United States v. Bird

- REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-20792
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK LAFAYETTE BIRD,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
________________________________________________
September 24, 1997
Before GARWOOD, DAVIS and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant, an abortion protester, appeals his conviction for
violating the Freedom of Access to Clinic Entrances Act. He
challenges the authority of the Congress to enact a statute under
the Commerce Clause that proscribes intrastate, noncommercial
activity and he raises First Amendment challenges to the scope of
the Act and to the terms of his supervised release. Because we
find that there was a sufficient basis for the Congress to have
determined that the activity proscribed by the Act, though
intrastate, could have a substantial affect on the congressionally-
recognized national market for abortion-related services, and
because we find that the Act, as applied, is neither unduly vague
nor overbroad, we affirm the judgment of the district court. We
also find that the district court did not abuse its discretion when
it set the terms of appellant’s supervised release.
Facts and Proceedings Below
The facts are few and undisputed. On December 13, 1994,
appellant Frank Bird (Bird), while protesting outside the America’s
Women Clinic in Houston, Texas, threw a bottle at a car driven by
Dr. Theodore Herring (Herring), an abortion provider, as he
attempted to enter the clinic premises. As Bird threw the bottle,
he yelled, “Herring, I’m going to get you. I’m going to kill you.”
Although Dr. Herring was not physically injured, the bottle
shattered the windshield of his car. Employees of the clinic
subsequently called the police, who arrived at the scene and
arrested Bird.
On March 29, 1995, Bird was charged in a one-count indictment
with violating 18 U.S.C. § 248(a)(1), the provision of the Freedom
of Access to Clinic Entrances Act (FACE or the Act) that
criminalizes certain threats and intimidation directed at providers
of abortion services.
The case was tried on June 12, 1995. The jury returned a
guilty verdict the same day. On September 14, 1995, the district
court sentenced Bird to imprisonment for one year followed by one
year of supervised release with the special condition that he stay
at least one thousand feet from any abortion clinic, specifically
the America’s Women Clinic in Houston. The district court also
2
ordered Bird to pay $820.67 in restitution and ordered an
assessment of $50.
Bird filed a timely notice of appeal. Although Bird
challenges the constitutionality of the Act, he does not otherwise
contest his guilt under the statutory scheme. He also objects to
the wording of the district court’s judgment and the terms of his
supervised release. We affirm.
Discussion
Some four years ago, this Court, emphasizing the
Constitution’s establishment of a national government of limited
and enumerated powers——in which the powers of the federal government
were designed to be “‘few and defined’”——held that Congress, by
enacting a statute making it a federal crime to possess a firearm
in a school zone, had exceeded its authority under the Commerce
Clause. United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993)
(quoting The Federalist No. 45, at 292 (C. Rossiter ed. 1961),
aff’d, 115 S. Ct. 1624 (1995). This case calls on us to visit again
the issue of Congress’s authority to regulate intrastate activity
pursuant to its Commerce Clause authority, this time aided by more
recent clarifying Supreme Court authority. As with any challenge
to the constitutional validity of an act duly passed by Congress,
we approach our task knowing that it is both “the gravest and most
delicate duty that this Court is called on to perform,” Blodgett v.
Holden, 48 S. Ct. 105, 107 (1927) (Opinion of Holmes, J.), and that
it “forms one of the most powerful barriers which has ever been
devised against the tyranny of political assemblies,” Alexis de
3
Tocqueville, Democracy in America 76 (1956, Richard D. Heffner
ed.).
In 1994, reacting to a perceived nationwide problem of violent
protests and blockades directed at both providers and recipients of
abortion services, Congress enacted the Freedom of Access to Clinic
Entrances Act, an act making it a federal crime to engage in
certain prohibited activities interfering with the provision or
obtainment of “reproductive health services.” Specifically, the
Act provides:
“(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;
. . . .
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.” 18 U.S.C. §
248(a)(1) (West Supp. 1997).1
1
The Act defines several of its terms. “Facility” is defined
to include “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.” 18
U.S.C. § 248(e)(1). “Interfere with” means “to restrict a person’s
freedom of movement.” Id. § 248(e)(2). “Intimidate” means “to
place a person in reasonable apprehension of bodily harm to him- or
herself or to another.” Id. § 248(e)(3). “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. § 248(e)(4). “Reproductive health services” means
“reproductive health services provided in a hospital, clinic,
physician’s office, or other facility, and includes medical,
surgical, counseling or referral services relating to the human
4
The Act itself states that it was passed “[p]ursuant to the
affirmative power of Congress to enact . . . legislation under
section 8 of article I of the Constitution, as well as under
section 5 of the fourteenth amendment to the Constitution.”
Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-
259, § 2, 108 Stat. 694, 694. Although the Act itself does not
contain congressional findings, the “Joint Explanatory Statement of
the Committee of Conferees” to Senate Bill 636, which was
ultimately adopted as the Act, sets forth a number of relevant
findings.2
reproductive system, including services relating to pregnancy or
the termination of a pregnancy.” Id. § 248(e)(5).
Criminal penalties under the Act depend upon whether the
offense involved violence and upon whether the offender has
previously violated the Act. Id. § 248(b).
2
“2. FINDINGS AND PURPOSE
The Senate Bill, but not the House Amendment,
contains a Congressional Statement of Findings and
Purpose.
The House recedes with an amendment. The amendment
deletes the Findings but incorporates a portion of them
in the Purpose section. The Conferees note that Congress
has found:
(1) An interstate campaign of violent, threatening,
obstructive and destructive conduct aimed at providers of
reproductive health services across the nation has
injured providers of such services and their patients,
and the extent and interstate nature of this conduct
place it beyond the ability of any single state or local
jurisdiction to control;
(2) Such conduct, which has included blockades and
invasions of medical facilities, arson and other
destruction of property, assaults, death threats,
attempted murder and murder, infringes upon the exercise
of rights secured by federal and state law, both
statutory and constitutional;
(3) Such conduct also burdens interstate commerce
by forcing patients to travel from states where their
access to reproductive health services is obstructed to
5
I.
Bird makes a number of arguments challenging the
constitutionality of the Act. First, he argues that section
248(a)(1) was beyond the authority granted to Congress under either
other states, and by interfering with the interstate
commercial activities of health care providers, including
the purchase and lease of facilities and equipment, sale
of goods and services, employment of personnel and
generation of income, and purchase of medicine, medical
supplies, surgical instruments and other supplies from
other states;
(4) Prior to the Supreme Court’s decision in Bray
v. Alexandria Women’s Health Clinic, 113 S. Ct. 753
(1993), the conduct described in paragraphs (1) through
(3) above was frequently enjoined by federal courts in
actions brought under 42 U.S.C. 1985(3), but in that case
the Court denied a remedy under such sections to persons
injured by the obstruction of access to abortion-related
services; and
(5) Violent, threatening, obstructive and
destructive conduct aimed at providers of reproductive
health services can be prohibited, and the right of
injured parties to seek redress in the courts can be
established, without abridging the exercise of any rights
guaranteed under the First Amendment to the Constitution
or under any other law.” H. Conf. Rep. No. 103-488, at
7-8 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724-25
(emphasis added).
S. 636, as passed by the Senate, contained additional, more
detailed findings that were ultimately not included in the
Conference Committee report, some of which are as follows:
“(8) the entities that provide pregnancy or abortion-
related services engage in commerce by purchasing and
leasing facilities and equipment, selling goods and
services, employing people, and generating income;
(9) such entities purchase medicine, medical supplies,
surgical instruments, and other supplies produced in
other States;
(10) violence, threats of violence, obstruction, and
property damage directed at abortion providers and
medical facilities have had the effect of restricting the
interstate movement of goods and people.” S. 636, 103d
Cong. §§ 8-10 (1993) (as engrossed).
6
the Commerce Clause3 or Section Five of the Fourteenth Amendment.4
Second, he argues that the Act is “invidiously discriminatory”
because it protects certain familial relationships and fails to
protect others. Third, he contends that the Act is
constitutionally overbroad. Finally, he challenges the Act on
vagueness grounds.
Five other circuits have addressed the constitutionality of
the Act, each finding it to be a legitimate exercise of Congress’s
authority under the Commerce Clause. Terry v. Reno, 101 F.3d 1412
(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997); United
States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 117
S. Ct. 613 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir.
3
“The Congress shall have Power . . . To regulate
Commerce with foreign Nations, and among the several
States, and with the
Indian
Tribes.” U.S. Const., art. I, § 8, cl. 3.
4
“Section 1. All Persons born or
naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of
the United States and of the State wherein
they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws.
. . . .
Section 5. The Congress shall have power
to enforce, by appropriate legislation, the
provisions of this article.” U.S. Const.
amend. XIV, §§ 1, 5.
7
1995), cert. denied, 117 S. Ct. 47 (1996); Cheffer v. Reno, 55 F.3d
1517 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d
642 (4th Cir.), cert. denied, 116 S. Ct. 55 (1995). The
constitutionality of the Act is a question of first impression in
this Circuit.5 Although we agree with their ultimate holdings, we
nevertheless set forth our reasoning, which differs in some
respects from that of our sister circuits.
A. Congress’s Commerce Clause Authority
Relying on United States v. Lopez, 115 S. Ct. 1624 (1995), Bird
argues that section 248(a)(1) criminalizes private, noneconomic
conduct that is neither commercial in nature nor “‘an essential
part of a larger regulation of economic activity.’” Accordingly,
because the Act lacks a jurisdictional element that would ensure
that each instance of proscribed activity had an effect on
interstate commerce, Bird contends that the Act “‘neither regulates
a commercial activity nor contains a requirement that the
[prohibited activity] be connected to interstate activity.’” Bird
further argues that the congressional findings set forth in the
Act’s legislative history are not relevant to our inquiry because
Congress cannot use findings that a noncommercial activity
“affected interstate commerce” to support a statute that regulates
intrastate conduct. Finally, Bird attacks the “regulatory means”
5
Cook v. Reno, 74 F.3d 97 (5th Cir. 1996), involved
an appeal from a dismissal of a request for a preliminary
injunction. Cook was remanded to the district court for
reconsideration of the plaintiffs’ standing. This Court
did not reach the merits of the constitutional challenge
to the Act.
