The key paragraphs come 215 pages into the behemoth Financial Services and General Government appropriations bill, and they’re eye-glazing.
“Section 5 of the Corrections Oversight Improvement Omnibus Amendment Act of 2022 is repealed, and the provision of law amended by such section is restored as if such section had not been enacted into law…” zzz.
But behind two dense lines of text in one of the 12 must-pass House appropriations bills lies a contentious battle over abortion, free speech, social decency — and a peek into the pipeline from anti-abortion protesters to their powerful supporters in Congress.
The story starts in August 2015, when the Two Rivers Public Charter School in northeast Washington D.C. was holding its parent-student-teacher conferences, according to court documents.
Next door, a new Planned Parenthood facility was in the works. Anti-abortion protesters, having been booted from the construction zone when Planned Parenthood reportedly won an injunction, shuffled down the street, setting up camp in front of the school.
On the day of the conferences, the protesters displayed large posters of dismembered fetuses outside the school’s entrance, according to court documents. And then they kept coming back.
In footage obtained by TPM, two of these recurring protests in the fall of 2015 show the protesters not just using the school’s sidewalks for their proximity to the clinic-in-progress, but to direct their comments to the students, some of whom were as young as three or four.
“Ask your parents why they kill kids next door and how they can stop it,” one cries as parents and teachers rush the kids from a line of cars into the school.
“Are you really okay with this being built next to your school?” another asks a student, trying to force a pamphlet into her hand as she scuttles by.
“Tell your parents to stop this bloodbath that’s coming to your neighborhood,” one says as a beleaguered looking staff member inserts her body between the students decamping from the car and the protester. “The little babies need your voice!”
Most of the protesters hold signs featuring fetuses. Protester Robert Weiler Jr. — who had earlier served five years in federal prison for a plot to blow up an abortion clinic in Maryland — holds a large yellow banner peppered with clipart sad baby faces reading “They kill babies nearby! Tell your parents to stop them.”
In one of the videos dated November 2015, a gaggle of parents stands watching the protesters as one person films. One of them makes a comment about these tactics being deployed against the kids.
“There’s a murder facility next door!” one of the protesters responds indignantly. “Are we really the weirdos?”
“Yes,” someone offscreen mutters.
The Case
The school took the handful of protesters to court. It was seeking an injunction on the grounds of intentional emotional distress and public nuisance to keep the protesters away from the school. Weiler bowed out of the case back in 2016, when he agreed to an injunction limiting his ability to protest near the school, saying he hadn’t planned to continue protesting there anyway.
The school won at the trial stage, with a judge ruling that the school was “likely to succeed on the merits.” But on appeal, the D.C. Court of Appeals ruled that the school lacked standing to sue on behalf of the students. The anti-abortion protesters and their backers cheered that decision as ultimate vindication.
The protesters then made a move that, in time, would come to involve Republicans on the Financial Services and General Government subcommittee. They filed for over $1 million in fees under D.C.’s anti-strategic lawsuits against public participation (SLAPP) act, which is meant to dissuade lawsuits that might intimidate those exercising First Amendment rights “on issues of public interest.”
While the Two Rivers case unspooled, the school’s lawyers, among others, went to government officials including the D.C. Council to get an exemption to the anti-SLAPP law for the district’s public charter schools. Some advocacy groups, including the ACLU, opposed the amendment. City council members ultimately decided to adjust the city’s anti-SLAPP Act to wall off the schools, and it was bundled into an unrelated piece of legislation.
The appeals court has yet to rule on the anti-abortion protesters’ request for the money, which the school says that, aside from being unfounded, it can’t afford.
“Being a non-profit institution, Two Rivers has limited financial resources — that would certainly be stretched thin if more than a million attorney fees are awarded,” Two Rivers’ lawyers wrote in a filing earlier this year. “Even Defendants admit that such an award would cause ‘severe negative’ consequences on Two River’s ability to function at full capacity.”
Now, as a result of that D.C. law change, public charter schools are explicitly excluded from anti-SLAPP lawsuits and the anti-abortion protesters would seem to have little chance at success.
Enter: the Republican House appropriators.
Up the Pipeline
Those mind-numbing paragraphs — included in the earliest publicly available versions of the House Financial Services appropriation bill — would repeal that amendment to the D.C. anti-SLAPP law, which excludes the public charter schools from those lawsuits. In other words, this hyper-specific rider would give the anti-abortion protesters at least a fighting chance to win the money, should that provision make it into the final version of the bill.
A spokesperson for subcommittee chair Steve Womack (R-AR) did not respond to TPM’s questions about how the local case made it into the legislation.
But a bill summary from the Republican House appropriators makes the aim of the amendment clear.
“Reverses a D.C. exemption for public charter schools from Anti-Strategic Lawsuit Against Public Participation (SLAPP) Law, so that pro-life protestors are treated fairly and equally under D.C. laws,” it lists under D.C. policy riders.
“This is a scalpel,” Two Rivers’ lawyer Mike Murphy told TPM of the amendment’s specificity.
It’s unclear how a fairly low-level case caught the attention of Republican House appropriators. But the law firms representing the anti-abortion protesters enjoy considerable influence among conservative Republicans.
One of those is the Thomas More Society, a conservative Catholic outfit that focuses on anti-abortion and anti-same sex marriage litigation. It became even more closely wedded to the Republican political world in the Donald Trump era, when it stood up a group to file lawsuits in an attempt to overturn the 2020 election. Jenna Ellis, a senior Trump campaign legal adviser, served as special counsel to the group. Michael Gableman, who led the Wisconsin Assembly’s partisan investigation in the 2020 election in the state, listed the firm as his employer just after he was fired by the Republican speaker of the state assembly in 2022.
Another is Liberty Counsel, an evangelical firm with links to Liberty University’s law school. It specializes in a similar realm of issues, coming to prominence for defending Kentucky clerk Kim Davis when she refused to give marriage licenses to same-sex couples after the Supreme Court handed down Obergefell. It has been designated as an anti-LGBTQ hate group by the Southern Poverty Law Center.
Founder and chair Mat Staver has been open in urging support for Trump, particularly in the aftermath of the 2020 election.
“Our research and legal staff have been deeply engaged in stopping the steal of our 2020 elections,” he wrote in a blog post-fundraising appeal hybrid dated January 7, 2021. “As I have written for months, the sheer volume of credible, unmistakable evidence of election fraud that occurred is shocking.”
None of the Thomas More Society or Liberty Counsel lawyers involved in the D.C. case responded to TPM’s inquiries.
The chances that the House’s anti-SLAPP rider makes it into law are somewhat slim. The House Financial Services appropriations bill, in particular, is hung with riders that Democrats abhor — from enforcing an abortion ban in D.C. to slicing out coverage related to abortion and gender affirming care from the Federal Employees Health Benefits program.
The Senate version of the bill — unanimously approved by the Senate Appropriations Committee earlier this month — does not include the repeal of D.C.’s law.
Still, it is not one of the two House appropriations bills that President Joe Biden has so far said unequivocally that he would veto if they reached his desk.
