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- From: eck@panix.com (Mark Eckenwiler)
- Newsgroups: misc.legal,alt.politics.clinton,talk.abortion,alt.fan.rush-limbaugh,misc.answers,alt.answers,talk.answers,news.answers
- Subject: Freedom of Access to Clinic Entrances Act (FACE) FAQ
- Followup-To: poster
- Date: 18 Apr 1995 17:56:49 -0400
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- Lines: 1145
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- Summary: This article explains the Freedom of Access to Clinic Entrances
- Act of 1994 (FACE) and provides the full text of the Act along
- with current information on legal challenges.
- Xref: senator-bedfellow.mit.edu misc.legal:127597 alt.politics.clinton:160796 talk.abortion:228560 alt.fan.rush-limbaugh:225487 misc.answers:1806 alt.answers:8756 talk.answers:660 news.answers:42276
-
- Version: 1.3
- Archive-name: law/clinic-access
-
- 1. What is the Freedom of Access to Clinic Entrances Act (FACE)?
- 2. When was FACE enacted?
- 3. What kinds of activity does the statute prohibit?
- 4. What are the penalties for violating the law?
- 5. Doesn't FACE violate the First Amendment?
- 6. Isn't FACE so vague that it violates due process?
- 7. Isn't it illegal to single out one kind of business for protection?
- 8. Have the courts ruled on FACE's constitutionality?
-
- Appendix A1. Complete text of the original Act
- Appendix A2. Technical amendments of 9/94
- Appendix B. Complete text of the U.S. District Court decision in
- _Council for Life Coalition v. Reno_, No. 94-0843-IEG (CM)
- (S.D. Cal. July 6, 1994)
-
- The FACE FAQ is posted around the 10th day of each month. Comments or
- suggestions are welcome, and should be sent to eck@panix.com. A current
- version of the FAQ may always be obtained from <ftp://rtfm.mit.edu/pub/
- usenet/news.answers/law/clinic-access>. If you do not have ftp access,
- send a mail message to mail-server@rtfm.mit.edu with the line
- send usenet/news.answers/law/clinic-access
- in the body of the message.
-
- Copyright 1994, 1995 by Mark Eckenwiler, except as to Appendices A1,
- A2, and B (no claim to original U.S. government works). Permission is
- granted to redistribute this article in its entirety for noncommercial
- use provided that this copyright notice is not removed or altered. No
- portion of this work may be sold, either by itself or as part of a
- larger work, without the express written permission of the author;
- this restriction covers all publication media, including (but not
- limited to) CD-ROM.
-
- The author is an attorney admitted to practice in the State of
- New York and the Commonwealth of Massachusetts. Against his better
- judgment, he continues to live and work in New York City.
-
- This FAQ is provided for informational purposes only. The author has
- neither formed an attorney-client relationship with nor offered legal
- advice to the reader. For legal advice, consult individually with an
- attorney admitted to practice in your state.
-
-
- On the format of this FAQ:
- Topic entries in the outline are flagged with "**" at the left
- margin; to page through the topics one by one, search repeatedly for
- "**".
-
- ---------
-
- ** 1. What is the Freedom of Access to Clinic Entrances Act (FACE)?
-
- The Freedom of Access to Clinic Entrances Act -- often abbreviated as
- FACE or FACEA -- is a United States law protecting reproductive health
- service facilities and their staff and patients from violent threats,
- assault, vandalism, and blockade. Despite its name, FACE also provides
- the same protection to churches and other places of worship, and to their
- congregants as well.
-
-
- ** 2. When was FACE enacted?
-
- After a House-Senate conference committee resolved the differences
- between the preliminary versions of FACE passed in the two chambers, the
- House approved FACE on May 5, 1994 (Cong. Rec. H3116-3135). By a vote
- of 69-30, the Senate passed the measure one week later (5/12/94 Cong.
- Rec. S5595-5606). President Clinton signed the bill into law on May 26,
- 1994 (P.L. 103-259, 108 Stat. 694), and it took effect immediately.
-
- The 1994 federal crime bill (P.L. 103-322, enacted 9/13/94) made minor
- technical changes to FACE. See Appendix A2.
-
-
- ** 3. What kinds of activity does the statute prohibit?
-
- FACE makes it illegal to use force, the threat of force, or "physical
- obstruction" intentionally to
-
- a) "injure"
- b) "intimidate"
- c) "interfere with," or
- d) attempt to injure/intimidate/interfere with
-
- someone because that person is engaged in "obtaining or providing
- reproductive health services," as those terms are defined in the statute
- (see below).
-
- The same prohibition applies to these same acts committed against someone
- "lawfully exercising or seeking to exercise the First Amendment right of
- religious freedom at a place of religious worship."
-
- Finally, the law punishes anyone who intentionally damages or destroys a
- facility because it provides reproductive health services, or who
- "intentionally damages or destroys the property of a place of
- religious worship."
-
- To clarify the meaning of the law and protect against a challenge that
- the law is unconstitutionally vague, Congress included explicit
- definitions for several of the key terms used above:
-
- "The term 'interfere with' means to restrict a person's
- freedom of movement."
-
- "The term 'intimidate' means to place a person in reasonable
- apprehension of bodily harm to him- or herself or to another."
-
- "The term 'physical obstruction' means rendering impassable ingress to
- or egress from a facility that provides reproductive health services
- or to or from a place of religious worship, or rendering passage to or
- from such a facility or place of religious worship unreasonably
- difficult or hazardous."
-
- "The term 'reproductive health services' means reproductive health
- services provided in a hospital, clinic, physician's office, or other
- facility, and includes medical, surgical, counselling or referral
- services relating to the human reproductive system, including
- services relating to pregnancy or the termination of a pregnancy."
-
- [The full text of the Act, which created a new statute codified at 18
- U.S.C. sec. 248, is reproduced in Appendix A1 below. For information on
- how to locate and research federal law, see the Legal Research FAQ,
- posted monthly in news.answers, misc.legal, and other relevant
- newsgroups.]
-
- Note that the definition of "reproductive health services" covers
- numerous facilities besides abortion clinics. Specifically, the law's
- coverage of counselling/referral services "relating to pregnancy" makes
- clear that FACE also protects pro-life counselling centers from attack.
-
- Note also that FACE includes a "parental exemption" for activity
- directed solely at a minor by a parent or guardian. For example, FACE
- does not bar a parent from interfering with (or obstructing) a child's
- efforts to obtain an abortion, to obtain counselling concerning
- contraceptives, or to attend a particular place of worship. This
- exemption does not apply to conduct directed at anyone other than the
- minor (and therefore does not exempt threats directed at a clinic worker
- providing counselling to the minor); likewise, it does not immunize a
- parent/guardian from state laws that may limit such conduct.
-
-
- ** 4. What are the penalties for violating the law?
-
- FACE provides for both civil remedies and criminal penalties.
