Appendix — American Life League, Inc. v. Reno

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

sete,

AMERICAN Lire LeacuE,

INCORPORATED; Davin G. P.

ENGLEFTELD; Patricia LOHMAN:

Geratp Weynes, Reverend:

AnToineTTE C, Cleary; PATRICIA

Savino,

Plaintiffs-Appellants,

Vv.

JANET RENO; NATIONAL ABORTION

FEDERATION; COMMONWEALTH ; No. 94-1869

Women’s Cunic; Caprro. Women’s

Center, INcorPorATED; GEORGE

Trier, Doctor; Susan WICKLUND,

Doctor; NATIONAL ORGANIZATION FOR

Women,

Defendants-Appellees.

AMERICAN Civic Liperties UNton:

ACLU FounpaTion oF Vinci,

Amici Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-94-700-A)

Argued: November 3, 1994

Decided: February 13, 1995

Before HALL and MICHAEL, Circuit Judges,

and CHAPMAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Hall and Senior Judge Chapman joined.

COUNSEL

ARGUED: Marion Edwyn Harrison, LAW OFFICES OF MARION

EDWYN HARRISON, Falls Church, Virginia, for Appellants. Mark

L Levy, Civil Division, UNITED STATES DEPARTMENT OF JUS-

TICE, Washington, D.C.; Deborah A. Ellis, NOW LEGAL

DEFENSE AND EDUCATION FUND, New York, New York, for

Appellees. ON BRIEF: Frank W. Hunger, Assistant Attorney Gen-

eral, Helen F. Fahey, United States Attomey, Mark B. Stern, Jonathan

R. Siegel, Civil Division, Deval L. Patrick, Assistant Atorney Gen-

eral, William R. Yeomans, Counsel to the Assistant Attomey General.

Civil Rights Division, UNITED STATES DEPARTMENT OF JUS-

TICE, Washington, D.C.; Martha F. Davis, NOW LEGAL DEFENSE

AND EDUCATION FUND, New York, New York; Catherine Albisa,

CENTER FOR REPRODUCTIVE LAW & POLICY, New York,

New York, for Appellees. Catherine Weiss, Louise Melling, Karen

Leiter, Reproductive Freedom Project, Steven R. Shapiro, AMERI-

CAN CIVIL LIBERTIES UNION FOUNDATION, New York, New

York; Stephen B. Pershing, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for

Amici Curiae.

OPINION

MICHAEL, Circuit Judge:

Plaintiffs, the American Life League, Inc. and five individuals, all

actively opposed to abortion, appeal from a judgment upholding the

validity of the Freedom of Access to Clinic Entrances Act of 1994

(the Access Act or Act), Pub. L. No. 103-259, 108 Stat. 694 (1994)

(to be codified at 18 U.S.C. § 248). We affirm.

In affirming we first conclude that the Access Act is within the

commerce power of Congress and that congressional action here was

picketing), we examine it under the First Amendment. Because we

find that the Act is content and viewpoint neutral, we subject it to

expression, and that it is narrowly tailored. We also conclude that the

Act is neither overbroad nor vague. The Act's liquidated damages

Provision also withstands the First Amendment challenge. Third, we

conclude that the Act does not violate the First Amendment’s Free

42 U.S.C. §§ 2000bb to 2000bb-4.

States District Court for the Eastern District of Virginia.

Plaintiffs allege the following in their second amended complaint.

Plaintiff American Life League, Inc. (ALL) conducts educational and

legislative activities "relating to the human rights of persons born and

unborn." The five individual plaintiffs, Antoinette C. Cleary, David

G. P. Englefield, Patricia Lohman, Patricia Savino and the Reverend

some ALL members have "demonstrated, prayed and sidewalk-

counseled within the vicinity of abortion clinics." Plaintiffs’ activities

Plaintiffs also allege that their continuing anti-abortion activities

put them in jeopardy of violating the Access Act. They claim that the

Act, by outlawing their activities, violates the Constitution and

RFRA.