8
chosen by the Act as not “‘reasonably adapted to the end permitted
by the Constitution.’” In this regard, Bird contends that the
statutory definitions of “facility” and “reproductive health
services” sweep too broadly and exceed the reach of Congress’s
Commerce Clause authority.
The United States defends the Act as a proper exercise of
Congress’s authority under the Commerce Clause. First, also
relying on Lopez, 115 S. Ct. at 1629-30, the United States argues
that the Act is “a proper exercise of Congress’ power to ‘protect
. . . persons or things in interstate commerce.’” Second, the
government contends that the Act may be “sustained as an exercise
of Congress’ power to regulate ‘activities that substantially
affect interstate activity.’” The government emphasizes the
congressional findings that the proscribed activity “threatens in
the aggregate to eliminate abortion services from the national
commerce.” The government also maintains that no jurisdictional
element is required provided a criminal statute addresses a “class
of activity” that, in the aggregate, substantially affects
interstate commerce. Finally, the government argues that the
regulatory scheme adopted by the Act is reasonably adapted to a
permissible end.
The Supreme Court’s opinion in United States v. Lopez, 115
S. Ct. 1624, guides our inquiry. In Lopez, the Court set forth the
three areas of permissible congressional regulation pursuant to the
Commerce Clause. “First, Congress may regulate the use of channels
of interstate commerce.” Id. at 1629 (citing United States v.
9
Darby, 61 S. Ct. 451, 457 (1941); Heart of Atlanta Motel, Inc. v.
United States, 85 S. Ct. 348, 357 (1964)). “Second, Congress is
empowered to regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities.”
Id. (citing Shreveport Rate Cases, 34 S. Ct. 833 (1914); Southern
Ry. Co. v. United States, 32 S. Ct. 2 (1911); Perez v. United
States, 91 S. Ct. 1357, 1359 (1971)). “Finally, Congress’ commerce
authority includes the power to regulate those activities having a
substantial relation to interstate commerce, i.e., those activities
that substantially affect interstate commerce.” Id. (citing NLRB
v. Jones & Laughlin Steel Corp., 57 S. Ct. 615, 624 (1937); Maryland
v. Wirtz, 88 S. Ct. 2017, 2024 n.27 (1968)). Lopez did not set
forth the precise standard by which the federal judiciary shall
examine Congress’s legislative determination that a particular
statute has a nexus with interstate commerce under the third
category; rather, the Court emphasized that whether Congress had a
rational basis for determining that a regulated activity
“sufficiently affected interstate commerce” was “‘ultimately a
judicial rather than a legislative question.’” Id. at 1629 & n.2
(quoting Heart of Atlanta Motel, 85 S. Ct. at 366 (Black, J.,
concurring); Hodel v. Virginia Surface Mining & Reclamation Ass’n,
Inc., 101 S. Ct. 2352, 2391 (1981) (Rehnquist, J., concurring)
(“[S]imply because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make
it so.”)).
10
1. Channels of Interstate Commerce
The first Lopez category of permissible interstate regulation,
involving regulation of the channels of interstate commerce, is
plainly not applicable to the Act. This category, as described in
Perez, 91 S. Ct. at 1359, reaches the “misuse” of the channels of
interstate commerce. Oft-cited examples include the transportation
or shipment of: stolen goods, 18 U.S.C. § 2314, et seq.; kidnaped
persons, 18 U.S.C. § 1201, et seq.; prostitutes, 18 U.S.C. § 2421;
and drugs, 21 U.S.C. § 841(a); see also United States v. Robertson,
115 S. Ct. 1732, 1733 (1995) (affirming federal RICO conviction
because gold mine was “engaged in commerce”); United States v.
Darby, 61 S. Ct. 451 (1941) (upholding the authority of Congress to
prohibit the interstate shipment of goods produced by workers whose
wages violated the Fair Labor Standards Act); The Lottery Case, 23
S. Ct. 321 (1903) (affirming conviction for interstate
transportation of foreign lottery tickets under the Federal Lottery
Act of 1895). Section 248(a) “is not a regulation of the use of
the channels of interstate commerce, nor is it an attempt to
prohibit the interstate transportation of a commodity through the
channels of commerce.” Lopez, 115 S. Ct. at 1630.6
6
There is no congressional finding that federal
regulation of interstate violence or the like against
abortion clinics, providers, or patients can be
effectively accomplished only if intrastate conduct of
the same kind is also federally regulated; nor, so far as
we can asertain, was there any evidence to that effect
before Congress; and, we are not aware of anything which
would support such a conclusion. Cf. Lopez, 2 F.3d at
1351, 1367 n.51 (noting that federal regulation of
intrastate drug trafficking had been sustained on the
basis of congressional findings that the fungible and
11
2. Persons or Things in Interstate Commerce
The government argues that the Act falls within the second
category of permissible interstate regulation, specifically the
protection of persons or things in interstate commerce. The
government argues that Congress determined, through legislative
inquiry, that (1) doctors travel interstate to provide abortion
services, (2) patients travel interstate to receive abortion
services, and (3) clinics use medical supplies and equipment that
have traveled interstate.
We do not find the Act to be a valid exercise of Congress’s
Commerce Clause authority under the second Lopez category.
Although unquestionably many——perhaps most——abortion clinics employ
out-of-state doctors, serve out-of-state patients, and utilize
medical supplies and equipment that have traveled interstate, there
is no allegation or showing that, in the present case, America’s
Women Clinic ever employed physicians, treated patients, or used
supplies that so qualified. Congressional regulation or protection
of persons or things that move in interstate commerce must ensure
that, in fact, a particular “threat”——whether posed by an interstate
or intrastate activity——actually threatens persons or things with
a plain and clear nexus to interstate commerce. Of course, neither
medical doctors nor their patients are by their nature involved in
interstate commerce. Nor, for that matter, are medical supplies
inherently interstate commodities. In the absence of such a plain
untraceable characteristics of narcotis rendered such
regulation necessary to the effective regulation of
interstate trafficking).
12
and clear nexus, a statute must employ some mechanism to ensure the
federal regulation in fact regulates persons or things in
interstate commerce. Traditionally, this has been achieved by a
jurisdictional element or a statutory presumption. In this regard,
the Court in Lopez, 115 S. Ct. at 1629, cited federal statutes
criminalizing the destruction of aircraft employed in interstate
commerce, 18 U.S.C. § 32(a)(1) (criminalizing the destruction of
any aircraft “used, operated, or employed in interstate, overseas,
or foreign air commerce”), and theft from interstate commerce, 18
U.S.C. § 659 (criminalizing the theft of “any goods or chattels
moving as or which are a part of or which constitute an interstate
or foreign shipment”).
Congress did not set forth a jurisdictional element in section
248(a)(1). Even if there had been such a jurisdictional element,
or even if we were able to read the language of the Act to imply
such a requirement, United States v. Bass, 92 S. Ct. 515, 522-23
(1971) (requiring the government to demonstrate “the requisite
nexus with interstate commerce” for each element of a federal
firearm statute ambiguously containing the phrase “in commerce or
affecting commerce”), there was absolutely no allegation nor any
evidence produced at trial that America’s Women Clinic in Houston
employed out-of-state personnel, utilized out-of-state medical
supplies, or treated out-of-state patients. To the contrary, Dr.
Herring, the only witness, testified that he resided in Dallas,
Texas; he was never questioned concerning the supplies or equipment
used by the clinic, nor was he asked whether the clinic treated
13
patients from outside of the Houston area, let alone from outside
of Texas generally. No documentary evidence addressing the
interstate nature of the clinic’s business was produced by the
government at trial. Without evidence that America’s Women Clinic
used out-of-state staff or supplies, or that it provided abortion
services to out-of-state patients, it is difficult to see how
Bird’s actions had any affect on interstate commerce in medical
supplies, medical personnel, or the provision of medical services
to out-of-state patients.
Congress’s finding that “many of the patients who seek
services from [abortion providers] engage in interstate commerce by
traveling from one state to obtain [the abortion services] in
another,” S. Rep. No. 103-117, at 31; H. Conf. Rep. No. 103-488, at
7, and that physicians and other related medical personnel often
travel across state lines to provide abortion services, is not
sufficient to support section 248(a)(1) under this second Lopez
category. That “many,” “substantial numbers,” or “a majority” of
patients and doctors travel interstate to obtain or to provide
abortion services does not establish that this particular clinic
was ever so served or attended. Nor can the government’s citation
of cases involving specific, individualized findings relating to
other clinics in unrelated litigation involving a different statute
serve as a proxy for the individualized inquiry heretofore required
for each violation under this second Lopez category. See, e.g.,
Bray v. Alexandria Women’s Health Clinic, 113 S. Ct. 753, 782, 792
(1993) (Stevens, J., dissenting) (stating that between twenty and
14
thirty percent of patients at a targeted Virginia abortion clinic
were from outside Virginia and a majority at one of the Maryland
clinics were from outside Maryland); New York State N.O.W. v.
Terry, 886 F.2d 1339, 1360 (2d Cir. 1989) (“women referred by out-
of-state clinics often travel to New York City seeking its superior
medical services”), cert. denied, 110 S. Ct. 2206 (1990); Pro-Choice
Network v. Project Rescue, 799 F. Supp. 1417, 1430 (W.D.N.Y. 1992)
(“Plaintiffs’ health care facilities render services to patients
from other states, especially Pennsylvania[,] Ohio, and Canada”);
Lucero v. Operation Rescue, 772 F. Supp. 1193, 1195 (N.D. Ala.