-
- The criminal penalties vary according to the severity of the offense and
- the defendant's prior record of FACE violations. Generally, a first-
- time offender cannot be sentenced to more than 1 year in prison and a
- $100,000 fine. For a second or subsequent violation after a prior FACE
- conviction, a defendant may be imprisoned for no more than 3 years and
- fined $250,000. _See_ 18 U.S.C. secs. 3559 & 3571 (setting forth
- applicable fines for different categories of federal offenses).
-
- However, more lenient limits apply in cases of exclusively nonviolent
- physical obstruction. A first-time "blockader" faces no more than 6
- months and a $10,000 fine; for subsequent violations, the maximum penalty
- is 18 months and $25,000.
-
- On the other hand, if the offense results in bodily injury, the maximum
- sentence increases to 10 years, regardless of whether it is a first
- offense. If death results from the offense, the maximum sentence is life
- imprisonment.
-
- Note that all of the above figures represent *maximum* sentences. (FACE
- imposes no mandatory minimum sentences.) Offenders are sentenced
- according to the separate United States Sentencing Guidelines, which
- require a sentencing calculation based on the severity of the offense and
- the defendant's prior convictions (whether for FACE violations or for
- other crimes). Except for career criminals with lengthy records, the
- Guidelines seldom impose a sentence near the statutory maximum. A first-
- time nonviolent FACE offender with little or no criminal past would
- normally be eligible for home detention, "supervised release"
- (probation), or other alternatives to full incarceration.
-
- Civil remedies:
-
- A person injured by a FACE violation may bring a civil suit against the
- offender. The statute allows a private plaintiff to obtain temporary,
- preliminary, or permanent injunctive relief, and compensatory and
- punitive damages, and fees for attorneys. In lieu of proving actual
- compensatory damages, a plaintiff may elect to recover $5,000 for each
- violation proven.
-
- The U.S. Attorney General (or any state attorney general) may also bring
- suit in federal court on behalf of third parties injured by FACE
- violations. In such actions, the court may award the injured parties the
- types of remedy listed above; moreover, the court may impose civil fines
- on defendants according to the following schedule:
-
- - first offense, nonviolent physical obstruction: $10,000
- - other first offenses: $15,000
- - subsequent offenses for nonviolent physical obstruction: $15,000
- - other subsequent offenses: $25,000
-
- Finally, note that FACE does not limit the availability of civil
- remedies or criminal penalties allowed under state law for the same
- conduct.
-
-
- ** 5. Doesn't FACE violate the First Amendment?
-
- No. FACE does not infringe the free speech rights of anti-abortion
- protesters. The law covers only unprotected conduct -- assault,
- trespass, and vandalism -- that is already the subject of criminal
- penalties in most states. Clinic protesters remain free to pray, sing
- hymns, carry signs, and distribute pro-life literature outside clinics.
-
- Note also that FACE does not discriminate on the basis of viewpoint.
- The law provides the same protection to pro-life counselling centers as
- to abortion clinics. Likewise, it applies to *anyone* who commits the
- prohibited acts, regardless of the actor's motives; a disgruntled ex-
- employee who firebombs a clinic or assaults clinic staff in revenge is
- chargeable under FACE.
-
- For information on relevant court rulings, see section 8 and Appendix B
- below.
-
-
- ** 6. Isn't FACE so vague that it violates due process?
-
- No. Under the Supreme Court's "vagueness" doctrine, a criminal law does
- not violate the notice requirement of the Constitution's Due Process
- guarantees if a person of ordinary intelligence can determine whether or
- not his conduct violates the statute. _Papachristou v. City of
- Jacksonville_, 405 U.S. 156, 162 (1972).
-
- The text of FACE satisfies this standard; it makes clear the meaning of
- such terms as "physical obstruction" and "intimidate" by providing
- specific definitions.
-
- For information on relevant court rulings, see section 8 and Appendix B
- below.
-
-
- ** 7. Isn't it illegal to single out one kind of business for
- protection?
-
- No. Congress (and state legislatures as well) have the power to address
- specific problems with narrowly tailored legislation. This includes the
- power to regulate (or offer protection to) an individual class of
- businesses.
-
- Thus, federal law explicitly makes it a felony to rob a bank or S&L (18
- U.S.C. sec. 2113), but imposes no corresponding penalty for robbing a
- convenience store or racetrack. Likewise, a 1992 federal law passed in
- response to animal-rights vandalism makes it a felony to damage the
- property of an "animal enterprise" (i.e., research laboratory, livestock
- operation, zoo, aquarium, circus, or rodeo). _See_ 18 U.S.C. sec. 43.
-
-
- ** 8. Have the courts ruled on FACE's constitutionality?
-
- As of mid-April 1995, eight different federal courts have ruled in
- response to broad-based constitutional challenges to FACE invoking (among
- other things) the First and Fifth Amendments. Seven courts -- six
- district courts and one circuit court (the Fourth Circuit) -- have
- rejected the challenges in their entirety and held that FACE is
- constitutional; a lone district court in Wisconsin held unconstitutional
- the Act's prohibition on nonviolent physical obstruction (not on First
- Amendment grounds, but on Congress's purported lack of authority to enact
- the legislation).
-
- Following is a list of the decisions to date; other cases are pending in
- various federal courts across the U.S.
-
- Upholding the statute:
- ======================
-
- _American Life League v. Reno_, No. 94-1869, United States Court of
- Appeals, Fourth Circuit, Feb. 13, 1995. (Judges Michael, Hall, &
- Chapman.) Reported at 47 F.3d 642 (1995).
-
- # _United States v. Brock_, No. 94-CR-86 (JPS), United States District
- Court, Eastern District of Wisconsin, September 23, 1994. (District
- Judge Stadtmueller, appointed in 1987 by President Reagan.)
-
- - _Reily v. Reno_, No. CIV-94-1058-PHX-RGS, United States District
- Court, District of Arizona, August 12, 1994. (District Judge
- Strand, appointed in 1985 by President Reagan.)
-
- _Cook v. Reno_, No. Civ. A. 94-0980, United States District Court,
- Western District of Louisiana, August 5, 1994. (District Judge
- Little, appointed in 1984 by President Reagan.)
-
- + _Cheffer v. Reno_, No. 94-0611-CIV-ORL-18, United States District
- Court, Middle District of Florida, July 26, 1994. (District Judge
- Sharp, appointed in 1983 by President Reagan.)
-
- _Council for Life Coalition v. Reno_, No. 94-0843-IEG (CM), United
- States District Court, Southern District of California, July 6, 1994
- (reported at 856 F. Supp. 1422). (District Judge Gonzalez,
- appointed in 1992 by President Bush.) [attached as Appendix B below]
-
- ! _American Life League v. United States_, No. CIV. A. 94-700-A, United
- States District Court, Eastern District of Virginia, June 16, 1994
- (reported at 855 F. Supp. 137). (District Judge Brinkema, appointed
- in 1993 by President Clinton; formerly a U.S. Magistrate Judge
- appointed under President Reagan, 1985-1993.)
