Barrier Method: How a 42-Inch Fence Is Threatening Our Nation’s Unborn
To the barricades: Mahoney is pro-life, anti-fence.
On Tuesday, June 8, the Rev. Patrick Mahoney arrived at Planned Parenthood with the intention of going to jail over a fence.
Two months earlier, the District had granted the organization a permit to build a 42-inch-high “wrought iron steel fence” around the front lawn of its clinic at 1108 16th St. NW. When Mahoney learned of the construction, he notified police, press, and fellow activists; marched onto the lawn; and knelt to pray in hopes of getting handcuffed.
Landscaping changes rarely prompt civil disobedience. Mahoney, a Presbyterian minister and longtime anti-abortion activist, is more concerned with what lies beyond the fence: a grassy, 40-foot-long entryway with a paved center walk that leads to the clinic, where the services include abortions. The turf has historical significance for Mahoney: For years, he and his allies have come to the yard to pray, confront patients, and attempt to convince pregnant women not to abort.
The new barrier, equipped with signs reading, “Private Property. No Trespassing. Violators Will be Prosecuted,” is meant to keep the anti-choicers at a distance. But it also provides an opportunity for Mahoney to pursue his second-favorite activity involving the property in front of the clinic: litigation.
Before Mahoney staged his public prayer, he brought in his go-to attorney, James Henderson of the American Center for Law & Justice. Henderson investigated the issue with city officials and uncovered city maps indicating that the 40 feet between Planned Parenthood’s doorway and the 16th Street sidewalk is zoned as “public space.”
Clinic reps maintain that the property is theirs to police. “The fence serves to protect the health center and our patients from violations of D.C. trespassing laws while still allowing those who are opposed to legal abortion to exercise their First Amendment rights and express their views along the sidewalk,” Planned Parenthood of Metropolitan Washington CEO Laura Meyers said in a statement.
D.C. police concurred, enabling Mahoney his photogenic arrest. “At this point, our attorneys have advised us that they do consider it private property inside the fence line, so if you go inside the fence line, you will be encroaching upon private property,” Cmdr. Hilton Burton informed Mahoney shortly before his planned prayer. Mahoney prayed anyway, Burton arrested him, and the reverend promised to pursue the issue in court.
Indeed, Mahoney rarely misses the opportunity for a court appearance. In 2000, he sued the Supreme Court over a decision banning large picket signs from sidewalks on the high court’s grounds, thus preventing his entourage from toting what the Washington Post described as a gigantic “full-color depiction of a decapitated fetus.” In 2005, he sued the U.S. Marshals Service for the right to picket in favor of the Ten Commandments in a restricted area opposite St. Matthew’s Cathedral. In 2009, he sued the District for refusing to allow a “chalk art demonstration” in front of the White House that was meant to slam President Obama’s “radical support of abortion.”
But Mahoney’s preferred battleground is Planned Parenthood’s walkway. Over the past 20 years, Mahoney and his colleagues have launched several protracted court cases asserting their religious freedom to “counsel” those on their way into the facility.
To local anti-abortion activists, the 40 feet are worth the decades-long battle. “It’s better access,” explains Erik Whittington of Rock for Life, an anti-abortion initiative targeted at teens. Whittington says he’s prayed outside the clinic “at least once a year” since 1995. “I’ve been up there next to the door; I’ve been up on the grass leading prayer circles,” he says. “For women who are coming here to have an abortion, they’re walking up on that public property for about 15 seconds...Forty feet is a long way.”
With the fence, D.C.’s anti-abortion activists are forced to set up shop on the 16th Street sidewalk, where it’s difficult even to identify women seeking clinic services until they’re already out of earshot. “You don’t really have enough time to talk to them that way,” says Dick Retta, an activist who is familiar with the disputed terrain. “Outside the fence, you’ve only got maybe three to four seconds.”
Back in the ’80s, Mahoney would commandeer local clinic entrances for days at a time. The dispute over the Planned Parenthood entryway originated in 1989, when Mahoney and Christian activist organization Operation Rescue staged a series of “rescue” missions “involving physical blockades” that prevented access to several local health centers. In response, District Court judges laid down an injunction barring the protesters from “trespassing on, blockading, impeding or obstructing access to” D.C. abortion clinics.
Since then, Mahoney has fought a series of injunctions designed to keep him at a distance from local abortion providers. In 1994, Congress made the courts’ job easier with the Freedom of Access to Clinic Entrances (FACE) Act. The measure forced Mahoney to reconsider his tactics. He began, of course, by challenging the act in court. Later, he settled for talks—on-site prayer demonstrations and targeted “sidewalk counseling”—instead of blockades. The idea was to provoke a reaction that Mahoney could then take to court. After all, what’s a few days in front of a clinic when you can tie up an abortion provider in litigation for years?
On Jan. 23, 1998, the day after the 25th anniversary of Roe v. Wade, Mahoney planned one of his arrest-baiting protests at now-defunct abortion provider the Capitol Women’s Center. When Mahoney arrived, “volunteers had already created a human chain in front of the clinic” to assist those entering, according to court documents. Five of Mahoney’s cohorts took a knee on the center’s sidewalk, at which point police officers “cordoned off the front of the clinic with police tape.” Mahoney crossed the line anyway and was arrested for violating FACE. A court issued a permanent injunction forbidding the minister and his allies from “coming within a twenty-foot-radius of any reproductive health facility” located inside the bounds of the Capital Beltway—including Planned Parenthood.
More recently, Mahoney’s litigious strategy has been embraced by younger activists. In 2005, Christendom College student Daniel Heenan sued Planned Parenthood after a tussle with a security guard. In those pre-fence days, the protesters’ no-fly zone was delimited by a spray-painted line on the pavement 20 feet from the clinic. According to court documents, it marked “the boundaries of an injunction issued by the United States District Court for the District of Columbia” against—whom else?—a “discrete group of individuals affiliated with Rev. Patrick Mahoney, who had been found by that court to have violated the Freedom of Access to Clinic Entrances Act of 1994.”
Inspired by Mahoney, Heenan had turned up the previous May intending to cross the boundary. Police were summoned. Pro-choice volunteers linked arms. Heenan crossed the line. Then, according to court documents, Harry James, a former Metropolitan Police Department officer working as a clinic security guard, “placed one hand on Heenan’s collar and another on his belt” and “attempted to turn Heenan around and walk him away from the building.” At some point in the commotion, “Heenan fell to the ground, and James tumbled over him.”
Heenan, also represented by Henderson, asked for $35,000. He lost in court. But, just like Mahoney’s suit, the ruckus took up a little bit of Planned Parenthood’s time and energy and money, which was kind of the point.
Photo by Darrow Montgomery