1991) (finding 1.5% of patients resided outside of Alabama).7
3. Intrastate Activity that “Substantially Affects” Interstate
Activity
That the Act fails to qualify under the first two Lopez
categories of permissible Commerce Clause regulation is not
surprising in light of what appears to be Congress’s purpose to
reach the prohibited activity at as many abortion clinics as
possible. Indeed, the government concedes as much, emphasizing
that Congress has the authority to regulate intrastate activity
that, in the aggregate, has a substantial effect on interstate
commerce.
As a federal criminal statute regulating intrastate,
7
There is no congressional finding, nor (so far as
we can ascertain) any evidence before Congress, that in
order to effectively protect from violence clinics,
providers, or patients which were in interstate commerce
it was necessary to also extend such protection to
clinics, providers, and patients having no connection to
interstate commerce, and we are not aware of anything
which would support such a conclusion.
15
noncommercial conduct, section 248(a)(1) must be justified, if at
all, as “an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated.” Lopez, 115 S. Ct. at 1631.
From the outset, we note, and reject, both the government’s and
Bird’s view of permissible congressional regulation in this Lopez
category.
Bird insists that Lopez requires a statute regulating
intrastate activity pursuant to the Commerce Clause to contain a
jurisdictional element. Furthermore, Bird maintains that the
intrastate activity that may be regulated must, at a minimum, be
commercial. We do not read Lopez so broadly. First, though a
jurisdictional element may help to ensure that the exercise of
Congress’s Commerce Clause authority extends only to those
activities that substantially affect interstate commerce, it is
only one method, and not always a necessary one, by which Congress
may achieve that end. See, e.g., Terry, 101 F.3d at 1418 (“Lopez’s
fundamental proposition is that Congress must ensure that its
Commerce Clause power to regulate noncommercial activities extends
to only those activities that substantially affect interstate
commerce. Congress may do so either through its own legislative
findings or by including a jurisdictional element in the statute;
it need not do both.”); Wilson, 73 F.3d at 685 (“In discussing the
lack of a jurisdictional element in Lopez, the Court simply did not
state or imply that all criminal statutes must have such an
element, or that all statutes with such an element would be
16
constitutional, or that any statute without such an element is per
se unconstitutional.”).8 Second, the Court in Lopez did not
overrule——indeed, it expressly reaffirmed——the proposition set forth
in Wickard v. Filburn concerning congressional regulation of
intrastate, noncommercial activity:
“‘[E]ven if appellee’s activity be local and though it
may not be regarded as commerce, it may still, whatever
its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce, and
this irrespective of whether such effect is what might at
some earlier time have been defined as “direct” or
“indirect.”’” Lopez, 115 S. Ct. at 1628 (quoting Wickard,
63 S. Ct. 82, 87 (1942)).
The Supreme Court reiterated that intrastate, noncommercial
activities can, in certain circumstances, substantially affect
interstate commerce when considered in the aggregate. After
Wickard——and its reaffirmance in Lopez——there can be no question
that Congress is able to regulate noncommercial, intrastate
activity that substantially affects interstate commerce,9 an
8
In any event, jurisdictional elements do not
necessarily preclude “as-applied” Commerce Clause
challenges. See, e.g., United States v. Collins, 40 F.3d
95, 99-101 (5th Cir. 1994) (reversing Hobbs Act
conviction because of the “absence of evidence showing
some direct or substantial indirect effect on interstate
commerce”).
9
See also Russell v. United States, 105 S. Ct. 2455
(1985) (upholding the federal arson statute, 18 U.S.C. §
844(i), which criminalizes the destruction or attempted
destruction by arson of “property used in . . . any
activity affecting interstate or foreign commerce”);
United States v. Corona, 108 F.3d 565 (5th Cir. 1997)
(affirming a conviction under 18 U.S.C. § 844(i) for the
destruction of commercial property, but questioning
whether an unlimited “effects test” would permit the
“speculative” aggregation of negligible effects on
interstate commerce to support a conviction for the
burning of a private residence); Stirone v. United
17
admittedly broad power not without danger to the federalism that is
the most fundamental postulate of our constitutional order.10 The
question remains in any given case, however, whether Congress’s
exercise of power in this manner is properly limited. It is the
government’s view of this limiting principle that we find flawed.
Under the government’s view, Congress need only identify a
broad “class of activities” and determine that, viewed in the
aggregate, the class “substantially affects” interstate commerce.
Of course, the only “limits” provided by such a construction as
thus stated are the depths of judicial imagination. The government
made a similar, unrestricted argument to justify the Gun Free
School Zones Act in Lopez. This Court characterized the
government’s version of the “class of activities” argument as
States, 80 S. Ct. 270 (1960) (upholding the Hobbs Act, 18
U.S.C. § 1951, which criminalizes certain noncommercial
activities that “affect[] commerce or the movement of any
article or commodity in commerce”); United States v.
Coleman, 78 F.3d 154, 158-60 (5th Cir.) (upholding the
federal car-jacking statute, 18 U.S.C. § 2119, which
criminalizes car jacking “a motor vehicle that has been
transported, shipped, or received in interstate or
foreign commerce”), cert. denied, 117 S. Ct. 230 (1996).
Cf. Katzenbach v. McClung, 85 S. Ct. 377 (1964), and Heart
of Atlanta Motel, Inc. v. United States, 85 S. Ct. 348
(1964) (upholding anti-discrimination in service
provisions of Title II of the Civil Rights Act of 1964 as
applied to restaurants and hotels engaged in interstate
commerce).
10
The Tenth Amendment contains no substantive
restriction on the legitimate exercise of Congress’s
Commerce Clause authority; that is, the boundaries of the
Commerce Clause power are not delineated by the Tenth
Amendment. But, the Tenth Amendment plainly does confirm
that the commerce power is not limitless, that hence such
boundaries do exist, and that they must not be
transgressed.
18
lacking a limiting feature such as the existence of a national
market:
“The government seeks to rely on the rule that ‘[w]here
the class of activities is regulated and that class is
within the reach of the federal power, the courts have no
power “to excise as trivial, individual instances” of the
class.’ This theory has generally been applied to the
regulation of a class of activities the individual
instances of which have an interactive effect, usually
because of market or competitive forces, on each other
and on interstate commerce. A given local transaction in
credit, or use of wheat, because of national market
forces, has an effect on the cost of credit or price of
wheat nationwide. Some such limiting principle must
apply to the ‘class of activities’ rule, else the reach
of the Commerce Clause would be unlimited, for virtually
all legislation is ‘class based’ in some sense of the
term.” Lopez, 2 F.3d at 1367 (quoting Perez, 91 S. Ct. at
1361; Wirtz, 88 S. Ct. at 2022).
We believe that a requirement for such a limiting principle in the
absence of a jurisdictional element, although not expressly adopted
by the Supreme Court, is the only legitimate reading of the
Wickard-Perez line of cases. Unless there is something that
relevantly ties the separate incidents and their effects on
interstate commerce together, aside from the desire to justify
congressional regulation, the government’s “class of activities”
interpretation would transform Justice Breyer’s Lopez dissent into
the constitutional rule. See Lopez, 115 S. Ct. at 1659-62 (Breyer,
J., dissenting) (arguing that guns in schools undermine the quality
of education which, in turn, leads to “lagging worker productivity”
and, eventually, the erosion of “our [Nation’s] economic ‘standing
in the international marketplace’”); id. at 1632 (criticizing the
government’s “costs of crime” and “national productivity”
19
arguments).11 Wickard itself offered, as a limiting principle, the
national wheat market. Perez cited the national market for
commercial credit. The “fungible and untraceable” characteristic
of narcotics——which Congress found made federal regulation of
intrastate trafficking an operationally necessary prerequisite to
effective regulation of the interstate activity——was itself a tying
feature (albeit one which was more relevant to bring intrastate
activity within the reach of Lopez’s first category). See Lopez,
2 F.3d at 1351, 1367 n.51 (citing United States v. Lopez, 459 F.2d
949, 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United
States, 93 S. Ct. 130 (1972)).
In other words, although activities proscribed by an act of
Congress may constitute, generically, a “class of activities,” and,
when viewed in the aggregate, these activities may “substantially
affect” interstate commerce in some broad and general sense, these
two features, alone, are not sufficient to justify congressional
legislation pursuant to the Commerce Clause. What was missing in
Lopez, and what is needed to justify congressional action under the
“substantial effects” category, are “judicially enforceable outer
11
These considerations similarly inform us that, in
determining whether the regulated intrastate activity
substantially affects interstate commerce, “substantial”
must be understood to have reference not only to a
quantitative measure but also to qualitative ones;
effects which are too indirect, remote, or attenuated——or
are seen only by piling “inference upon inference”——are
not substantial. Our use of “substantially” hence
embraces both quantitative and qualitative measures.
20
limits.” Lopez, 115 S. Ct. at 1633.12
Accordingly, our inquiry must determine not simply whether
section 248(a)(1) proscribes intrastate activity that has (or might
have) a substantial affect on interstate commerce, but rather
whether there is a national commercial market in abortion-related
services such that the regulated conduct——considered in light of
the size and scope of the benchmark market——substantially affects
interstate commerce. In other words, Congress must have divined
the existence of a national commercial market in abortion-related
services in which the closing down or obstruction of any clinic (or
clinics) in one state (even if only serving local patients with
local doctors) substantially affects the ability of clinics in
other states to provide abortion-related services. To this end we
must examine the congressional findings, the committee reports, and
12
While certain language in United States v.
Robinson, 119 F.3d 1205 (5th Cir. 1997), read in
isolation, might be understood to embrace a somewhat far-
reaching “class of activities” analysis, the opinion must
be read in the context of what was before the panel
there, namely a prosecution under the Hobbs Act, a
statute specifically providing for an interstate commerce
nexus, for robberies of businesses directly engaged in
interstate commerce (in addition to dealing in
merchandise from out of state, “[t]he stores provided
check-cashing services . . . the stores cashed out-of-
state checks, payroll checks, and government benefit
checks”) with a direct impact on the interstate commerce
of the locations robbed (“one store was forced to close
permanently for lack of capital, and the others were
unable to cash checks for a finite period of time”). Id.
at 1208. Here, by contrast, the statute requires no
nexus whatever to interstate commerce, and the evidence
does not establish that the victim clinic or doctor was
(then or ever) engaged in interstate commerce (i.e.,
serving interstate patients or utilizing out-of-state
providers or the like).