-
-
- Invalidating the statute in part:
- =================================
-
- # _United States v. Wilson_, No. 94-CR-140, United States District Court,
- Eastern District of Wisconsin, March 16, 1995. (District Judge Randa.)
-
- + Indicates that appeal of this decision has been filed
- - Indicates that appeal has lapsed
- ! Indicates decision affirmed on appeal
- # Indicates conflict with another decision in the same court
-
-
- Despite what you may have heard, the Supreme Court has not yet ruled
- on FACE's constitutionality. In the _Madsen_ case handed down in June
- 1994 -- a case involving various "buffer zones" imposed at a Florida
- abortion clinic -- the Supreme Court considered only the
- constitutionality of a special injunction (i.e., court order) requiring
- protesters to refrain from certain activities within a 300-foot perimeter
- (and to remain entirely outside a 36-foot zone around the clinic). That
- injunction was not issued under FACE. _Madsen v. Women's Health Ctr._,
- 114 S. Ct. 2516 (June 30, 1994).
-
- In _Madsen_, the Supreme Court upheld (by a 6-3 vote) the 36- foot
- exclusion zone, which had been imposed by a lower court only after a
- narrower injunction was repeatedly violated by protesters. The Court
- also upheld an "excessive noise" prohibition. At the same time,
- however, the Court struck down a 300-foot zone in which protesters were
- barred from approaching staff or patients without their consent; a ban
- on signs or images visible from the clinic was also invalidated. Chief
- Justice Rehnquist wrote for the majority, joined by Justices Blackmun,
- O'Connor, Stevens, Souter, and Ginsburg; Justices Scalia, Kennedy, and
- Thomas dissented.
-
- While it does not address FACE directly, _Madsen_ reaches several legal
- conclusions that strongly suggest FACE will ultimately survive review in
- the Supreme Court. Most importantly, the majority opinion expressly
- rejected the argument that the Florida injunction violated the First
- Amendment by discriminating against a particular viewpoint. _See_ 114
- S. Ct. at 2523-24.
-
- The only negative effect _Madsen_ has on FACE is to define the limits of
- injunctions that judges may constitutionally impose when they grant
- relief to civil plaintiffs under FACE (or any other statute authorizing
- injunctive relief). While FACE itself does not automatically create
- buffer zones around clinics -- contrary to the false claims made by some
- Usenetters -- its provisions for granting injunctive relief undoubtedly
- permit judges to order such exclusion zones under appropriate
- circumstances.
-
- To obtain a copy of the _Madsen_ decision from Cornell's mail server,
- send email to liideliver@fatty.law.cornell.edu with the following line in
- the body of the message:
-
- request 93-880
-
-
- ** Appendix A1. Complete text of the original Act
-
- PL 103-259, May 26, 1994, 108 Stat 694
- FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994
-
- An Act to amend title 18, United States Code, to assure freedom of
- access to reproductive services.
-
- Be it enacted by the Senate and House of Representatives of the United
- States of America in Congress assembled,
-
- SECTION 1. SHORT TITLE.
-
- This Act may be cited as the "Freedom of Access to Clinic Entrances
- Act of 1994".
-
- SEC. 2. PURPOSE.
-
- Pursuant to the affirmative power of Congress to enact this
- legislation under section 8 of article I of the Constitution, as well as
- under section 5 of the fourteenth amendment to the Constitution, it is
- the purpose of this Act to protect and promote the public safety and
- health and activities affecting interstate commerce by establishing
- Federal criminal penalties and civil remedies for certain violent,
- threatening, obstructive and destructive conduct that is intended to
- injure, intimidate or interfere with persons seeking to obtain or provide
- reproductive health services.
-
-
- SEC. 3. FREEDOM OF ACCESS TO CLINIC ENTRANCES.
-
- Chapter 13 of title 18, United States Code, is amended by adding at
- the end thereof the following new section:
-
- "sec. 248 Freedom of Access to CLINIC ENTRANCES.
-
- "(a) PROHIBITED ACTIVITIES.--Whoever--
-
- "(1) by force or threat of force or by physical obstruction,
- intentionally injures, intimidates or interferes with or attempts to
- injure, intimidate or interfere with any person because that person is
- or has been, or in order to intimidate such person or any other person
- or any class of persons from, obtaining or providing reproductive
- health services;
- "(2) by force or threat of force or by physical obstruction,
- intentionally injures, intimidates or interferes with or attempts to
- injure, intimidate or interfere with any person lawfully exercising or
- seeking to exercise the First Amendment right of religious freedom at a
- place of religious worship; or
- "(3) intentionally damages or destroys the property of a facility, or
- attempts to do so, because such facility provides reproductive health
- services, or intentionally damages or destroys the property of a place
- of religious worship,
-
- shall be subject to the penalties provided in subsection (b) and the
- civil remedies provided in subsection (c), except that a parent or legal
- guardian of a minor shall not be subject to any penalties or civil
- remedies under this section for such activities insofar as they are
- directed exclusively at that minor.
-
- "(b) PENALTIES.--Whoever violates this section shall--
-
- "(1) in the case of a first offense, be fined in accordance with this
- title, or imprisoned not more than one year, or both; and
- "(2) in the case of a second or subsequent offense after a prior
- conviction under this section, be fined in accordance with this title,
- or imprisoned not more than 3 years, or both;
-
- except that for an offense involving exclusively a nonviolent physical
- obstruction, the fine shall be not more than $10,000 and the length of
- imprisonment shall be not more than six months, or both, for the first
- offense; and the fine shall be not more than $25,000 and the length of
- imprisonment shall be not more than 18 months, or both, for a subsequent
- offense; and except that if bodily injury results, the length of
- imprisonment shall be not more than 10 years, and if death results, it
- shall be for any term of years or for life.
-
- "(c) CIVIL REMEDIES.--
-
- "(1) RIGHT OF ACTION.--
-
- "(A) IN GENERAL.--Any person aggrieved by reason of the conduct
- prohibited by subsection (a) may commence a civil action for the
- relief set forth in subparagraph (B), except that such an action may
- be brought under subsection (a)(1) only by a person involved in
- providing or seeking to provide, or obtaining or seeking to obtain,
- services in a facility that provides reproductive health services, and
- such an action may be brought under subsection (a)(2) only by a person
- lawfully exercising or seeking to exercise the First Amendment right
- of religious freedom at a place of religious worship or by the entity
- that owns or operates such place of religious worship.
