The FBI is investigating ideologically motivated “suspicious criminal or potentially violent” reactions to the reversal of Roe v. Wade as potential acts of domestic terrorism, according to documents obtained by Yahoo News, prompting concerns from civil liberties experts that pro-abortion-rights Americans will be swept up in the FBI’s dragnet for exercising their First Amendment right to protest.
On June 24, the Supreme Court issued its long-anticipated ruling in a Mississippi case, Dobbs v. Jackson Women’s Health Organization, that the Constitution does not guarantee a right to abortion. The decision touched off a wave of protests across the U.S. from both pro- and anti-abortion demonstrators.
Ahead of the decision, the FBI’s criminal and counterterrorism divisions issued guidance to law enforcement across the country warning that the Roe ruling could incite or inspire criminal activity by people on both sides of the abortion issue.
The bureau urged state and local law enforcement to report back any crimes or instances of abortion-related extremist ideology in their communities that could also be investigated as potential federal crimes, according to the June 22 guidance, a copy of which was obtained by Yahoo News.
The FBI also plans to investigate potential violations of the Freedom of Access to Clinic Entrances Act and other federal civil statutes, according to the bulletin. The Justice Department could then add federal charges against people charged with local crimes — from vandalism to violence — in response to the decision. The bulletin gives examples of criminal activity from both sides of the abortion issue that occurred in response to the leak of the Roe decision.
The bulletin provided a list of threat indicators for law enforcement to use to determine whether to report certain incidents to the FBI for review and potential investigation.
Among the indicators are “expressing violent and threatening extremist rhetoric,” “articulating a moral justification for partaking in or threatening criminal, violent activity” and “soliciting information pertaining to reproductive health care physicians and staff.”
The FBI guidance to state and local law enforcement comes in what experts call the most complex and volatile threat environment this country has seen in decades. But it also raises questions about the FBI’s collection of information on — and the surveillance and investigation of — Americans exercising their constitutional right to protest.
The five-page bulletin details criminal acts from both sides of the abortion debate that occurred in various cities around the country since early May, when a draft of the Supreme Court decision was leaked.
Earlier this week the FBI sent police its domestic terrorism reference guide for “abortion-related violent extremism” — a category that includes both “pro-life” and “pro-choice” extremists, according to a copy of the reference guide obtained by Yahoo News.
The guide notes that “historically, the majority of the threat of violence emanates from pro-life extremist lone offenders,” and also states that certain threat indicators could be constitutionally protected conduct.
According to data from the National Abortion Federation — cited in an FBI bulletin produced by its San Diego field office in May — on violence and disruption toward abortion providers, from 2019 to 2020, incidents of arson rose from one to five; assault and battery incidents increased from 24 to 54; death threats or threats of harm rose 200% and incidents of vandalism rose from 70 to 80.
This data was not included in the June 22 FBI guidance, which says the threat is coming from both sides and focuses largely on providing indicators of ideological motivations. This could give police reading the bulletin the wrong impression about which side is more likely to be violent and affect how police respond to protests in their area, said Mike German, a fellow with the Brennan Center and former FBI agent.
“Because now any police department who receives this, as we’ve seen in the streets ... can use this as an opportunity to go target pro-choice groups because they look at any kind of disruptive activity like marches and sit-ins as terrorism [and] they tend to overreact to those incidents,” German said.
In both its guidance and in a statement to Yahoo News, the FBI has insisted that it cannot launch investigations solely based on protected speech or activity.
“We focus on individuals who commit or intend to commit violence and criminal activity that constitutes a federal crime or poses a threat to national security,” an FBI spokesperson said. “The FBI investigates only when someone crosses the line from expressing beliefs to violating federal law.”
But civil liberties and legal experts worry that the FBI’s request for state and local ideologically motivated criminal or potentially violent activity could lead to the collection of information on protesters with strong beliefs on abortion.
“I think this may become a fishing expedition, but the FBI is also not wrong that there’s a high likelihood of violence around this issue,” said Amanda Shanor, an assistant professor at the University of Pennsylvania, who is an expert in First Amendment and constitutional law.
“My concern is that, whatever the FBI’s initial goals, this may lead to a program that surveils people and organizations with strong views on reproductive rights [or abortion] based on their First Amendment protected activities,” she said.
Shanor added, “Despite what the report says — that the FBI doesn’t investigate, collect or maintain information on U.S. people for the purpose of monitoring their First Amendment activity — it may invite their law enforcement partners to do that.”
John Cohen, former counterterrorism coordinator at the Department of Homeland Security, which circulates similar guidance to law enforcement partners across the country, acknowledged that “there’s proximity between protected speech and threat-related activity.”
“The job of DHS Intelligence and Analysis or law enforcement is not to focus on protected speech,” he told Yahoo News, “it’s to discern that which is protected speech from that which is threat-related activity, and in order to do [that] there has to be very clear guidance. ... If not, you run [the] risk of law enforcement paying attention to people who are engaged in constitutionally protected activity in advocating their beliefs on a public policy issue.”
In the days following the Roe v. Wade decision, law enforcement has clashed with pro-abortion-rights protesters and journalists in cities like Los Angeles and Washington, D.C.
On Thursday, more than 180 people were reportedly arrested at a pro-abortion-rights rally near the Supreme Court, including Rep. Judy Chu, D-Calif. At an evening pro-abortion protest in Phoenix after the ruling, Arizona authorities deployed tear gas and flash-bang grenades on thousands of demonstrators around the state Capitol, Yahoo News reported.
After the draft decision leaked on May 2, Yahoo News reported on the initial flurry of intelligence products circulated immediately after the opinion, alerting authorities to the possibility of violence and civil unrest once the official ruling was released.
Since then, Yahoo News has obtained more than two dozen alerts, analyses, threat assessments and other law enforcement and intelligence products related to potential and credible threats and criminal activity related to or in response to the Roe decision. In the days since the official decision was released, law enforcement officials in New York, Orange County, Calif., central Florida, Washington state, Virginia, Maryland, Delaware and Los Angeles have produced intelligence products detailing acts of vandalism or graffiti in their areas and analyzing potential targets.
Hours after the decision, the Department of Homeland Security circulated a bulletin warning of a likely increase in domestic violent extremism activity in response to Roe.
“Some domestic violent extremists (DVEs) will likely exploit the recent US Supreme Court decision to overturn Roe V. Wade to intensify violence against a wide range of targets,” the DHS bulletin says. “We expect violence could occur for weeks following the release, particularly as DVEs may be mobilized to respond to changes in state laws and ballot measures on abortion stemming from the decision.”
DHS said federal and state government officials, including judges, and factories are most at risk.
“As illustrated in the FBI bulletin, a growing number of localities across the nation have experienced violence and/or destructive behavior by both those who oppose and support abortion,” Cohen said. “Here is the bottom line: The threat environment is volatile and complex.”