—_—_—__ooo ee

Plaintiffs brought this action against Janet Reno, Attomey General

of the United States. The district court allowed five additional defen-

dants to intervene: the National Abortion Federation; the National

Organization for Women; Commonwealth Women’s Clinic and Capi-

tol Women’s Center, two reproductive health clinics that provide

counseling, birth control advice, contraceptives, medicine, pre-natal

care and abortions; and Dr. George Tiller and Dr. Susan Wickland,

two physicians who perform abortions. The district court accepted (as

did we) an amicus brief from the American Civil Liberties Union and

the ACLU Foundation of Virginia.

On June 1, 1994, five days after the complaint was filed, the Attor-

ney General filed a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). The district court acted with dispatch, holding a

hearing on June 10, 1994, and issuing an opinion and order dismiss-

ing the second amended complaint with prejudice on June 16, 1994.

See American Life League, Inc. v. Reno, 855 F. Supp. 137 (E.D. Va.

1994). Plaintiffs now appeal that order.

Congress passed the Access Act in response to protracted and

nationwide violence and access obstruction at facilities providing

abortions. Between 1977 and early 1993, more than 1,000 acts of vio- :

lence against abortion providers and more than 6,000 clinic blockades i

were reported in the United States. S. Rep. 117, 103d Cong. Ist Sess.

31 (1993); H. R. Rep. No. 306, 103d Cong. 2d Sess. 6-7 (1993) 5

reprinted in 1994 U.S.C.C.A.N. 699, 703. These acts included at

least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kid- E

nappings, 327 clinic invasions, and one murder." /d. Congress con-

cluded that state and local law enforcement agencies were often :

unable and sometimes unwilling to protect the patients and staffs of :

these clinics from violence and severe disruption. S. Rep. No. 117 at 5

5, 18-21; H. R. Rep. No. 306 at 10.

The Access Act aims to protect and promote public safety and

health "by establishing Federal criminal penalties and civil remedies i

for certain violent, threatening, obstructive and destructive conduct :

that is intended to injure, intimidate or interfere with persons seeking

to obtain or provide reproductive health services." Act, § 2. To that

end the Act provides criminal and civil penalties against anyone who:

(1) by force or threat of force or by physical obstruc-

(3) intentionally damages or destroys the Property of a

facility, or attempts to do SO, because such facility provides

reproductive health services . ees

Act, § 3(a).'

The Access Act defines its key terms. Act, § 3(e). The term "inte;-

fere with" means "to restrict a person’s freedom of movement." "Tn-

timidate" means "to place a person in reasonable apprehension of

bodily harm to him- or herself or to another." "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." "Repro-

ductive health services" means "reproductive health services provided

in a hospital, clinic, Physician’s office, or other facility, and includes

medical, surgical, counselling or referral services relating to the

human reproductive System, including services relating to pregnancy

or the termination of a pregnancy."

The Act also provides a tule of construction: "[nJothing in this sec-

tion shall be construed — (1) to prohibit any expressive conduct

(including peaceful picketing or other peaceful demonstration) pro-

"The Act also Prohibits the same activities if directed at (i) any person

lawfully exercising or seeking to exercise the right of religious freedom

at a place of religious worship or (ii) the Property of a place of religious

worship. Act, § 3(a). Those portions of the Act are not at issue ir this

ase.

tected from legal prohibition by the First Amendment to the Constitu-

tion." Act, § 3(d).

The criminal penalties prescribed by the Act vary with the nature

of the violation. For example, a first offense involving only a nonvio-

lent physical obstruction carries a penalty of imprisonment for not

more than six months or a fine of not more than $10,000. An offense

resulting in death carries a penalty of imprisonment for any term of

years or for life. Act, § 3(b).

The civil remedies prescribed by the Act include injunctive relief,

compensatory or statutory damages ($5,000 per violation), punitive

damages, and costs and fees. Act, § 3(c). These civil remedies are

available to any person injured in providing or obtaining services at

a reproductive health facility. Finally, the Act also authorizes civil

actions by the Attorney General of the United States or any State

Attomey General. /d.

We tum now wo plaintiffs’ several challenges to the Act.

Il.