-
- "(B) RELIEF.--In any action under subparagraph (A), the court may
- award appropriate relief, including temporary, preliminary or
- permanent injunctive relief and compensatory and punitive damages, as
- well as the costs of suit and reasonable fees for attorneys and expert
- witnesses. With respect to compensatory damages, the plaintiff may
- elect, at any time prior to the rendering of final judgment, to
- recover, in lieu of actual damages, an award of statutory damages in
- the amount of $5,000 per violation.
-
- "(2) ACTION BY ATTORNEY GENERAL OF THE UNITED STATES.--
-
- "(A) IN GENERAL.--If the Attorney General of the United States has
- reasonable cause to believe that any person or group of persons is
- being, has been, or may be injured by conduct constituting a violation
- of this section, the Attorney General may commence a civil action in
- any appropriate United States District Court.
- "(B) RELIEF.--In any action under subparagraph (A), the court may
- award appropriate relief, including temporary, preliminary or
- permanent injunctive relief, and compensatory damages to persons
- aggrieved as described in paragraph (1)(B). The court, to vindicate
- the public interest, may also assess a civil penalty against each
- respondent--
- "(i) in an amount not exceeding $10,000 for a nonviolent physical
- obstruction and $15,000 for other first violations; and
- "(ii) in an amount not exceeding $15,000 for a nonviolent physical
- obstruction and $25,000 for any other subsequent violation.
-
- "(3) ACTIONS BY STATE ATTORNEYS GENERAL.--
-
- "(A) IN GENERAL.--If the Attorney General of a State has reasonable
- cause to believe that any person or group of persons is being, has
- been, or may be injured by conduct constituting a violation of this
- section, such Attorney General may commence a civil action in the name
- of such State, as parens patriae on behalf of natural persons residing
- in such State, in any appropriate United States District Court.
- "(B) RELIEF.--In any action under subparagraph (A), the court may
- award appropriate relief, including temporary, preliminary or
- permanent injunctive relief, compensatory damages, and civil penalties
- as described in paragraph (2)(B).
-
- "(d) RULES OF CONSTRUCTION.--Nothing in this section shall be
- construed--
-
- "(1) to prohibit any expressive conduct (including peaceful picketing
- or other peaceful demonstration) protected from legal prohibition by
- the First Amendment to the Constitution;
- "(2) to create new remedies for interference with activities protected
- by the free speech or free exercise clauses of the First Amendment to
- the Constitution, occurring outside a facility, regardless of the point
- of view expressed, or to limit any existing legal remedies for such
- interference;
- "(3) to provide exclusive criminal penalties or civil remedies with
- respect to the conduct prohibited by this section, or to preempt State
- or local laws that may provide such penalties or remedies; or
- "(4) to interfere with the enforcement of State or local laws
- regulating the performance of abortions or other reproductive health
- services.
-
- "(e) DEFINITIONS.--As used in this section:
-
- "(1) FACILITY.--The term 'facility' includes a hospital, clinic,
- physician's office, or other facility that provides reproductive health
- services, and includes the building or structure in which the facility
- is located.
- "(2) INTERFERE WITH.--The term 'interfere with' means to restrict a
- person's freedom of movement.
- "(3) INTIMIDATE.--The term 'intimidate' means to place a person in
- reasonable apprehension of bodily harm to him- or herself or to
- another.
- "(4) PHYSICAL OBSTRUCTION.--The term 'physical obstruction' means
- rendering impassable ingress to or egress from a facility that provides
- reproductive health services or to or from a place of religious
- worship, or rendering passage to or from such a facility or place of
- religious worship unreasonably difficult or hazardous.
- "(5) REPRODUCTIVE HEALTH SERVICES.--The term 'reproductive health
- services' means reproductive health services provided in a hospital,
- clinic, physician's office, or other facility, and includes medical,
- surgical, counselling or referral services relating to the human
- reproductive system, including services relating to pregnancy or the
- termination of a pregnancy.
- "(6) STATE.--The term 'State' includes a State of the United States,
- the District of Columbia, and any commonwealth, territory, or
- possession of the United States.".
-
-
- SEC. 4. CLERICAL AMENDMENT.
-
- The table of sections at the beginning of chapter 13 of title 18,
- United States Code, is amended by adding at the end the following new
- item:
-
- "248. Blocking access to reproductive health services.".
-
-
- SEC. 5. SEVERABILITY.
-
- If any provision of this Act, an amendment made by this Act, or the
- application of such provision or amendment to any person or circumstance
- is held to be unconstitutional, the remainder of this Act, the amendments
- made by this Act, and the application of the provisions of such to any
- other person or circumstance shall not be affected thereby.
-
-
- SEC. 6. EFFECTIVE DATE.
-
- This Act takes effect on the date of the enactment of this Act, and
- shall apply only with respect to conduct occurring on or after such date.
-
- Approved May 26, 1994.
-
-
- ** Appendix A2. Technical amendments of 9/94
-
- [From P.L. 103-322:]
-
- Section 330023. TECHNICAL CORRECTION RELATING TO SECTION 248
- OF TITLE 18, UNITED STATES CODE
-
- (a) IN GENERAL.--Chapter 13 of title 18, United States Code, is
- amended--
- (1) in the chapter analysis so that the item relating to
- section 248 reads as follows:
-
- "248. Freedom of access to clinic entrances.";
-
- (2) so that the heading of section 248 reads as follows:
-
- "$ 248. Freedom of access to clinic entrances"; and
-
- (3) in section 248(b) by inserting ", notwithstanding
- section 3571," before "be not more than $25,000".
-
- (b) EFFECTIVE DATE.--The amendments made by this subsection (a)
- shall take effet on the date of enactment of the Freedom of
- Access to Clinic Entrances Act of 1994.
-
- [Comment:
- Parts (a)(1) and (2) merely revise the headings, and do not change the
- statute itself. Part (a)(3) reinforces the $25,000 limit on fines for
- repeat non-violent offenses. The section referred to, section 3571(a)
- of title 18, allows a maximum fine of $250,000 for certain federal
- felonies; under section 3571(e), individual laws may prescribe lower
- maximum penalties only if they expressly state that section 3571(a) does
- not apply. The revision in (a)(3) above corrects this omission from the
- original FACE legislation, and makes the change applicable
- retroactively, assuring that non-violent FACE offenders will not be
- fined more than $25,000 for any single offense.
- -M. Eckenwiler]
-
-
-
- ** Appendix B. Complete text of the U.S. District Court decision in
- _Council for Life Coalition v. Reno_, No. 94-0843-IEG
- (CM) (S.D. Cal. July 6, 1994)
-
-
- Council for Life Coalition, Jim Harnsberger, Kathy Harnsberger, Jim
- Baxter, Sammy Wilson, Eric Camillo, and Barbara Blackledge,
- Plaintiffs,
- v.
- Hon. Janet Reno, Attorney General of the United States of America,
- Defendant.
-
- No. 94-0843-IEG (CM).
- United States District Court,
- S.D. California.
- July 6, 1994.
