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The Dangers in the Bankruptcy Reform Bill (H.R. 333)
September 7, 2002
By Timothy T.C. McGhee

Senator Chuck Schumer wants to make sure that any pro-life sidewalk counselor near an abortion clinic could potentially have to pay money to abortion providers for the rest of their lives. Literally. And with Section 330 in the conference report that nearly passed in late July, he came within inches of enacting exactly that into law.

2002 Legislation

This legislation, like other major issues such as campaign finance reform, has been around for more than one Congress. In this case, bankruptcy reform began in 1997 (S. 530). For the most part, this legislation, which addresses personal credit cards, medical bills, unemployment, etc., is fairly innocuous with respect to the life issue. However, for as long as there have been people trying to stop abuses of the bankruptcy system, Chuck Schumer has been trying to get his language enacted into law right along with them.

This time around, the 107th Congress, his staff have found ways to very cleverly disguise his legislation and make it hard to find on the Web. However, the legislation has barely changed since he began. During the 106th Congress bankruptcy reform in the Senate was known as S. 625, and Schumer's amendment was described as an amendment to “ensure that debts incurred as a result of clinic violence are nondischargeable.”

Wait a minute. Forget what “violence” may mean, how could violence create debt for a person? To help answer that question, one does well to look further back in the 1990s at legislation Chuck Schumer put forward. In fact, the provisions Schumer is pushing now are very similar to a law he introduced that was passed in the 103rd Congress.

Before Bankruptcy Reform

Before 1998 Schumer was a member of the House of Representatives. In early 1993, then-Representative Schumer introduced legislation to target people who protest at abortion clinics: H.R. 796, the Freedom of Access to Clinic Entrances Act, or FACE. With the help of Ted Kennedy in the Senate, the Senate version, S. 636, was enacted into law.

FACE says, “Nothing in this section shall be construed to prohibit any expressive conduct including peaceful picketing or other peaceful demonstration.” That's who the law is not supposed to target. However, when one considers that the law targets people who protest an institution's purpose, it all but explicitly targets pro-life demonstrators.

Among the more subtle prohibitions in this bill are for anyone who “intimidates or interferes with” or even attempts such things against anyone who is or has been “obtaining or providing reproductive health services”—the euphemism in law for abortion. Critical terms like “violent,” “nonviolent,” “peaceful,” “nonpeaceful” and others are never defined.

The law is very specific with respect to whom is targeted (content)—pro-life protestors—and vague with respect to what that person is and is not allowed to do (action).

Prosecutors seek justice. Abortion advocates want to annihilate their opposition.

It is important and instructive to note that FACE includes civil provisions. Civil law works different than criminal law. In criminal law, it's up to a prosecutor to prosecute laws and pursue criminal punishment of fines or prison time. In civil law, opponents hire trial lawyers to utterly drain their targets with exorbitant damages awards. Prosecutors seek justice. Abortion advocates want to annihilate their opposition.

Under FACE, abortion providers or clients can sue pro-life protestors outside a clinic under the civil provisions in FACE for damages. That explains how one can incur a debt “as a result of clinic violence.”

FACE Transplant

Fast-forward to bankruptcy reform. The language Sen. Schumer is cementing into the bankruptcy reform bill is strikingly similar to FACE. This language would speak directly to all judgments handed down under FACE and any to which FACE could apply.

Judgments related to violence are already not dischargeable under current bankruptcy law. Chuck Schumer is adding the FACE language to ensure that any protests we would consider “nonviolent” are also ineligible for bankruptcy protection.

Here's how the two parts of Schumer's 10-year strategy fit together for the abortion industry: they get to sue the life out of pro-life protestors for damages (FACE in 1994), and the protestors are stuck paying back to the abortion industry for the rest of their lives (bankruptcy “reform,” 1997-2002).

Apparently it's not enough to send your opponents into bankruptcy. It seems Chuck Schumer wants to keep his opponents bankrupt indefinitely. FACE in bankruptcy law would make it possible to crush pro-life protestors with a massive financial judgment and make sure there's no possibility for redemption.

Chuck Schumer is a very patient and persistent man. He has been working out this strategy for 10 years beginning with FACE in 1993. He has leeched onto bankruptcy reform bills with FACE language for 5 years. Most recently he held the bankruptcy reform conference committee hostage for four months and still succeeded in keeping his language in the bill. The language has been nearly identical every time. His intentions seem to be clear, and he shows no signs of letting up.

Bankruptcy Reform and FACE in 2002

The latest incarnation of bankruptcy reform passed both chambers of Congress in July 2001 and went to conference. In May of this year, those conferees finally began meeting. For four months they went back and forth, mostly over this single issue.

Broadening the target range of the language to include other protestors does nothing to diminish the threat to pro-life protestors.

Right before the House left, Rep. Henry Hyde agreed to a “compromise” that would change “reproductive health services” to “lawful goods and services.” However, broadening the target range of the language to include other protestors does nothing to diminish the threat to pro-life protestors. Therefore, Rep. Chris Smith and several others very quickly formed a coalition to undermine support for the final conference report. God be praised, they succeeded in stopping the conference report—so far.

This was no small feat in that “everyone” thought the bill would inevitably pass now that the conference committee had reached a consensus. The media and even the president had publicly signed off on the bill; only formalities remained. NOW had even claimed one of their most significant victories in years. It's nice to know the God who changes our plans now and then, amen?

A complete analysis of the current bill including a side-by-side comparison of provisions in bankruptcy reform and in FACE is available in PDF format from the Republican Study Committee.

Framing the Issue

Our opposition is often good at organizing propaganda. They have made it difficult for us to oppose this legislation without making us sound like we are promoting bankruptcy for pro-life protestors. However, what one needs to remember is that generally, the only reason a pro-life protestor would ever declare bankruptcy is because of a massive financial judgment because of their pro-life convictions.

Complicating matters is the fact that most pro-life protestors (a) already want to avoid being a lightning rod, and (b) like anybody, consider their finances private and not for public consumption, especially when facing something problematic like bankruptcy.

But this is an important issue with very serious and dangerous consequences.

Schumer's strategy is already being fulfilled. One need only look to their success with FACE and other similar lawsuits in which millions of dollars that have been awarded in damages against “violent” protestors. The definitions of “violent” and “death threat” have been stretched to unprecedented levels.

For example, one time Joe Scheidler left a business card for an abortion clinic director with the words “Choose life” on it. This was presented and accepted as evidence of a “death threat” in NOW's RICO lawsuit.

NOW v. Scheidler is going before this Supreme Court this coming year. Even though Joe Scheidler was sued under the RICO statute back in 1985, and FACE was first considered in 1991 (H.R. 1703/S. 798), the FACE provisions in the bankruptcy law would still affect cases that FACE would now affect.

Matters for Prayer

There are many matters for prayer here.

"And let us not be weary in well doing:
for in due season we shall reap, if we faint not”
(Galatians 6:9).

Tim McGhee is a legislative analyst with Capitol Hill Prayer Partners.