As a threshold matter plaintiffs argue that Congress lacks the

power to pass the Access Act. The Act identifies the Commerce

Clause and section 5 of the Fourteenth Amendment as the sources of

congressional power in this instance. Act, § 2. We conclude that the

commerce power permits Congress to regulate activities affecting

reproductive health services. As a result, we need not reach plaintiffs’

argument that section 5 of the Fourteenth Amendment does not pro-

vide Congress with authority.

A federal statute is valid under the Commerce Clause if Congress

(1) rationally concluded that the regulated activity affects interstate

commerce and (2) chose a regulatory means reasonably adapted to a

permissible end. Hodel v. Virginia Surface Mining & Recl. Ass'n, 452

U.S. 264, 276 (1981).

health facilities engage doctors and other staff in an interstne market.

For example, Dr. David Gunn, who was murdered in Florida in 1993,

that interstate commerce was threatened. S. Rep. No. 117 at 31; H.R.

Rep. No. 306 at 8-9.

tional right to choose an abortion, (4) Protecting the safety of repro-

ductive health care Providers, and (5) protecting reproductive health

care facilities from physical destruction and damage.

Together, these findings, these means and these objectives are

more than ample to justify Congress's invocation of the commerce

power. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241

(1964); Katzenbach y. McClung, 379 U.S. 294 (1964),

In a final, brief subpoint under their argument that "there is no con-

Stitutional authority for [the Access Act]," plaintiffs urge us to reject

the Act as an unwarranted "incursion upon federalism and the federal

judiciary." Brief for Appellants at 39, 44. First, plaintiffs suggest that

any public safety problems at reproductive health facilities should be

handled under existing state laws. Second, they express concem that

the Access Act gives federal courts "undue jurisdiction" and will add

a flood of new cases tw already crowded federal dockets. We must

reject these arguments. Congress, not the courts, determines the need

for new federal laws. And Congress, subject only to Article III of the

Constitution, establishes the jurisdiction of the inferior federal courts.

See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226, 233-34 (1922);

Sheldon v. Sill, 49 U.S. (8 How.) 441, 448 (1850).

IV.

The Constitution ordains that "Congress shall make no law...

abridging the freedom of speech." U.S. Const. amend L. Plaintiffs

claim that the Access Act abridges this freedom.

We begin our consideration of plaintiffs’ freedom of speech claims

by repeating the elements of a basic offense under the Act. A violator

must (1) "by force or threat of force or by physical obstruction,” (2)

“intentionally injure[ }, intimidate[ }, or interfere[ ] . . . with any per-

son," (3) "because that person [the victim] is . . . obtaining or provid-

ing reproductive health services." Act, § 3a).

The government's first defense is that the Act does not implicate

the First Amendment at all; rather, it regulates conduct that is outside

the First Amendment. According to the government, the Act leaves

plaintiffs free to engage in any form of protected speech they choose.

In many respects the government is correct. The Access Act does

not prohibit protestors from praying, chanting, counseling, carrying

signs, distributing handbills or otherwise expressing opposition to

abortion, so long as these activities are carried out in a non-violent,

non-obstructive manner. What the Act does prohibit is force, the

threat of force and physical obstruction intended to deprive someone

of the lawful right to use or provide reproductive health services.

EE a

The use of force or violence is outside the scope of First Amend-

ment protection. Wisconsin v. Mitchell, 113 S$. Ct. 2194, 2199 (1993)

("a physical assault is not by any stretch of the imagination expressive

conduct protected by the First Amendment"). True threats of force

also lie outside the First Amendment. Watts v. United States, 394 U.S.

705, 707 (1969) (holding that "[wJhat is a threat must be distin-

guished from what is constitutionally protected speech"); see R.A.V.

v. City of St. Paul, 112 S. Ct. 2538, 2546-47 (1992). Finally, certain

physical obstructions, such as a blockade of pedestrian traffic, are not

protected by the First Amendment. See Cameron y. Johnson, 390 U.S.

611, 617 (1968) (holding that a statute which prohibited unreasonable

interference with access to a courthouse was a "valid law... and the

fact that free speech is intermingled with such conduct does not bring

with it constitutional protection").