-
- The following motions came on regularly for hearing on June 29,
- 1994, at 2:00 p.m., in Courtroom 11 of the above-entitled Court, the
- Honorable Irma E. Gonzalez presiding: 1) Defendant's Motion to
- Dismiss; 2) Plaintiffs' Motion for a Preliminary Injunction; 3)
- Proposed Intervenors' Motion to Intervene; and 4) Proposed Amici
- Curiae's Motion for Leave to file a Brief Amici Curiae in support of
- defendant's motion to dismiss.
-
- At the hearing on the foregoing motions, there being no opposition
- and for good cause shown, the Court GRANTED the Proposed Intervenors'
- motion to intervene as defendants in this action pursuant to Rule
- 24(a)(2) of the Federal Rules of Civil Procedure. The Court also
- GRANTED the Proposed Amici Curiae's motion for leave to file a brief
- amici curiae in support of defendant's motion to dismiss. The
- following order thus addresses the defendant's motion to dismiss and
- the plaintiffs' motion for a preliminary injunction.
-
- I.
-
- This is an action for declaratory and injunctive relief seeking to
- enjoin the enforcement of The Freedom of Access to Clinic Entrances
- Act of 1994, 18 U.S.C. sec. 248 ("FACE") that President Clinton signed
- into law on May 26, 1994. The critical portion of FACE at issue here
- provides that whoever "by force or threat of force or by physical
- obstruction, intentionally injures, intimidates or interferes with or
- attempts to injure, intimidate or interfere with any person because
- that person is or has been, or in order to intimidate such person or
- any other person or any class of persons from, obtaining or providing
- reproductive health services" shall be subject to certain criminal
- penalties and civil remedies. (FACE, sec. 3).
-
- FACE specifically defines several of its key terms. (Id.). The term
- "interfere with" means "to restrict a person's freedom of movement"
- (Id.). The term "intimidate" means "to place a person in reasonable
- apprehension of bodily harm to him-or herself or to another" (Id.).
- The term "physical obstruction" means "rendering impassable ingress to
- or egress from a facility that provides reproductive health services
- ... or rendering passage to or from such a facility ... unreasonably
- difficult or hazardous" (Id.). The term "reproductive health
- services" means "reproductive health services provided in a hospital,
- clinic, physician's office, or other facility, and includes medical,
- surgical, counselling or referral services relating to the human
- reproductive system, including services relating to pregnancy or the
- termination of a pregnancy" (Id.).
-
- The stated purpose of FACE is to "protect and promote the public
- safety and health and activities affecting interstate commerce by
- establishing Federal criminal penalties and civil remedies for certain
- violent, threatening, obstructive and destructive conduct that is
- intended to injure, intimidate or interfere with persons seeking to
- obtain or provide reproductive health services." (FACE, sec. 2). In
- enacting FACE, which is enforceable criminally and civilly by the
- Attorney General, and civilly by State attorneys general and
- individuals who are victimized by the prohibited conduct, Congress
- compiled and responded to a substantial legislative record of the use
- of violence, threats of violence, mass blockades, invasions of
- abortion clinics, and destruction of' medical facilities by bombings,
- arson, and acid and gas attacks. See, e.g., S.Rep. No. 117, 103d
- Cong., 1st Sess. 3 (1993) ("Senate Report"). Congress determined that
- existing laws were inadequate to stop this violence, and that federal
- legislation was necessary and appropriate.
-
- Plaintiff Council for Life Coalition is an unincorporated California
- association whose members are opposed to abortion on theological,
- moral and other grounds. Individual plaintiffs Jim Harnsberger, Kathy
- Harnsberger, Jim Baxter, Sammy Wilson, Eric Camillo and Barbara
- Blackledge (collectively the "individual plaintiffs") are all citizens
- of the United States residing in San Diego County who are opposed to
- abortion on theological, moral and other grounds. The individual
- plaintiffs allege that they have peaceably demonstrated, prayed,
- distributed materials and "sidewalk counseled" in the proximity of
- abortion clinics.
-
- Plaintiffs seek a preliminary injunction against the enforcement of
- FACE on a variety of constitutional and statutory grounds. Defendant
- Janet Reno, Attorney General of the United States of America opposes
- plaintiffs' application for a preliminary injunction and moves to
- dismiss this action pursuant to Rules 12(b)(1) and 12(b)(6) of the
- Federal Rules of Civil Procedure. In the motion to dismiss, defendant
- argues that this action is non-justiciable and that, in any case,
- plaintiffs have failed to state a claim upon which relief can be
- granted.
-
- At the hearing on these motions, defendant conceded that, in light
- of the first amended complaint and accompanying supplemental
- declarations of the individual plaintiffs filed after the motion to
- dismiss, [1] there no longer is an issue regarding the
- justiciability of this action. Accordingly, the Court addresses
- defendant's alternative argument that plaintiffs have failed to state
- a claim upon which relief can be granted.
-
- [1] In their supplemental declarations, the individual plaintiffs state
- that they:
- wish and intend to engage in the activities prohibited by Section 248(a)(1)
- of FACE, which include, but are not limited to, shouting and/or gesturing,
- and communicating (either orally and/or with signs and/or by my demeanor
- and/or expression) threats of force in order to intimidate or interfere
- with individuals who have or are about to obtain or provide reproductive
- health services; standing and/or marching in single file on public
- sidewalks that are in front of entrances to facilities that provide
- reproductive health services; and demonstrating, praying, distributing
- materials, carrying signs, sidewalk counseling, and exercising my rights to
- freedom of speech and exercise of religion.
- See, e.g., Supplemental Declaration of Jim Harnsberger Dated June 22, 1994
- at P 2 (emphasis added).
- In addition, according to the supplemental declaration of Sammy Wilson, the
- San Diego County Sheriff's department has indicated that if he continues
- with his "abortion protest activities" and if he "stood or marched on the
- public sidewalk" in front of a local abortion clinic with a "sign
- protesting" he would be arrested under FACE after first being warned to
- cease and desist.
- See Supplemental Declaration of Jim Harnsberger Dated June 22, 1994 at P 4.
-
-
- II. Plaintiffs seek to enjoin the enforcement of FACE on the ground
- that it abridges freedom of expression and association protected by
- the first amendment, violates the establishment clause and the free
- exercise clause of the first amendment, violates the Religious Freedom
- Restoration Act of 1993, and that Congress had no authority to pass
- FACE either pursuant to Section 5 of the fourteenth amendment or the
- Commerce Clause. The Court first addresses plaintiffs' core claim
- that FACE abridges freedom of expression.
