Garland said that cases against perpetrators of attacks on anti-abortion pregnancy centers are harder to prosecute because those attacks occur at night. Nevertheless, paraphrases focusing solely on the time of day ignore the context in which he was comparing vandalism-based crimes literally occurring at night to blockade-style protests that are both live-streamed and necessarily occur during the day.
On March 1, 2023, far-right commentator Jack Posobiec and others shared a video from a U.S. Senate Judiciary Committee hearing claiming that it showed Attorney General Merrick Garland admitting the Department of Justice (DOJ) "doesn't prosecute many Antifa attacks on pro-life pregnancy centers [because] they happen at night."
Several other outlets also made or built off of this assertion. "Attorney General Merrick Garland admitted … the Justice Department prosecutes more pro-lifers than pro-abortionists because the latter commit their crimes at night," reported the Blaze the following day, for example.
While Garland did invoke the generally nocturnal nature of abortion-rights activists' actions against so-called pregnancy resource centers (or anti-abortion pregnancy centers) during that testimony, this talking point or paraphrase omits key context about Garland's statements and inserts the word "Antifa" when it was never said.
The video attached to that tweet came from a March 1, 2023, meeting of the Senate Judiciary Committee that, in part, saw Republican senators question Garland over what they viewed as uneven enforcement of a federal law known as Freedom of Access to Clinic Entrances (FACE) Act.
The FACE Act, passed in 1994, "prohibits violent, threatening, damaging and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain or provide reproductive health services." In broad terms, the act allows federal prosecution of individuals who block access to, or vandalize, a clinic that offers reproductive health services.
As stated on the DOJ website, the act applies both to abortion providers and anti-abortion clinics:
The FACE Act is not about abortions. The statute protects all patients, providers, and facilities that provide reproductive health services, including pro-life pregnancy counseling services and any other pregnancy support facility providing reproductive health care.
Several GOP senators asserted during Garland's testimony that the DOJ's numbers told a different story. In the video shared by Posobiec, Utah Sen. Mike Lee cited the higher number of FACE Act indictments made in the past year against anti-abortion activists compared to abortion-rights activists while highlighting acts of vandalism against anti-abortion pregnancy centers:
In 2022, and for the first couple of months of 2023, DOJ has announced charges against 34 individuals for blocking access to or vandalizing abortion clinics. And there have been over 81 reported attacks on pregnancy centers [and] 130 attacks on Catholic churches since the leak of the Dobbs decision, and only two individuals have been charged. So how do you explain this disparity by reference to anything other than politicization …?
In response, Garland discussed not only the time of day but also — crucially — the nature of the crimes typically associated with each group to explain the disparity:
There are many more prosecutions with respect to the blocking of the abortion centers. But that is generally because those actions are taken with photography at the time during the daylight. Seeing the person who did it is quite easy.
Those who are attacking the pregnancy resources centers … are doing this at night. In the dark. We have put full resources on this. We have put rewards out for this. The Justice Department and the FBI have made outreach to Catholic and other organizations to ask for their help in identifying the people who are doing this.
We will prosecute every case against a pregnancy resource center that we can make. But, these people who are doing this are clever and are doing it in secret.
Garland is comparing not only the time of day of the crimes typically associated with each political group, but also an actual difference in the type of FACE Act violation typically committed by each side. In his questions, for example, Lee mentioned, "81 reported attacks on pregnancy centers." These incidents — 82 at the time of this reporting — appear on a website run by CatholicVote.org.
The vast majority of these incidents are vandalism-based and explicitly occurred, based on media coverage, during the evening. A large portion of them concern the same group, Jane's Revenge, which has tagged several anti-abortion pregnancy centers with graffiti. Vandalism is not typically a crime intended to be advertised or documented during its commission, and groups like Jane's Revenge are anonymous and loosely connected, according to the Department of Homeland Security.
In contrast, at least 32 of the 34 anti-abortion activists referenced by Lee as being indicted under the FACE Act were indicted for blocking employee or client access to the entrance of a clinic, not vandalism. This is a crime that necessarily occurs during a clinic's operating hours, and the 32 indictments Snopes identified involved people who live-streamed themselves and others committing the crimes for which they were indicted, often after advertising their planned actions on social media.
It is true that Garland discussed the fact that abortion-rights attacks on anti-abortion pregnancy centers occur at night, but that was not the totality of the argument being attributed to him. His statement was part of a broader comparison between the relative ease of prosecuting a case against someone who live-streamed themselves blocking a clinic (which most of the anti-abortion activists Lee cited were indicted for) than it is to prosecute anonymous vandals whose actions are done in secret.
As a result, we rate the video and claims derived from it as "Miscaptioned."