Thus, the Act does target unprotected activities. But the Act cannot

escape First Amendment scrutiny entirely. The Act might incidentally

affect some conduct with protected expressive elements, such as

peaceful but obstructive picketing. The right to peaceful protest lies

near the heart of the freedom of speech. Accordingly, we examine the

Act under the First Amendment.

The first step in our First Amendment inquiry is to determine

whether the Act is content and viewpoint neutral. Plaintiffs argue that

the Act is a content- or viewpoint-based restriction because it outlaws

conduct for its anti-abortion message. If plaintiffs are correct, then we

Subject the Act to strict scrutiny. To pass this test a law must be nec-

essary to serve compelling governmental interests by the least restric-

tive means available. See, ¢.g., RA.V.,.112 S. Ct. at 2549-50 (1992);

Burson v. Freeman, 112 S. Ct. 1846, 1851 (1992) (plurality). If plain-

tiffs are incorrect, if the Act is content and viewpoint neutral, then we

subject it to intermediate scrutiny. To pass this test a law must be nar-

rowly tailored to serve substantial governmental interests. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Clark v.

Cammunity for Creative Non-Violence, 468 U.S. 288, 293 (1984).

The neutrality inquiry does not focus on the motive of the violator.

Rather, a statute regulating expressive conduct is neutral if it is justi-

10a

fied without reference to the content of the violator’s message or

point of view. Madsen v. Women's Health Center, Inc., 114 S. Ct

2516, 2523-24 (1994); Ward, 491 U.S. at 791. Congress’s purpose is

the main consideration. /d.

The Access Act identifies its purpose in plain language:

the purpose of this Act [is] to protect and promote public

safety and health and activities affecting interstate com-

merce by establishing Federal criminal penalties and civil

remedies for certain violent, threatening, obstructive and

destructive conduct that is intended to injure, intimidate, or

interfere with persons seeking to obtain or provide reproduc-

tive health services.

Act, § 2. The Act also includes rules of construction:

Nothing in this section shall be constued—

(1) to prohibit any expressive conduct (including peaceful

picketing or other peaceful demonstration) protected from

legal prohibition by the First Amendment to the Constitu-

uon;

(2) to create any new remedies for interference with activi-

ties protected by the free speech or free exercise clauses of

the First Amendment to the Constitution, occurring outside

a facility, regardless of the point of view expressed... .

Act, § 3(d). Together, the Act’s statement of purpose and rules of

construction indicate that the Act was not passed to outlaw conduct

because it expresses an idea. Instead, Congress passed the Act to pro-

mote public safety and health and to protect interstate commerce from

disruption.

Plaintiffs insist that these lofty statements of purpose and construc-

tion are subterfuge. They say Congress really intended to "suppress

only the anti-abortion side of a fierce national debate." Brief for

Appellants at 8. This argument ignores the Act’s substantive provi-

lla

sions. These unambiguous provisions do not target any message based

on content or viewpoint.

The Act protects reproductive health services and those who use

and provide them. Reproductive health services embrace "medical,

surgical, counseling, or referral services relating to the human

ductive system." Act, § 3(e). The Act thus protects access to all repro-

ductive health services, including both abortion and services

connected with carrying a fetus to term. It applies, for example, to

facilities opposing abortion and to facilities offering pregnant women

counseling about alternatives to abortion. For example, AAA Women

for Choice, Inc., a facility run by plaintiff Patricia Lohman, would be

protected. AAA Women for Choice offers "counsel, comfort and

alternatives other than abortion to pregnant women." Second

Amended Complaint at 4 6.

Moreover, the Act punishes anyone who engages in the prohibited

conduct. For example, anyone who, with the requisite intent, blocks

a person from entering a facility to obtain or provide reproductive

health services violates the Act. The viewpoint of the obstructer is

irrelevant. The Act forbids the obstructive conduct not because of the

content of any message that conduct might convey, but because of its

harmful effects.