-
- A. Freedom of Expression
-
- The fundamental flaw underlying plaintiffs, arguments that FACE
- violates the free exercise clause of the first amendment is their
- assertion that FACE applies to protected expression. In fact, by its
- terms, FACE proscribes only conduct--"force," -the "threat of force,"
- and "physical obstruction," which is used intentionally to injure,
- intimidate, or interfere with persons because they seek to obtain or
- provide reproductive health services. The Court rejects as
- insupportable any suggestion that shootings, arson, death threats,
- vandalism, or other violent and destructive acts addressed by FACE are
- protected by the first amendment merely because those engaged in such
- conduct " 'intend[ ] thereby 'to express an idea.' " Wisconsin
- v. Mitchell, 113 S.Ct. 2194, 21913 (1993) (quoting United States
- v. O'Brien, 391 U.S. 367, 376 (1968.)). "[V]iolence or other types of
- potentially expressive activities that produce special harms distinct
- from their communicative impact ... are entitled to no constitutional
- protection." Roberts v. United States Jaycees, 468 U.S. 609, 628
- (1984); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916
- (1982). Thus, like the statute that was upheld on first amendment
- grounds in Wisconsin v. Mitchell, FACE is aimed at conduct, not
- expression.
-
- Plaintiffs attempt to argue that FACE penalizes "anyone who
- 'injures' anyone involved in the abortion process," and that because
- their demonstrations, prayers, distribution of materials, and
- sidewalk-counselling may inflict emotional. and psychological
- "injuries," these activities are proscribed by FACE. (Memorandum of
- Points and Authorities in Support of Plaintiff's Application for
- Preliminary Injunction at pp. 8-11) ("P. Brief"). However,
- plaintiffs misread the statute. FACE does not apply to "anyone who
- 'injures' anyone involved in the abortion process." Instead, FACE
- criminalizes the use of "force" the "threat of force" and "physical
- obstruction" which are acts that are outside the scope of the first
- amendment's protections. Thus, those peaceable activities engaged in
- by plaintiffs that are not accompanied by the use of force, the threat
- of force, or physical obstruction, are not proscribed by FACE.
-
- Plaintiffs further contend that FACE imposes content-based and
- viewpoint-based restrictions on protected expression because it
- applies only to conduct intended to injure, intimidate, or interfere
- with a person who seeks to obtain or provide reproductive health
- services, and not to conduct intended to injure, intimidate, or
- interfere with a person for any other reason. They argue that FACE
- is unconstitutional because it singles out for special punishment acts
- committed in the course of anti-abortion protests.
-
- However, nothing in the plain words of the statute supports
- plaintiffs' arguments here. FACE applies to "[w]hoever" engages in
- the prohibited conduct, with the requisite intent to injure,
- intimidate or interfere with "any person" who is entering a facility
- to obtain reproductive health services or providing such services.
- Moreover, the broad statutory definition of "reproductive health
- services" to include "counselling or referral services relating to the
- human reproductive system" encompasses more than just abortion
- clinics. Thus, although the statute is subject-specific, it is
- viewpoint neutral.
-
- The fact that FACE singles out for punishment violence at
- reproductive health facilities or against those who provide and obtain
- abortion services does not render the statute discriminatory on the
- basis of content. The key inquiry in determining whether a statute is
- content-neutral is "whether the government has adopted a regulation of
- speech 'without reference to the content of the regulated speech.' "
- Madsen v. Women's Health Center, Inc., 94 Daily Journal D.A.R. 9272,
- 9276 (U.S. Sup.Ct. June 30, 1994) (quoting Ward v. Rock Against
- Racism, 491 U.S. 781, 791 (1989)). In making this determination, the
- threshold consideration is the government's purpose in enacting the
- legislation. Id.
-
- Here, it is evident from the legislative record that the decision of
- Congress to prohibit violent conduct at abortion facilities or against
- those who provide and seek abortion services reflects Congress'
- concern over the severe impact of that violence, rather than a desire
- to curb any anti-abortion message some people wish to convey. Thus,
- as the Supreme Court held in Wisconsin v. Mitchell, the State's
- desire to redress particular harms "provides an adequate explanation
- for the particular statute over and above mere disagreement with the
- offenders' beliefs or biases." 1l3 S.Ct. at 2201.
-
- In addition, FACE's intent element does not restrictany type of
- message and, like the motive element under the Wisconsin statute
- upheld by the U.S. Supreme Court in Wisconsin v. Mitchell, it "plays
- the same role under (FACE) as it does under federal and state
- antidiscrimination laws, which [the Supreme Court has] previously
- upheld against constitutional challenge." 113 S.Ct. at 2200. E.g.,
- Roberts v. United States Jaycees, 468 U.S. at 628.
-
- Much of plaintiffs' first amendment challenge to FACE is directed
- toward FACE's prohibition against the "threat of force" to intimidate
- or interfere with access to reproductive health services. How,ever,
- in this regard, the Court notes that FACE is similar to numerous
- criminal statutes that prohibit intimidating or interfering with a
- person engaged in an activity of some federal interest. E.g., 18
- U.S.C. 5 112(b) (making it unlawful to "intimidate[ ], coerce[ ],
- threaten[ ], or harass[ ] a foreign official ... in the performance of
- his duties"); 18 U.S.C. sec. 245(b) (providing that one who "by force or
- threat of force willfully injuries, intimidates or interferes with, or
- attempts to injure, intimidate or interfere with--any person because
- he is or has been, or in order to intimidate such person or any other
- person or any class of persons from [exercising certain designated
- rights]" violates the law); 18 U.S.C. sec. 372 (making it unlawful to
- "conspire to prevent, by force, intimidation, or threat, any person
- from accepting or holding any office"); 18 U.S.C. 871(a)
- (criminalizing threats of violence made against the President or Vice
- President); 26 U.S.C. sec. 7212(a) (prohibiting attempts to interfere
- with internal revenue laws by one who "corruptly or by force or
- threats of force (including any threatening letter or communication)"
- endeavors to, intimidate or impede any officer or employee of the
- United States, acting in an official capacity).
-
- Despite the ancillary impact that these statutes may have on a
- defendant's speech or expressive conduct, courts have consistently
- upheld such statutes against first amendment challenge. E.g., Watts
- v, United States, 394 U.S. 705, 707-08 (1969) (finding 18
- U.S.C. 871(a) constitutional on its face and distinguishing "a threat
- ... from what is constitutionally protected speech").
-
- As the Supreme Court held in R.A.V. v. St. Paul, 112 S.Ct. 2538
- (1992), such laws do not violate the first amendment, even though a
- defendant may be expressing a message while engaged in the proscribed
- conduct, because the "government [has] not target[ed] conduct on the
- basis of its expressive content." at 2546-47. Persons who interfere
- with access to reproductive health services "are not shielded from
- regulation merely because they express a[n] ... idea or philosophy."
- at 2547. Similarly, as the Ninth Circuit observed in United States
- v. Gilbert, 813 P.2d 1523 (9th Cir.), cert. denied, 484 U.S. 860
- (1987):
-
- If conduct contains both speech and non-speech elements, and if
- Congress has the authority to regulate the non-speech conduct,
- incidental restrictions on freedom of speech are not constitutionally
- invalid.