21
the relevant testimony.
We are persuaded that section 248(a)(1) is a legitimate
regulation of intrastate activity having a substantial affect on
interstate commerce. First, Congress made findings, supported by
the testimony presented to the House and Senate committees charged
with considering the Act, that there was an interstate commercial
market for abortion services. Second, Congress found that the
activity prohibited by the Act constituted a nationwide problem,
regularly causing the interruption of abortion services at the
clinics where the prohibited activity occurred.13 Third, Congress
13
We do not suggest that simply because a type of
antisocial conduct (which any state could validly
proscribe) can fairly be described as a “national”
problem in the sense that many (or even all) states
experience more instances of it than are desirable or
desired, that this of itself suffices to bring such
conduct within the scope of Congress’s Commerce Clause
power. Plainly it does not. Ever since a time well
before the Constitutional Convention,
there have been every year in each of the several states
more murders than desirable or desired, but it is
nevertheless plain that the Commerce Clause does not
authorize Congress to enact legislation punishing any and
all murders throughout the nation. As Chief Justice
Marshall wrote for a unanimous Court in Cohens v.
Virginia, 19 U.S. 264, 5 L. Ed. 257 (1821), “Congress has
. . . no general right to punish murder committed within
any of the states,” id. at 426, and “[i]t is clear, that
Congress cannot punish felonies generally.” Id. at 428.
Here, it is also true that the proscribed offenses all
share a relatively narrow common goal or motivation and
are all directed at a relatively narrow common set of
victims, and further that many of the proscribed offenses
involve common perpetrators traveling in interstate
commerce and victims engaged in interstate commerce. As
the proscribed conduct is present nationally, these
factors may have some tendency to support the statute,
but are not collectively of themselves alone sufficient
to bring it within the Commerce Clause where the statute
has no jurisdictional nexus and neither the allegations
nor the evidence show that the defendant traveled in
22
found that the interruption of abortion services due to the
activities prohibited by the Act caused (or was likely to cause)
women to travel from the states where abortion services were
interrupted to clinics, often out of state, that were able to
provide unobstructed abortion services. Finally, it is a fair
inference, supported by congressional testimony, that the
proportionate increase in demand at unobstructed clinics brought
about by those women forced to seek abortion services in the
national commercial market because of intrastate activity
obstructing local abortion clinics both increased (or was likely to
increase) the cost of abortion services and reduced (or was likely
to reduce) the availability of abortion services at the
unobstructed clinics. Accordingly, in light of the national
commercial market in abortion-related services recognized by
Congress, we hold that Congress was justified in concluding that
the regulation of intrastate activity——the activity prohibited by
the Act——was necessary to ensure the availability (both in terms of
access and price) of abortion services in the national commercial
market. Consistent with Lopez’s admonition, we note that the
presence of a national commercial market in abortion-related
services, together with the effects on such market of the
proscribed conduct, serves as a limiting principle circumscribing
interstate commerce (or acted in concert with those who
did) or that either the clinic or provider was engaged in
interstate commerce (and there being no showing or
congressional finding that regulation of intrastate
perpetrators or protection of intrastate victims was
necessary to effectively either regulate interstate
perpetrators or protect interstate victims).
23
Congress’s regulation of intrastate activity under the Act.
In reaching our determination that the Act satisfies the
“substantially affects” category, we note that the finding set
forth in the Conference Committee Report, stating that the activity
proscribed by the Act “burdens interstate commerce by forcing
patients to travel from states where their access to reproductive
health services is obstructed to other states” is a conclusion
derived from months of legislative hearings, research, and debate.
As such, it is entitled to deference and should be interpreted,
insofar as it is consistent with the information before the
Congress at the time of enactment, to support a constitutional
reading of the Act.14 Cf. Rust v. Sullivan, 111 S. Ct. 1759, 1771
(1991) (“‘The elementary rule is that every reasonable construction
must be resorted to, in order to save a statute from
unconstitutionality.’”) (quoting Hooper v. California, 15 S. Ct.
207, 211 (1895)).
a. National Market for Abortion-Related Services
Congress found that doctors travel across state lines to
14
Use of legislative history in this manner is
entirely consistent with our responsibility to gauge the
regulated activity’s effect on interstate commerce. See
Lopez, 115 S. Ct. at 1631 (“[A]s part of our independent
evaluation of constitutionality under the Commerce Clause
we of course consider the legislative findings, and
indeed even the congressional committee findings,
regarding the effect on interstate commerce . . . .”);
Presseault v. ICC, 110 S. Ct. 914, 924-25 (1990)
(discussing the House and Senate reports accompanying the
National Trails System Act); Bass,
92 S. Ct. at 520-21 (examining House and Senate floor
statements to discern link to interstate commerce);
Coleman, 78 F.3d at 158-59 (quoting House Report and
House and Senate floor statements).
24
provide abortion services and that patients also travel interstate
to obtain such services. S. Rep. No. 103-117, at 31 (1993)
(“[M]any of the patients who seek services from these facilities
engage in interstate commerce by traveling from one state to obtain
services in another.”); H. Rep. No. 103-306, at 8 (1993) (“Many of
the counties that have providers are urban centers. A rural
provider is often the only provider in a large geographical area.
. . . The facts are that only 17 percent of U.S. counties have an
abortion provider and that clinic owners face a shortage of doctors
willing to perform abortions.”), reprinted in 1994 U.S.C.C.A.N.
699, 705. Indeed, it is the very shortage of abortion-related
services that appears to have created the national market for these
services. See S. Rep. at 17 & n.29 (“The availability of abortion
services is already very limited in many parts of the United
States. Nationwide, 83% of counties have no abortion provider. In
South Dakota, the only physician who performs abortions commutes
from Minnesota.”).
The House and Senate reports accurately reflect the testimony
presented to the respective committees. See Abortion Clinic
Violence: Hearings Before the Subcomm. on Crime and Criminal
Justice of the Comm. on the Judiciary, 103d Cong., at 3 (1993)
[hereinafter House Hearings] (letter of Atty. Gen Reno) (stating
that “patients and staff frequently travel interstate” to receive
or to administer abortion-related services); The Freedom of Access
to Clinic Entrances Act of 1993: Hearing Before the Comm. on Labor
and Human Resources, 103d Cong., at 11, 16-17 (1993) [hereinafter
25
Senate Hearings] (statement of Atty. Gen. Reno) (stating that
abortion clinics are engaged in interstate commerce and that
clinics serve significant numbers of out-of-state patients); id. at
59, 64-65 (statement of Willa Craig, Executive Director, Blue
Mountain Clinic, Missoula, MT) (“A large number of our abortion and
our prenatal patients travel an average of 120 miles to their
appointments at our clinic due to a lack of services in their own
areas. These areas include Idaho, eastern Washington, Wyoming and
Canada.”); see also 139 Cong. Rec. S15, 658 (daily ed. Nov. 16,
1993) (statement of Sen. Kennedy) (noting the nationwide shortage
of abortion-related services).
b. Activity Proscribed by the Act Threatens the Availability
of Abortion-Related Services
Congress found that the activity proscribed by the Act
constituted a national problem, regularly causing the interruption
of abortion-related services at the clinics where prohibited
activity occurred. The Senate Report states that clinic blockades
and violent protests had “a significant adverse impact not only on
abortion patients and providers, but also on the delivery of a wide
range of health care services. This conduct has forced clinics to
close, caused serious and harmful delays in the provision of
medical services, and increased health risks to patients. It has
also taken a severe toll on providers, intimidated some into
ceasing to offer abortion services, and contributed to an already
acute shortage of qualified abortion providers.” S. Rep. No. 103-
117, at 14. The Senate Report observed the link between the
activity prohibited by the Act and the concomitant shortage in
26
abortion-related services. Id. at 17 (“Some providers have
succumbed to the intimidation and threats. At least three
physicians in Dallas stopped performing abortions in 1992 as a
result of pressure by an anti-abortion group. In early 1993, after
receiving death threats, two doctors stopped working at an abortion
clinic in Melbourne, FL. And since Dr. Gunn was shot in March
1993, at least eight more doctors have stopped offering abortion
services.”); id. at 80 (statement of Randall Terry, Director,
Operation Rescue) (stating that he personally facilitated the
withdrawal of half the abortion providers in a community). The
House Report also observed that the reduced availability of
abortion-related services was “at least partially attributable to
the violence and intimidation described in this report. Doctors
understandably are leaving the field, and new graduate[s] have
little desire to enter the field even as part of a wider
obstetrics/gynecology practice.” H. Rep. No. 103-306, at 8.
Congress noted the severity and frequency of abortion clinic
violence. Id. (noting that, from 1984 through 1992, there had been
“28 bombings, 62 arsons, 48 attempted bombings and arsons, 266 bomb
threats, and 394 incidents of vandalism”); S. Rep. No. 103-117, at
3 & n.1 (noting that, from 1977 through 1993, there had been “36
bombings, 81 arsons, 131 death threats, 84 assaults, two
kidnappings, 327 clinic invasions, and one murder”). Testimony
before Congress made clear that the goal of the activity proscribed
by the Act was to reduce or eliminate the national market for
abortion-related services and that such activity had already
27
achieved partial success. See, e.g., House Hearings, at 2
(statement of Rep. Schuman) (observing that “[t]he stated goal of
the tactics is to drive doctors and clinics out of the business of
providing abortions and the tactics appear to be working” and
noting the diminishing numbers of physicians willing to provide
abortion-related services); Senate Hearings, at 167-68 (statement
of Freedom of Choice Action League) (detailing resignation of a
Wichita, Kansas, physician from an abortion clinic after she
received repeated threats). Floor debates also focused on the
interruption of abortion-related services brought about by the
activity proscribed by the Act. See, e.g., 139 Cong. Rec. S15,672
(daily ed. Nov. 16, 1993) (statement of Sen. Mikulski) (noting that
abortion clinic violence has “destroyed clinic facilities——leaving
women without access to health care facilities”); 139 Cong. Rec.