Plaintiffs press on and say that the Act’s apparent neutrality is not

enough. They charge that the inclusion of protection for anti-abortion

Services is a ruse to make the Act look neutral. In reality, they argue,

the Act aims to suppress the anti-abortion movement. They note that

one is a wrongdoer under the Act only when he commits the pro-

scribed conduct because the victim is obtaining or providing repro-

ductive health services. The "because" element is the Act’s Achilles’s

heel, according to plaintiffs. They Say only people who oppose abor-

tion will be punished under the Act: those who protest at reproductive

health facilities for reasons unrelated to the abortion issue will never

violate the law. As examples, plaintiffs Say those protesting at clinics

on labor and environmental issues would not violate the Act. On this

basis plaintiffs conclude that the Act is aimed at their motives for pro-

testing and thus at their message and its viewpoint.

This lack-of-neutrality argument overlooks the distinction between

what the Act does and does not regulate. Again, the Act does not pro-

12a

hibit peaceful protestors from praying, chanting, counseling, carrying

signs, distributing handbills, or otherwise expressing their opposition

to abortion. What the Act does prohibit is force, the threat of force,

and physical obstruction, when carried out because a person is using

or providing reproductive health services. The "because" or motive

element does not render the Act content or viewpoint based. As we

explain below, the Act’s motive requirement simply narrows its

reach, and this narrowing is within congressional prerogative.

In Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993), the Supreme

Court upheld a Wisconsin law that enhanced the sentence for the

crime of aggravated battery when the defendant intentionally selected

his victim because of the victim's race. Just like plaintiffs here, the

defendant argued that he was being punished for his motive for act-

ing. The unanimous Supreme Court rejected that argument, saying

{motive plays the same role under the Wisconsin statute as it does

under the federal and state anti-discrimination laws, which we have

previously upheld against constitutional challenge." Jd. at 2200. The

Court reasoned that "the penalty-enhancement statute [was] aimed at

conduct unprotected by the First Amendment." Jd at 2201. Thus,

Wisconsin’s statute did not target conduct on the basis of its expres-

sive elements. Mitchell’s conclusion was consistent with the Supreme

Court’s prior recognition that "where government does not target con-

duct on the basis of its expressive content, acts are not shielded from

regulation merely because they express a discriminatory idea or phi-

losophy." R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2546-47 (1992).

As the Supreme Court observed in both Mitchell and R.A.V., the

distinction between targeting the expressive elements of conduct and

targeting the proscribable elements of conduct undergirds many fed-

eral laws. For example, Title VII includes a motive requirement. Title

VO makes it unlawful for an employer to discriminate against an

employee "because of such individual’s race, color, religion, sex, or

national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The

Supreme Court has held that Title VII does not infringe an employer’s

First Amendment rights. Hishon v. King & Spalding, 467 U.S. 69, 78

(1984). Another example is a provision in the Fair Housing Act that

prohibits using force or the threat of force to injure, intimidate, or

interfere with a person "because" he is participating in certain housing

programs. 42 U.S.C. § 3631 (emphasis added). That provision,

13a

despite its motive requirement, has been upheld as a content- and

viewpoint-neutral regulation. United States v. Hayward, 6 F.3d 1241,

1249-51 (7th Cir. 1993), cert. denied, 114 S. Ct. 1369 (1994); United

States v. Gilbert, 813 F.2d 1523, 1529-31 (9th Cir.), cert. denied, 484

U.S. 860 (1987).?

Thus, Congress may enact laws to Punish proscribable conduct

even though the conduct is motivated by certain biases or beliefs.

More important for this case, Congress can exercise its prerogative to

Single out and address "conduct thought to inflict greater individual

and societal harm" by using a motive requirement to narrow the reach

of a law. Mitchell, 113 S. Ct. at 2201; see FCC v. Beach Communica-

tions, Inc., 113 S. Ct. 2096, 2102-03 (1993). Indeed, in passing the

Access Act Congress determined that intentional interference with

access tO reproductive health services is more damaging to federal

interests than activity that affects such access only incidentally, e.g.,

labor or environmental protesting. We repeat, Congress may choose

to legislate only against actions it considers to be more serious. More-

Over, a Statute is not rendered non-neutral simply because one

ideologically defined group is more likely to engage in the proscribed

conduct. See United States y. O’Brien, 391 U.S. 367 (1968) (uphold-

ing a statutory prohibition on burning draft cards despite the fact that

most violators would likely oppose the Viemam War).