-
- 813 F.2d at 1529.
-
- Plaintiffs rely heavily on R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992)
- which invalidated a city ordinance that explicitly barred any
- "symbol," "appellation," or "graffiti," that expressed hostility based
- on race, color, creed, or gender. However, as the U.S. Supreme Court
- observed in Wisconsin, there is a distinction between invalid laws
- explicitly directed at protected expression, such as the city
- ordinance reviewed in R.A.V., and valid laws aimed at unprotected
- conduct as is the case here. Thus, the Court held, "whereas the
- ordinance struck down in R.A.V. was explicitly directed at expression
- (i.e., 'speech' or 'messages') [the Wisconsin statute] is aimed at
- conduct unprotected by the First Amendment." 113 S.Ct. at 2201
- (citations omitted).
-
- Plaintiffs further argue that FACE is overbroad because it reaches
- peaceable and constitutionally-protected activities in which they
- engage to dissuade women from having abortions. Plaintiffs contend
- that such activities conceivably might cause psychological injury to
- these women, and therefore be proscribed under FACE. Plaintiffs
- further allege that FACE is unconstitutionally "vague" and fails to
- give them fair notice of whether it prohibits the conduct they
- contemplate.
-
- In a facial challenge such as here, a law is deemed "overbroad" only
- where it reaches, a " 'substantial amount of constitutionally
- protected conduct.' " Houston v. Hill, 482 U.S. 451, 458 (1987)
- (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
- U.S. 489, 494 (1982)). This requires the court to find either that "
- 'every, application of the statute create[s] an impermissible risk of
- suppression of ideas' " or " 'a realistic danger that the statute
- itself will significantly compromise recognized First Amendment
- protections of parties not before the court.' " New York State Club
- Association v. New York, 487 U.S. 1, 11 (1988) (quoting City Council
- of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 801
- (1984)). Plaintiffs thus must demonstrate from the text of FACE and
- from actual fact that a substantial number of instances exist in which
- FACE cannot be applied constitutionally. Id., 487 U.S. at 14. Absent
- such a showing, whatever overbreadth may exist can be cured through
- case-by-case analysis of the fact situations to which FACE's
- prohibitions may not be applied. Id.
-
- Plaintiffs contend that a "plausible reading" of several FACE
- provisions "is that they may be violated by the very things pro-life
- protesters and counsellors try to do every day on the streets and
- sidewalks outside clinics," and that these provisions have an
- "impermissible, chilling effect" upon the exercise of first amendment
- rights. (P. Brief at pp. 19-20).
-
- Here, the Court concludes that plaintiffs have failed to carry their
- burden of demonstrating that FACE reaches a substantial amount of
- protected conduct. FACE does not apply to a substantial amount of
- protected conduct in that by its terms, it is directed at unprotected
- conduct, and not speech, and plaintiffs have failed to cite sufficient
- factual scenarios which convince the Court that FACE could potentially
- reach protected conduct. Where, as here, "conduct and not merely
- speech is involved ... the overbreadth ... must not only be real, but
- substantial as well, judged in relation to the statute's plainly
- legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
- E.g., Cameron v. Johnson, 390 U.S. 611, 617 (1968) (rejecting similar
- overbreadth challenge to statute that like FACE, prohibits obstruction
- of access to specified facilities).
-
- The Court also finds that FACE is not unconstitutionally vague. In
- order to be unconstitutionally vague, the statute must be
- "impermissibly vague in all of its applications." Hoffman Estates
- v. Flipside, Hoffman Estates, 455 U.S. at. 499. A statute is
- unconstitutionally vague only if people " 'of common intelligence must
- necessarily guess at its meaning.' " Hynes v. Oradell, 425 U.S. 610,
- 620 (1976) (quoting Connally v. General Construction Co., 269
- U.S. 385, 391 (1926)).
-
- Here, not only does FACE include specific definitions for such key
- terms as "intimidate," "interfere," and "physical obstruction," most
- of the operative words come from other statutes which the U.S. Supreme
- Court and other courts have construed and found not unconstitutionally
- vague. Thus, for example, in Cameron v. Johnson, the Court held that
- a state statute prohibiting "picketing or mass demonstrations in such
- a manner as to obstruct or unreasonably interfere with free ingress or
- egress" was not unconstitutionally vague. 390 U.S. at 612 n. 1, 616;
- see also Grayned v. Rockford, 408 U.S. 104 (1972).
-
- Similarly, in United States v. Gilbert, the Ninth Circuit held that
- the Federal Fair Housing Act's prohibition against the use of "force
- or threat of force" to injure, intimidate or interfere with anyone who
- is lawfully aiding or encouraging others in "occupying ... any
- dwelling" was not unconstitutionally vague. 813 F,.2d at 1530.
- Indeed, the Ninth Circuit observed even more broadly that "legislation
- which proscribes the use of force or the threat of force should not be
- found to be void for vagueness." Id.
-
- Finally, plaintiffs contend that FACE's provision allowing the
- recovery in a civil action against violators of $5,000 in statutory
- damages is unconstitutional under NAACP v. Claiborne Hardware Co., 458
- U.S. 886 (1982), because the damages may be assessed against protected
- conduct. However, not only has the Court determined that FACE does
- not apply to protected conduct, plaintiffs' argument here also fails
- because it is wholly speculative and is more properly raised in the
- context of an actual dispute in which a plaintiff attempts to invoke
- this provision in connection with particular conduct. [2]
-
- [2]. The Court also rejects plaintiffs' claim that FACE impermissibly
- infringes their freedom of association guaranteed by the first amendment.
- FACE does not prohibit plaintiffs from associating with others or from
- joining with them to express a particular viewpoint. As the U.S. Supreme
- Court recently observed, "the First Amendment does not extend to joining
- with others for the purpose of depriving third parties of their lawful
- rights." Madsen, 94 Daily Journal D.A.R. at 9280.
-
-
-
- B. Free Exercise Clause and Religious Freedom Restoration Act
-
- Plaintiffs argue that FACE violates their rights under the free
- exercise clause of the first amendment and the Religious Freedom
- Restoration Act, 42 U.S.C. sec. 2000bb, et seq.
-
- A law that is neutral toward religion and is generally applicable
- does not offend the free exercise clause, even if it has an incidental
- effect on religious practice. See Church of the Lukumi Babalu Aye,
- Inc. v. Hialeah, 113 S.Ct. 2217, 2226 (1993). The Court finds that
- plaintiffs' strained attempts to cast FACE as a law that is not
- neutral towards religion are unavailing. Not only does the text of
- FACE itself refute any such suggestion, there is nothing in FACE's
- legislative history that supports the conclusion that Congress enacted
- the statute for an impermissible religious purpose. The statute
- prohibits certain conduct regardless of whether religious conviction
- motivated the actor, and it neither favors certain religions over
- others nor favors no religion over religion.