H10,089 (daily ed. Nov. 18, 1993) (statement of Rep. Pelosi) (“over
50 percent of clinics across the country offering reproductive
health services have undergone extreme violence”); id. at H10,090
(statement of Rep. Engel) (“The work of many clinics——which often
includes low-cost prenatal care, birth control, infertility, and
adoption as well as abortion services——has been disrupted regularly
by blockades, chemical attacks, and invasions.”); id. at H10,091
(statement of Rep. Stokes) (“[Activity proscribed by the Act has]
damaged clinic facilities or driven away clinic staff, forcing
these facilities to reduce their patient load and the wide range of
services they provide. Other clinics have had to cease operations
altogether after their facilities were destroyed by fire or
28
bombings, leaving thousands of women without adequate health care
services.”); 139 Cong. Rec. H1501 (daily ed. Mar. 17, 1994)
(statement of Rep. Kennelly) (noting the national scope of the
abortion clinic violence).
c. The National Shortage of Abortion-Related Services Forces
Travel to Out-of-State Providers
Congress found that the interruption of abortion-related
services due to the activities proscribed by the Act caused (or was
likely to cause) women to travel from those states where abortion-
related services were not reasonably available to clinics in those
states where abortion-related services were reasonably available.
The Senate Report states:
“[B]lockades that make access to a health care facility
difficult or hazardous can have traumatic effects on
patients by delaying their access to urgent medical care
and by exacerbating their medical conditions. . . . For
patients seeking abortion services, the adverse effects
of a clinic blockade can be particularly serious. Dr.
Pablo Rodriguez described the effects on patient health:
‘Our patients are the ones who suffer. Women
who do make it in have a heightened level of
anxiety and a greater risk of complications. The
delay caused by the invasions has forced some
patients to seek care elsewhere due to the fact
that their gestational age has gone beyond the
first trimester.’”
S. Rep. No. 103-117, at 15 (quoting testimony of Dr.
Pablo Rodriguez).
The House Report reaches a similar conclusion. See H. Rep. No.
103-306, at 10. (“In addition, patients often cross state lines to
obtain services . . . .”) (citing testimony of Silvia Doe).
Testimony before Congress made clear that activity proscribed
by the Act delayed (and threatened to deny permanently) access to
abortion-related services to women who, due to the existing
29
shortage of such services, had traveled (or would be required to
travel) interstate to obtain them. Silvia Doe testified about her
decision to seek a late-term abortion after learning of a fetal
malformation. She further testified that only three clinics in the
country offer such a service. She was forced, by the shortage of
providers, to travel from Virginia to Kansas. In Wichita, Kansas,
she was delayed from obtaining her abortion due to a clinic
blockade at the Wichita clinic. Clinic Blockades: Hearing Before
the Subcomm. on Crime and Criminal Justice of the Comm. on the
Judiciary, 102d Cong., at 9-17 (statement of Silvia Doe).
The congressional testimony and the activity described in the
committee reports provide sufficient evidence for the Congress to
have concluded that entirely intrastate activity——here, the activity
proscribed by the Act——had, at the very least, the potential to
cause women who had been prevented from obtaining abortion-related
services in their home states to travel to unobstructed providers
in other states.
d. Intrastate Activity Proscribed by the Act Affects the
Availability of Abortion-Related Services in the National Market
We are persuaded that it is a fair inference that the activity
proscribed by the Act——which has (or threatens to have) the effect
of precluding access to abortion-related services in the area
served by the targeted clinic——can have a substantial affect on the
availability of abortion-related services in the national market.
Such a conclusion is rational and supported by testimony presented
to the committees charged with reviewing the bills that eventually
became the Act.
30
The House Subcommittee on Crime and Criminal Justice heard
testimony that, because of the continued threats of violence and
disruptive activities, abortion clinics have been forced to
implement heightened security measures to ensure access. House
Hearings, at 25 (statement of Susan Hill, President, Nat’l Women’s
Health Org.) (noting that “[o]bviously, that drives up the costs of
providing the service”). The Senate Committee on Labor and Human
Resources considered a report printed in the American Journal of
Obstetrics and Gynecology which noted that abortion clinic violence
increases the costs of abortion services at those clinics that
remain open. The report stated that abortion patients have been
forced, due to clinic violence, to seek other providers or postpone
care. Senate Hearings, at 54. Additional testimony before the
Senate Committee set forth the Commerce Clause rationale for the
Act’s regulation of intrastate activities to ensure the
availability of abortion-related services in the national market:
“The pattern of interstate effects produced by the
pressured movement of women from State to State under a
variegated patchwork of local enforcement against
blockades, violence and physical intimidation at abortion
clinics is undoubtedly sufficient to warrant Congress’s
invocation of its commerce power. Similarly, the shift
of demand for abortion services from those areas where
clinic access is obstructed to those areas where it is
not represents the sort of interstate economic effect
that is beyond the effective control of any one State and
is accordingly a proper subject for congressional
regulation under the Commerce Clause.” Id. at 97
(statement of Professor Tribe) (citing Summit Health,
Ltd. v. Pinhas, 111 S. Ct. 1847, 1846-47 (1991)).
This described shift in demand from obstructed clinics to
unobstructed clinics——given the national scarcity of abortion-
related services——supports the legitimacy of Congress’s enactment
31
of section 248(a). The patent congressional concern that the
activity proscribed by the Act, although intrastate, could have a
deleterious impact on the availability of abortion-related services
in the national market, makes clear that “Congress was addressing
an interstate problem rather than a multistate, intrastate
problem.” Wilson, 73 F.3d at 683.
Accordingly, in light of the evident congressional purpose to
ensure the availability of abortion-related services in the
national commercial market,15 we hold that the enactment of section
15
We recognize, of course, that “[t]he motive and
purpose of a regulation of interstate commerce are
matters for the legislative judgment upon the exercise of
which the Constitution places no restriction and over
which the courts are given no control.” Darby, 61 S. Ct.
at 457. This is not to say, however, that the motive or
purpose of any congressional regulation passed under the
Commerce Clause is “irrelevant.” United States v.
Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996). Certainly
when Congress is regulating interstate commercial
activity, its reason for doing so is immaterial. But
where, as here, Congress is regulating purely intrastate,
noncommercial activity because of its substantial affect
on interstate commerce, the purpose must in fact be to
regulate interstate commerce. “Let the end be
legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” M’Culluch v.
Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis
added). See also id. at 423 (“should Congress, under the
pretext of executing its powers, pass laws for the
accomplishment of objects not entrusted to the
government,” Supreme Court would be bound to hold law
invalid). Surely, it would be a perversion of
congressional authority to uphold as constitutional a
federal statute that purported to be an exercise of
Commerce Clause power but was for the sole purpose of
reaching intrastate activity without regard to whether or
how that activity would actually affect interstate
commerce. The regulation of intrastate commerce per se,
and for its own sake, and not as a means of regulating or
32
248(a), as applied to the facts of the present case, was a
constitutional exercise of Congress’s power under the Commerce
Clause. Because we conclude that Congress possessed the requisite
authority under the Commerce Clause, we pretermit the substantially
more questionable assertion of congressional authority to
criminalize purely private conduct (not directed at state property
or facilities) under Section Five of the Fourteenth Amendment. See
The Civil Rights Cases, 3 S. Ct. 18 (1883). See also City of Boerne
v. Flores, 117 S. Ct. 2157, 2166 (1997).16
B. Invidious Discrimination against Familial Relationships
Bird next argues that the Act is unconstitutional because it
protects certain familial relationships, but fails to protect
others. Section 248(a) states 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
affecting interstate commerce, is not an “end . . .
within the scope of the constitution.” Here, however, we
cannot say that Congress has so perverted its Commerce
Clause power. The regulation in question is at least
colorably directed at ensuring the availability of
abortion-related services in the national commercial
market.
16
Nor do we have occasion to determine the propriety
of the Act’s criminalization of certain activities by
private citizens that may interfere with a person’s
exercise of religious freedom at a place of worship or a
person’s use of a noncommercial counseling
facility——neither of which would seem to fall within the
type of economic regulation permitted by Lopez as there
was no congressional finding or testimony concerning the
commercial nature of such activity, any national shortage
of counselors or counseling services, or the existence of
any national tying feature supporting the exercise of
congressional Commerce Clause authority under the
“substantial affects” category.
33
exclusively at that minor.” 18 U.S.C. § 248(a). Thus, a father
who physically blocks his daughter from having an abortion has not
violated the Act, but a brother who restrains his sister has
violated the Act. Bird asserts that there is no reasonable basis
for exempting certain familial relationships while exempting
others.
As Bird is not related to Dr. Herring in any capacity, and the
record does not establish that his actions in any manner reflect an
attempt to affect the obtainment of abortion-related services by a
member of his family, he lacks standing to advance this claim——his
concern is simply not implicated by the facts here presented. This
Court “‘has no jurisdiction to pronounce any statute, either of a
state or of the United States, void, because irreconcilable with
the constitution, except as it is called upon to adjudge the legal
rights of litigants in actual controversies.’ . . . [O]ne to whom
application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional.” United States v. Raines,
80 S. Ct. 519, 522 (1960) (quoting Liverpool, N.Y. & Phila. S.S. Co.
v. Commissioners of Emigration, 5 S. Ct. 352, 355 (1885)); see also
United States v. Salerno, 107 S. Ct. 2095, 2100 & n.3 (1987).
Accordingly, we express no opinion as to the merits of Bird’s
challenge in this respect.
C. Overbreadth
Bird next argues that the Act is unconstitutional because it
34
is overbroad under the First Amendment. Bird concedes that the
First Amendment does not protect activities that are violent or
physically injurious, including threats of force and certain
physical obstructions, such as blockades of pedestrian traffic.
