anti-choice expression also has been soundly rejected by the federal courts reviewing FACE as well as by the Supreme Court in cases relating to protection of clinic access.74 As one federal appeals court stated in flatly rejecting this argument, FACE’s prohibitions “apply to anyone who blockades a clinic to prevent a woman from getting an abortion, regardless of the message expressed by the blockade.”75 McConnell even stated that the Senate’s adoption of a “religious liberty amendment” proposed by Senator Hatch, which imposed the same prohibitions and punishments on illegal conduct directed at religious institutions as at clinics, did not “cure” his perceived constitutional problem but “arguably broaden[ed] it.”76 Thus, despite Senate changes that addressed any legitimate First Amendment concerns about FACE, McConnell concluded in his article that the law still was “of highly doubtful constitutionality.”77 Every federal court of appeals that has reviewed FACE has uniformly upheld its constitutionality and rejected the First Amendment challenges suggested by McConnell, and the U.S. Supreme Court has refused to hear constitutional challenges to the law.78 Significantly, the Tenth Circuit to which McConnell has been nominated has not yet ruled on the constitutionality of FACE.
Finally, it is troubling that McConnell stated his admiration for a federal judge who intentionally refused to enforce an injunction against two men who admitted blocking the driveway to a family planning clinic, as they had done on several occasions during the prior seven years.79 While their protest was non-violent, the conduct of the two men was clearly illegal as they physically obstructed cars from entering the clinic area. Although McConnell conceded that Judge Sprizzo’s acquittal of the two men was improper, he stated that he could not “help but admir[e] the judge’s act” calling it “courage in defense of conscience.”80 He concluded by recommending that the judge should have imposed a fifty-dollar fine or a suspended sentence as a slap on the wrist,81 thus evading the intent of the law and sending the message that repeated obstruction of medical services at the clinic would not be a problem and could continue presumably without real consequences.
McConnell’s record clearly raises significant concerns about his ability to uphold and enforce laws protecting women from violence, threats and obstruction in receiving medical services at family planning clinics.