-
- The Religious Freedom Restoration Act provides in pertinent part:
-
- Government may substanially burden a person's exercise of religion
- only if it demonstrates that application of the burden to the person
- 1) is in furtherance of a compelling governmental interest and 2) is
- the least restrictive means of furthering that compelling governmental
- interest.
-
- As a threshold matter as discussed above, plaintiffs have failed to
- demonstrate that FACE substantially burdens any person's exercise of
- religion. plaintiffs do not seriously argue that their exercise of
- religion entails the use of force or threats of force. Instead, they
- are primarily concerned that they will be prevented from engaging in
- peaceful religious activities, such as prayer and attempts to dissuade
- individuals, on religious grounds, from seeking abortions. It appears
- that plaintiffs believe that these activities will be substantially
- burdened by the prohibition of physical obstruction. However,
- plaintiffs do not contend that it is part of their exercise of
- religion to make ingress to or egress from a facility impossible,
- unreasonably difficult, or hazardous, which is what is prohibited by
- the statute.
-
- Even assuming that FACE substantially burdened plaintiffs' exercise
- of religion, application of that burden is in furtherance of a
- compelling governmental interest and is the least restrictive means of
- furthering that compelling interest. Congress unquestionably has a
- compelling interest in prohibiting the use of force and threats of
- force and physical obstruction of facilities providing reproductive
- health services. As plaintiffs admit, such conduct is already
- unlawful under state and local laws. in addition, the evidence before
- Congress established that such obstruction has seriously impeded the
- access of women to important health services, including the
- constitutionally protected right to have an abortion. Congress found
- that physical obstruction hag imposed serious medical risks on women
- and has an effect on interstate commerce.
-
- Moreover, FACE is a carefully drawn statute that addresses the
- precise interest that Congress identified and nothing more. it
- addresses a narrow and carefully proscribed set of actions that
- contribute directly to the compelling problems for which it sought to
- provide a remedy. Its prohibitions are limited to the use of force,
- threats of force, and physical obstruction. It requires that
- violators act with an intent to injure, intimidate, or interfere with
- a person. And the statute is limited to those persons who engage in
- such conduct because someone sought or provided reproductive health
- services. Finally, Congress provided definitions for certain key
- terms that focus the statute on the specific problems that it was
- addressing.
-
- Accordingly, the Court concludes that FACT does not violate the free
- exercise clause or the Religious Freedom Restoration Act. [3]
-
- [3] Similarly, plaintiffs' challenge based on the establishment clause
- also fails as a matter of law because, as discussed above, FACE clearly has
- a secular purpose, and it neither fosters excessive government entanglement
- with religion nor has a primary effect of advancing or inhibiting
- religion. See, e.g., Harris v. McRae, 448 U.S. 297, 319-20 (1980).
-
-
- C. Congressional Power to Pass FACE
-
- Plaintiffs argue that Congress lacked power under the commerce
- clause to pass FACE, and that Congress therefore enacted FACE in
- violation of the tenth amendment. Plaintiffs further argue that
- Congress also lacked the authority to pass FACE under sec. 5 of the
- fourteenth amendment.
-
- When considering whether a particular exercise of congressional power
- is valid under the commerce clause, the Court must merely determine:
- 1) whether Congress had a basis for finding that the regulated
- activity affects interstate commerce, and 2) whether the means it
- selected to eliminate the problem are reasonable and appropriate. See
- Hodel v. Virginia Surface Mining & Reclamation Association, 452
- U.S. 264, 276 (1981). In considering these questions, the "court must
- defer to a congressional finding that a regulated activity affects
- interstate commerce, if there is any rational basis for such a
- finding" and end its inquiry "once [it] determines that Congress acted
- rationally in adopting a particular regulatory scheme." id.
-
- In passing FACE, Congress collected ample evidence that the conduct
- prohibited under FACE affects interstate commerce. Thus, for example,
- Congress concluded that "[c]linics and other abortion service
- providers clearly are involved in interstate commerce, both directly
- and indirectly. They purchase medicine, medical supplies, surgical
- instruments and other necessary medical products, often from other
- States; they employ staff; they own and lease office space; they
- generate income." Senate Report, at p. 31. Also, "many of the
- patients who seek services from these facilities engage in interstate
- commerce by traveling from one state to obtain services in another."
- Id. Clinic employees and physicians also travel across state lines to
- work. Furthermore, Congress found that the types of activities
- proscribed by FACE have a negative impact on interstate commerce,
- reducing the availability of abortion services and the interstate
- movement of people and goods. Id. Finally, Congress found that the
- problem addressed by FACE is nationwide and beyond the ability of
- individual states to control. Id.
-
- The Court further finds that the prohibitions in FACE are a
- reasonable and appropriate means to address the problem of violence at
- reproductive health service facilities. The Court concludes that
- Congress had the power under the commerce clause to enact FACE. [4]
- Having so concluded, the Court need not address plaintiffs' remaining
- argument that sec. 5 of the fourteenth amendment does not give Congress
- the independent authority to enact FACE.
-
- [4] Plaintiffs cite United States v. Cortner, 834 F.Supp. 242 (M.D.
- Tenn.1993) in support of their argument that Congress had no power to enact
- FACE pursuant to the commerce clause. In that case, the U.S. District
- Court for Middle District of Tennessee held that Congress lacked the
- authority under the commerce clause to enact the Anti Car Theft Act of
- 1992, 18 U.S.C. sec. 2119, because there is an insufficient nexus between
- "carjacking" and interstate commerce. Id. at 243-44. In contrast to the
- facts of Cortner, as discussed above, there is a sufficient nexus
- between the activities that are the subject of FACE and interstate commerce
- to support Congressional authority to enact FACE pursuant to the commerce
- clause. Moreover, even if that case were on point, it is not binding
- authority here and, in any case, its reasoning has since been rejected by
- at least one other court addressing precisely the same argument concerning
- precisely the same federal statute. See, e.g., United States v. Payne,
- 841 F.Supp. 810 (S.D. Ohio 1994) (upholding Congress' power under the
- commerce clause to enact the Anti Car Theft Act of 1992).
-
-
- D. Conclusion
-
- For the foregoing reasons, the Court concludes that FACE does not
- infringe plaintiffs' rights under the first and fifth amendments, or
- their putative statutory rights under the Religious Freedom
- Restoration Act, and Congress had full authority to enact FACE under
- the Commerce Clause. Because plaintiffs have failed to state a claim
- upon which relief can be granted, defendant's motion to dismiss the
- complaint is GRANTED and this action is DISMISSED.
-
- Because this action is dismissed for failure to state a claim upon
- which relief can be granted, plaintiffs' motion for a preliminary
- injunction is DENIED AS MOOT.
-
- IT IS SO ORDERED.
-
-
- [end of FAQ]
-