Instead, Bird takes issue with the Act’s prohibition on physical
obstruction, intentional interference with others, attempted
interference with others, and intentional injury “in the emotional
or psychological sense.” Bird contends that a “large demonstration
or picketing activity could well constitute a ‘physical
obstruction’” under the Act.
We need not tarry long with Bird’s overbreadth argument, for
the Act proscribes conduct, not speech. By its terms, it prohibits
only specified uses of “force,” “threat[s] of force,” and “physical
obstruction”; none of which are protected by the First Amendment.
Wisconsin v. Mitchell, 113 S. Ct. 2194, 2199 (1993) (force); Madsen
v. Women’s Health Ctr., Inc., 114 S. Ct. 2516, 2529 (1994)
(threats); Cameron v. Johnson, 88 S. Ct. 1335, 1338-39 (1968)
(physical obstruction). In any event, the conduct for which Bird
was convicted, and at least virtually all that proscribed by the
terms of section 248(a)(1), is not protected by the First
Amendment; accordingly, that there could arguably be some rare
hypothetical case at the outer margins of section 248(a)(1) where
First Amendment concerns might arise does not avail Bird.
Broadrick v. Oklahoma, 93 S. Ct. 2908, 2917-18 (1973); see also
Morse v. Republican Party of Virginia, 116 S. Ct. 1186, 1211 & n.38
(1996); United States v. Wallington, 889 F.2d 573, 576 (5th Cir.
35
1989). This is particularly so as the Act was narrowly drafted
with the intent of not abridging First Amendment protections.17
Accordingly we agree with every other circuit court that has
addressed the issue and hold that the Act is not unconstitutionally
overbroad. See Terry, 101 F.3d at 1421; Soderna, 82 F.3d at 1376;
Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1520-21; American
Life League, 47 F.3d at 653.
D. Vagueness
A statute is unconstitutionally vague if it does not give a
“person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.” Grayned v.
City of Rockford, 92 S. Ct. 2294, 2298-99 (1972). Bird asserts that
the Act fails to give fair notice of what is proscribed and fails
to provide explicit standards for the enforcement of particular
provisions. Specifically, he claims that the terms “intimidate,”
“interfere with,” “attempts to . . . intimidate or interfere with”
and “injures” are too vague to be constitutional. An abortion
protester, he argues, will not be sure whether his actions comply
with the Act or subject him to penalties.
The Supreme Court has upheld against a vagueness challenge a
statute closely resembling the Act. Cameron, 88 S. Ct. 1335. The
17
The Act provides:
“(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.” 18 U.S.C. §
248(d).
36
statute at issue in Cameron provided that:
“‘It shall be unlawful for any person, singly or in
concert with others, to engage in picketing or mass
demonstrations in such a manner as to obstruct or
unreasonably interfere with free ingress or egress to and
from any public premises . . . .’” Id. at 1336 n.1.
The Court found that the statute “clearly and precisely
delineate[d] its reach in words of common understanding.” Id. at
1338. In light of the Act’s similarity to the statute at issue in
Cameron, we hold that the Act’s terms are not unconstitutionally
vague. See Terry, 101 F.3d at 1421; Dinwiddie, 76 F.3d at 924. In
any event, there is no vagueness or lack of clarity in the
application of the terms of section 248(a)(1) to what Bird was
convicted of doing, and in at least the vast majority of cases
whether or not the terms of section 248(a)(1) apply will be
adequately clear; the theoretical possibility that some rare case
at the margins of section 248(a)(1) might arise where the
applicable of its terms could be unclear does not avail Bird.
Parker v. Levy, 94 S. Ct. 2547, 2562 (1974); Umphlet v. Connick, 815
F.2d 1061, 1066 (5th Cir. 1987); Ferguson v. Estelle, 718 F.2d 730,
735 (5th Cir. 1983).
II.
As a condition of supervised release, the district court
ordered Bird to “[s]tay at least 1,000 feet away from abortion
clinics, specifically the America’s Women Clinic.” The district
court was permitted to order, as a condition of supervised release,
“any other condition it consider[ed] to be appropriate” provided
the condition “involve[d] no greater deprivation of liberty than
37
[was] reasonably necessary” to deter criminal conduct and to
protect the public. 18 U.S.C. § 3583(d). The district court cited
Bird’s prior convictions for trespassing at abortion clinics as
support for the special condition.
Bird argues that the special condition violates his First
Amendment rights because it was not narrowly tailored to serve a
significant government interest and because the special condition
was duplicative of the “standard conditions of supervision” set
forth in the judgment.
This Court reviews a district court’s entry of special
conditions of supervision for an abuse of discretion. United
States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992); United States
v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979). In light of Bird’s
prior activities involving criminal activity at or near both
abortion clinics and at the residence of an abortion provider and
his earlier refusal to accept any restrictions on his protest
activity, we cannot say that the district court abused its
discretion in determining that the 1,000 foot requirement was
reasonably necessary to prevent Bird from repeating the activity
for which he was convicted. Bird’s conviction for violent activity
under the Act constitutes a sufficient governmental interest to
justify a temporary limitation on Bird’s First Amendment rights.
See United States v. Turner, 44 F.3d 900, 903 (10th Cir.), cert.
denied, 115 S. Ct. 2250 (1995); United States v. Cothran, 855 F.2d
749, 751 (11th Cir. 1988). Bird’s contention that the provision of
a standard condition that Bird “shall not associate with any
38
persons engaged in criminal activity” invalidates the district
court’s more specific special condition is without merit. The
district court was within its authority conferred by 18 U.S.C. §
3583(d).
III.
Bird finally argues that the district court’s judgment is
unconstitutional and violative of due process because it states,
under “Nature of Offense,” that he was found guilty of “Blocking
Entrance to an Abortion Clinic” when, in fact, the indictment sets
forth his specific conduct as intimidating and interfering with Dr.
Herring’s provision of abortion services.
Bird’s claim is without merit. Bird was indicted for conduct
violative of 18 U.S.C. § 248(a)(1) (and the indictment references
that section alone). He was found guilty, after a jury trial, of
violating 18 U.S.C. § 248(a)(1). The judgment states that Bird was
found guilty of violating 18 U.S.C. § 248(a)(1). That the judgment
characterizes his offense as “blocking” an entrance to an abortion
clinic is, at most, a reference to the name of the statute that he
violated——the Freedom of Access to Clinic Entrances Act (FACE).
That Dr. Herring was able to make it past Bird’s bottle-throwing
attempt to stop his car from entering the America’s Women Clinic
does not invalidate the judgment. The district court’s judgment is
entirely consistent with both the nature of his offense and with
due process.
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
39
district court.
AFFIRMED
ENDRECORD
40
DeMOSS, Circuit Judge, concurring in part and dissenting in part:
I concur in subparts I(B), I(C), and I(D) and in parts II and
III of the majority opinion. I also concur in section I(A)(1)
(“Channels of Interstate Commerce”) and section I(A)(2) (“Persons
or Things in Interstate Commerce”) of the majority opinion, which
conclude that the Freedom of Access to Clinic Entrances Act, 18
U.S.C. § 248 et seq. (hereinafter “FACE”), was not validly enacted
under either of the first two categories of Commerce Clause
analysis set forth by the Supreme Court in United States v. Lopez,
514 U.S. 549 (1995). However, I cannot concur in the analysis and
holding in section I(A)(3) (“Interstate Activity that
‘Substantially Affects’ Interstate Activity”) of the majority
opinion, which concludes that the enactment of FACE falls within
part three of the Lopez analysis because Congress found a “national
commercial market in abortion-related services,” and that Congress
was justified in determining “that the regulation of intrastate
activity—the activity prohibited by the Act—was necessary to ensure
the availability (both in terms of access and price) of abortion
services in the national commercial market.” Ante at 22. Because
I disagree with the fundamental premises of these holdings, I write
now to explain my reasons.
I.
Rather than applying the clear and explicit criteria which the
Supreme Court set forth in Lopez, the majority considers the
constitutionality of FACE under the third Lopez category by
constructing an analysis built upon three essential premises:
1. “After Wickard—and its reaffirmance in Lopez—there
can be no question that Congress is able to regulate
noncommercial, intrastate activity that substantially affects
interstate commerce, an admittedly broad power not without
danger to the federalism that is the most fundamental
postulate of our constitutional order.” Ante at 17 (footnotes
omitted).
2. “[A] requirement for . . . a limiting principle in
the absence of a jurisdictional element, although not
expressly adopted by the Supreme Court, is the only legitimate
reading of the Wickard-Perez line of cases.” Ante at 18-19.
3. “[O]ur inquiry must determine not simply whether
§ 248(a)(1) proscribes intrastate activity that has (or might
have) a substantial effect on interstate commerce, but rather
whether there is a national commercial market in abortion-
related services such that the regulated conduct—considered in
light of the size and scope of the benchmark
market—substantially affects interstate commerce.” Ante at
20.
I disagree with each of these premises, which create fundamental
and logical deficiencies in the majority’s analysis.
There is no question that the conduct proscribed by FACE is
“intrastate and noncommercial conduct.” Injuring or threatening to
injure persons who seek to receive or deliver abortion services is,
by its very nature, an intrastate activity; such conduct inherently
involves face-to-face and person-to-person contact which must occur
42
in the same place at the same time. Likewise, such conduct does
not involve the transfer of money or any other consideration
between the perpetrator and the victim, and there is no commercial
motive prompting the perpetrator to engage in such conduct.
I think the first premise of the majority opinion as set forth
above is inaccurate in two respects. First, I do not read Lopez as
an affirmance of Wickard. Rather, I see Lopez as a
reinterpretation of Wickard which focuses on what the Court now
says is the essential ingredient for Congress to be able to
regulate intrastate noneconomic conduct which substantially affects
interstate commerce. Particularly, the proscribed intrastate,
noncommercial activity must be “an essential part of a larger
regulation of economic activity, in which the regulatory scheme
would be undercut unless the intrastate activity were regulated.”
Lopez, 514 U.S. at 561. The majority recognizes this essential
ingredient in the second paragraph of its discussion of “intrastate
activity that substantially affects interstate activity,” see ante
at 15, but then blithely ignores the fact that FACE is not a part
of any larger regulatory scheme, and moves on to discuss the need
for a “limiting principle,” as indicated by the majority’s second
premise above.
The only relevant “limiting principle” is the one dictated by
the Supreme Court’s Lopez decision. The Lopez Court adopted a new
reading of the Wickard-Perez line of cases by specifying that, for
Congress to be able to regulate intrastate and noncommercial
conduct under the Interstate Commerce Clause, such conduct must be
43
“an essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate
activity were regulated.” Id. FACE does not meet these criteria.
The legislation is not an essential part of a larger regulatory
scheme which would be undercut if Congress does not proscribe with
criminal sanctions the intrastate and noncommercial conduct which
FACE addresses.
Consequently, the majority errs in engaging in an examination
of “the congressional findings, the committee reports, and the
relevant testimony,” ante at 20, to determine whether Congress
found a national commercial market in abortion-related services,
which would serve as the “limiting factor” that would minimize the
danger to federalism. There is absolutely nothing in the Supreme
Court’s Lopez decision that speaks to the majority’s concept of a
“national market” as being a limiting factor. As the majority
opinion indicates, this “national market” limiting concept is a
leftover argument from our Circuit’s panel opinion in Lopez. See
United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993), aff’d on
other grounds, 514 U.S. 549 (1995). In my view, to the extent that
the “national market” concept appears in our Circuit’s Lopez
opinion, it is dicta. Regardless, when the Supreme Court decided
Lopez, it provided a new framework for appraising legislation under
the Commerce Clause, and it did not include the “national market”
consideration in its own analysis, which necessarily supersedes the
earlier analysis from this Circuit. See, e.g., United States v.
Pettigrew, 77 F.3d 1500, 1511 n.1 (5th Cir. 1996) (“While . . . one
44
panel of this Court is generally powerless to overrule the previous
decision of another panel absent rehearing by the full Court
sitting en banc, an exception to this rule arises when there has
been an intervening decision by the United States Supreme Court
overriding the earlier decision.”).
Furthermore, neither the Fifth Circuit’s Lopez opinion, nor
the majority opinion in this case, establish any criteria to define
what is referred to as a “national market.” The words “national
market” invoke the image of something like the New York Stock
Exchange, the Chicago Board of Trade, or the Commodities and
Futures Exchange. These are national markets which operate through
brokers and dealers to bring buyers and sellers together and
produce an established range of bid and ask prices as reflected by
current transactions in the item being traded. It seems to me that
at the very least, a “national market” requires a product or
commodity which has a high degree of fungibility. For example, a
share of stock in U.S. Steel can be sold on a national market by a
seller in California to a buyer in New York in reliance upon the
fact that the share of stock represents the same thing in both
places. Similarly, a bushel of wheat grown in Nebraska will be the
same as a bushel of wheat grown in Kansas once the farmers who grew
each bushel have moved them into the national market. There is
nothing in the Congressional Record that establishes that one
abortion procedure is just like every other abortion procedure. To
the contrary, an abortion is a unique, personal, and highly
individualized procedure.
45
In addition to fungibility, a primary function of a “national
market” is to determine a unit price for each commodity based upon
the most recent sales of that commodity, without distinction as to
whether that commodity was grown or manufactured in Texas or was
grown or manufactured in Michigan. The majority says that “Wickard
itself offered, as a limiting principal, the national wheat market”
and “Perez cited the national market for commercial credit.” See
ante at 19. But there is a serious distinction between those types
of national markets and a “national market in abortion-related
services.” An abortion is a medical/surgical procedure performed
in a hospital or clinic by a provider on a pregnant woman. There
is no product or commodity which results from this procedure. When
a woman arranges to have an abortion performed, the subject of the
arrangement is a personal service that is to be provided. When the
service is rendered and the fee is paid, the abortion has no
ongoing value or marketability.
I recognize, of course, that the majority has concluded that
Congress found a national market for abortion services. See ante
at 22-24. I question the factual accuracy of this conclusion. The
only findings which the full Congress made relating to FACE are
those identified in the Conference Committee Report. See ante 5
n.2. Because the Conference Committee made these express findings,
we are bound to view these findings as the only findings which
Congress made. Therefore, in determining whether Congress found a
national market for abortion services, we can look only to the
Conference Committee Report and the findings set forth therein.
46
The words “national market for abortion-related services” do
not appear anywhere in these five Conference Committee findings.
The only one of these five findings which even mentions the term
“interstate commerce” is the third one, which states simply that
anti-abortion violence “burdens interstate commerce by forcing
patients to travel from states where their access to reproductive
health services is obstructed to other states.” H.R. CONF. REP. NO.
103-488, at 7 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724. The
mere fact that some individuals choose to or are forced to travel
interstate to receive abortions does not establish that there is a
“national market” for abortions. Nothing in the Conference
Committee’s statement of findings speaks to whether abortion
services are fungible, and nothing in this finding speaks to the
question of whether the price or availability of abortion services
in New York City is the same as that in Los Angeles or in Des
Moines, Iowa.
For the foregoing reasons, I do not agree that the presence of
a national market is the relevant inquiry under part three of the
Lopez analysis. Furthermore, assuming that the presence of a
national market is determinative, I am unable to concur in the
majority’s conclusion that Congress found a “national market for
abortion-related services,” which is the keystone of the majority’s
determination that FACE is a permissible exercise of Congress’s
power under the Commerce Clause as described in part three of
Lopez.
47
II.
In my view, FACE cannot survive Lopez analysis because the
statute is distinguishable from the permissible regulations of
conduct that substantially affects interstate commerce in four
important aspects. First, FACE is a criminal statute that by its
terms has nothing to do with commerce. See Lopez, 514 U.S. at 560-
61. Second, FACE is not an essential part of any larger regulation
of economic activity, in which that larger regulatory scheme could
be undercut unless the intrastate activity were regulated. See id.
at 561. Third, FACE contains no jurisdictional element which would
ensure through case-by-case inquiry that the conduct prohibited
therein affects interstate commerce. See id. Finally, FACE
exercises general police powers by creating criminal sanctions in
an area where the states have historically been recognized to be
sovereign. See id. at 564-65. These four departures from the
Lopez standard are fatal to the constitutionality of FACE.
A. FACE Is a Criminal Statute That by Its Terms Has Nothing to Do
with Commerce.
The statutory text of FACE does not contain the word
“commerce,” nor the phrase “intrastate commerce,” nor the phrase
“interstate commerce.” The conduct prohibited by FACE—the use of
force to interfere with another person’s obtaining or providing
reproductive health services—does not inherently involve conduct
which is a part of any commercial activity. In fact, the
prohibitions of FACE apply to a nonprofit, charitable facility that
provides abortions for free just as they apply to a clinic that
48
charges a fee for providing abortion services.
Also, the prohibited conduct does not have any commercial
purpose of its own. The commercial nature of the regulated
activity is an important consideration in the substantially-affects
prong of the Lopez analysis. See, e.g., Lopez, 514 U.S. at 560
(“Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained.”
(emphasis supplied)). The activity regulated by FACE, the use of
force, threats, or intimidation to injure, intimidate, or interfere
with the persons identified by the statute, is behavior that is not
commercial by nature.
Despite the majority’s protest to the contrary, see ante at 21
n.13, there is no difference between the prohibitions in FACE and
a statute that might federalize murder on the grounds that killing
people substantially affects interstate commerce. The majority’s
suggested distinction, that the FACE prohibitions have “a
relatively narrow common goal or motivation and are all directed at
a relatively narrow common set of victims, and further . . . many
of the proscribed offenses involve common perpetrators traveling in
interstate commerce and victims engaged in interstate commerce,”
ante at 21 n.13, is untenable. Our panel is in agreement that FACE
does not fall within part two of the Lopez analysis, the prong for
persons or things in interstate commerce. Yet the majority’s
purported distinction relies on the presumed involvement of
“perpetrators engaged” and “victims engaged” in interstate
commerce. As the majority itself notes, “[c]ongressional
49
regulation or protection of persons or things that move in
interstate commerce must ensure that, in fact, a particular
‘threat’—whether posed by an interstate or intrastate
activity—actually threatens persons or things with a plain and
clear nexus to interstate commerce.” Ante at 12. FACE contains no
such “jurisdictional nexus.”
The approval of legislation like FACE opens the door to
general federalization of felonies. Lopez reaffirms that this sort
of legislation is not envisioned by the Commerce Clause. The
criminalization of noncommercial conduct by FACE is one important
distinction between FACE and the category of legislation described
in part three of Lopez.
B. FACE Is Not an Essential Part of a Larger Regulation of
Economic Activity, in Which the Regulatory Scheme Could Be Undercut
Unless the Intrastate Activities Were Regulated.
There is no national regulatory scheme regarding the provision
of abortion services. The federal government does not license
abortion clinics, does not approve the training of abortion
providers, and does not regulate the delivery of abortion services
to ensure that any minimum health standards are met. The federal
government has not created any administrative agency nor designated
any department of the federal government to regulate the abortion
industry in order to stabilize the supply of abortion services or
encourage the demand for such services.
In short, there is no general federal regulatory scheme
relating to the abortion industry. Congress has made no finding to
50
the contrary. FACE cannot, therefore, be an essential part of any
general federal regulatory scheme, because none exists. It thus
goes without saying that the prohibited conduct in FACE does not,
as Lopez requires, undercut the enforcement of any general
regulatory scheme.
The majority recognizes the importance of this factor when it
quotes the operative language at the very beginning of its section
I(3), discussing the substantially-affects category of Commerce
Clause power. Ante at 15 (quoting Lopez, 514 U.S. at 561). But
the majority then proceeds to try to rationalize its way around
this specific language of Lopez by citing three earlier Supreme
Court opinions for the proposition that Congress can regulate
noncommercial local activity which “in the aggregate” substantially
affects interstate commerce: United States v. Darby, 312 U.S. 100
(1941); Wickard v. Filburn, 317 U.S. 111 (1942); and Perez v.
United States, 402 U.S. 146 (1971).
These three cases demonstrate the correctness of the Lopez
premise rather than an exception to it. In each of these cases
there was a comprehensive national regulatory scheme, and the
criminalized conduct was clearly defined as part of that regulatory
scheme. In Darby, the Supreme Court dealt with the wage and hour
laws of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The
defendant was an employer who failed to pay the statutory minimum
wages but went ahead and shipped his product in interstate
commerce. In Wickard, the Agricultural Adjustment Act of 1938
(“AAA”) was at issue. Filburn was a farmer whose farm fell under
51
the purview of the AAA and who had received an acreage allotment
under the AAA. The AAA expressly limited the ability of farmers to
raise a wheat crop for their own consumption and the Wickard case
validated that limitation. Finally, Perez arose in the context of
the Consumer Credit Protection Act, 18 U.S.C. § 891, with the
defendant being a loan shark who engaged in extortionate credit
transactions as therein defined. These cases deal directly with
conduct that might frustrate the efforts of a federal regulatory
system.
While I agree with the majority that Lopez’s reaffirmation of
the Wickard-Perez cases can be read as meaning that Congress can
“regulate noncommercial, intrastate activity that substantially
affects interstate commerce,” ante at 17, I see nothing in Lopez
that permits the elimination of the further requirement that such
“noncommercial, intrastate activity” must be “an essential part of
a larger regulation of economic activity.” Lopez, 514 U.S. at 561.
FACE stands alone as a criminal statute, unconnected to any larger
federal regulatory scheme. The statute purports to regulate
intrastate noncommercial activities and thus fails, for the reasons
noted above, to satisfy this requirement of Lopez.
C. FACE Contains No Jurisdictional Element Which Would Ensure,
Through Case-by-Case Inquiry, That The Prohibited Conduct Has a
Substantial Effect on Interstate Commerce.
It would have been a simple matter for Congress to have
included elements in FACE which would have provided a
“jurisdictional nexus.” These elements are ones which explicitly
52
tie the prohibited conduct in a criminal statute to interstate
commerce. The absence of a jurisdictional nexus was an important
factor in the Supreme Court’s disapproval of the Gun-Free School
Zones Act in Lopez. See Lopez, 514 U.S. at 561-62.
The simplicity with which FACE could have been
jurisdictionally limited is easily demonstrated. For example, the
statute defines the term “facility” as meaning “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.” 18 U.S.C. § 248(e)(1). Congress could
have qualified the definition by limiting it to facilities that
provide reproductive health services “to a person who has traveled
in interstate commerce in order to receive such services.”
Likewise, in § 248(a) (“Prohibited activities”), Congress could
have limited its prohibition to the use of force or physical
obstruction to injure, intimidate, or interfere with any person who
has traveled in interstate commerce to receive or provide abortion
services.
For whatever reason, Congress opted not to include
jurisdictional elements. As a consequence, this is yet another
factor that distinguishes FACE from the category of legislation
permitted as regulation of intrastate activity which substantially
affects interstate commerce.
D. FACE Intrudes on Issues Which Are Historically Local Concerns
and Outside the Regulatory Power of the Federal Government Under
the Interstate Commerce Clause.
53
The regulation of violent actions by one person against
another through criminal laws is the most elemental component of
general police power. The prohibited conduct in FACE—the use of
force, threats of force, or physical obstruction to intentionally
injure, intimidate, or interfere with another person—are well
within the classic type of prohibitions which a state exercising
its general police power may adopt. In its Lopez decision, the
Supreme Court repeatedly indicated that the Congress does not have
a general police power and that such power rests exclusively with
the states. See Lopez, 514 U.S. at 561 n.3 (“Under our federal
system, the ‘“States possess primary authority for defining and
enforcing the criminal law.”’” (quoting Brecht v. Abrahamson, 507
U.S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128
(1982)))); id. at 564 (“Under the theories that the Government
presents . . . it is difficult to perceive any limitation on
federal power, even in areas such as criminal law enforcement or
education where States historically have been sovereign.”); id. at
566 (“The Constitution . . . withhold[s] from Congress a plenary
police power that would authorize enactment of every type of
legislation.” (citing U.S. CONST., art. 1, § 8)); id. at 567 (“[T]o
uphold the Government’s contentions here, we would have to pile
inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general
police power of the sort retained by the States.”).
The Congress was obviously motivated to enact FACE by the
desire to protect persons seeking to obtain or perform abortion
54
services. But this area is distinctly within the province of local
law. The Lopez Court considered family law to be the
quintessential example of such a local concern, see id. at 564, and
the action of obtaining an abortion results from what is
essentially a family decision. That the regulation of abortion in
particular is a local issue is borne out by the history. Before
Roe v. Wade, 410 U.S. 113 (1973), the states were prohibiting and
regulating abortions by state statute. In holding these state
statutes unconstitutional, the Supreme Court grounded its decisions
in the liberty or privacy elements of the First and Fifth
Amendments as made applicable to the states by the Fourteenth
Amendment. See Roe, 410 U.S. at 152-53. Neither in Roe nor in any
of its progeny did the Supreme Court ever mention the Commerce
Clause (or the dormant commerce clause), nor did the Supreme Court
suggest that these state statutes were unconstitutional because of
their intrusion on interstate commerce nor upon any “national
market” in the delivery of abortion services. Even today, in the
wake of Roe and Planned Parenthood v. Casey, 505 U.S. 833 (1992),
many states have statutes which regulate the circumstances of
access to abortions and the conditions under which abortions may be
delivered. The federal government has no such general abortion
regulation.
Both the regulation of violent acts among citizens and the
regulation of abortion services are areas of distinctively local
concern. The prohibitions imposed by FACE bear all of the
characteristics of enactments of police power. Lopez explicitly
55
warns against this variety of legislative excess, making this
factor yet one more important distinction between FACE and the laws
which have been approved as permissible regulations of intrastate
conduct that substantially affects interstate commerce.
E. FACE Is Unconstitutional.
Since FACE has the same defects and deficiencies which led the
Supreme Court to conclude in Lopez that the Gun-Free School Zones
Act was unconstitutional, I would hold that FACE is likewise
unconstitutional. It is not clear whether each of these four
distinctions, standing alone, would exclude legislation from the
third category of Commerce Clause legislation identified in Lopez.
As the Lopez Court itself noted, “[t]hese are not precise
formulations, and in the nature of things they cannot be.” Lopez,
514 U.S. at 567. However, the presence of all four of the above-
detailed factors in this case leaves no doubt that FACE is
unconstitutional.
III.
Because the majority concludes that the Commerce Clause gave
Congress the requisite authority to adopt FACE, they “pretermit the
substantially more questionable assertion of congressional
authority [under Section Five of the Fourteenth Amendment] to
criminalize purely private conduct (not directed at state property
or facilities).” Ante at 31. Since I would conclude that the
Commerce Clause does not permit Congress’s passage of FACE, and
56
since supporting FACE under Section Five of the Fourteenth
Amendment was clearly raised in this appeal, I am not at liberty to
pretermit the latter question. However, in light of well-
established principles which were recently reaffirmed by the
Supreme Court’s decision in City of Boerne v. Flores, 117 S. Ct.
2157 (1997), I conclude that Section Five of the Fourteenth
Amendment does not empower Congress to enact FACE.
FACE purports to criminalize the conduct of private parties
for conduct which is not directed at state property or facilities.
Plainly, Section Five of the Fourteenth Amendment does not
contemplate the passage of such a law. It provides that “Congress
shall have the power to enforce, by appropriate legislation, the
provisions of this article.” U.S. CONST. amend. XIV, § 5. The
“provisions” which Section Five empowers Congress to enforce are
directed at the states. See U.S. CONST. amend. XIV, § 1 (“No State
shall . . . deprive any person of life, liberty, or property,
without due process of law . . . .”). As the Supreme Court made
clear in City of Boerne, Section Five of the Fourteenth Amendment
“did not authorize Congress to pass ‘general legislation upon the
rights of the citizen, but corrective legislation; that is, such as
may be necessary and proper for counteracting such laws as the
states may adopt or enforce, and which, by the amendment, they are
prohibited from making or enforcing.’” City of Boerne, 117 S. Ct.
at 2166 (quoting The Civil Rights Cases, 109 U.S. 3, 13-14 (1883)).
Section Five thus was not intended to confer on the federal
government a police power over all matters related to the
57
individual rights contemplated by the Fourteenth Amendment.
After City of Boerne, it is clear that acts passed pursuant to
Section Five must be remedial in nature. This is not the case with
FACE, which seeks to vindicate Fourteenth Amendment rights through
direct legislation affecting individual conduct, rather than by
providing a remedy for state violations. Thus, the enactment of
FACE cannot be justified as an exercise of the enforcement power
under the Fourteenth Amendment.
It is interesting to note that the same Congress which passed
FACE also passed the Religious Freedom Restoration Act of 1993, 107
Stat. 1488 (former 42 U.S.C. § 2000bb et seq.) (hereinafter,
“RFRA”), the statute at issue in City of Boerne. With each of
these laws, Congress was attempting to change through legislation
the result of a prior Supreme Court decision: with FACE, that prior
decision was Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263
(1993); and with RFRA, it was Employment Division v. Smith, 494
U.S. 872 (1990). Just as the Supreme Court in Lopez explained the
limits on Commerce Clause powers, so too did it in City of Boerne
explain the limitations on the powers bestowed by Section Five of
the Fourteenth Amendment. Both Lopez and City of Boerne reflect
what I believe to be a significant trend on the part of the Supreme
Court in articulating a renewed consciousness of the fundamental
principles of our Constitution, that is, that our federal
government is a government of limited powers, federalism has a
significant place in constitutional analysis, and the separation of
powers between the branches of the federal government must be
58
respected.
IV.
For these reasons, I respectfully dissent from the majority’s
conclusion that FACE is constitutional.
59