For these reasons, we find that the Access Act is content and view-

point neutral. The Act is justified without reference to the violator’s

viewpoint or the content of his message. Therefore, we subject the

Act to intermediate scrutiny.

threat of force [to] willfully injure }, intimidate{ }, or interfere{ ] with

. - for the purpose of interfering with" a person's right to vote) (empha-

Sis added).

l4a

Intermediate scrutiny is required when a statute potentially regu-

lates conduct that has protected expressive elements. The intermediate

scrutiny test was first enunciated by the Supreme Court in O’Brien.

O’Brien was convicted under a federal statute which made it a

crime to destroy a draft card knowingly. In the Supreme Court

O’Brien argued that his "act of burning his (draft card] was protected

‘symbolic speech’ within the First Amendment." O’Brien, 391 U.S.

at 376. The Supreme Court upheld the conviction, noting that Con-

gress could regulate conduct that has an expressive element, given

sufficient justification:

even on the assumption that the alleged communicative ele-

ment in O’Brien’s conduct is sufficient to bring into play the

First Amendment, it does not necessarily follow that the

destruction of a [draft card] is constitutionally protected

activity. This Court has held that when "speech" and "non-

speech" elements are combined in the same course of con-

duct, a sufficiently important governmental interest in

regulating the nonspeech element can justify incidental limi-

tations on First Amendment freedoms.

Id. The Court then laid down a test for reviewing a statute, such as

the Access Act, that may incidentally affect speech as it regulates

conduct. Under O’Brien’s test such a statute passes constitutional

muster “if it [1] furthers an important or substantial governmental

interest; if [2] the governmental interest is unrelated to the suppres-

sion of free expression; and if [3] the incidental restriction on alleged

First Amendment freedoms is no greater than is essential to the fur-

therance of that interest." /d. at 377.

O’Brien’s first prong asks whether the Act furthers important or

substantial government interests. For easier discussion we group the

several interests suggested by the government.

15a

One group relates to protecting public health, safety and com-

merce. This interest includes Protecting patients and staff from vio-

lence and harm and protecting reproductive health facilities from

physical destruction or damage. It also includes protecting interstate

patient traffic and the interstate market for the services of doctors,

nurses, Counselors, and other staff.

A second group of interests relates to protecting women and men

from violence and threats in the exercise of their rights. The Supreme

Court has recognized that goverment "has a Strong interest in pro-

tecting a woman's freedom to seek lawful medical or counseling ser-

vices in connection with her pregnancy." Madsen v. Women’s Health

Center, Inc., 114 S. Ct. 2516, 2526 ( 1994). This freedom includes the

constitutional right to terminate a pregnancy. See Roe v. Wade, 410

U.S. 113 (1973); Planned Parenthood v. Casey, 112 S. Ct. 2791

(1992). Also, both women and men have the constitutional right to

obtain and use contraceptives. See Eisenstadt v. Baird, 405 U.S. 438,

440, 446 (1972); Casey, 112 S. Ct. at 2807. They should be able to

use reproductive health facilities to exercise this right.

Together, or separately, these interests are significant. The govern-

ment has a substantial interest in acting tO protect them, as Congress

did by passing the Access Act.

O’Brien next asks whether the government's interests relate to sup-

pressing free expression. This analysis is essentially the same as the

content- and viewpoint-neutrality test we applied earlier. See IV.B.,

supra. We concluded that the Act was justified without reference to

the message or viewpoint of anyone who might violate it. Relying on

the Act’s plain language, we also noted that its purpose was not

related to suppressing expression. Instead, we found that the Act out-

lawed certain actions because of their harmful effects. We next

‘Tejected plaintiffs’ contention that the Act’s avowed purpose shrouded

an illicit purpose. We believe this analysis is sufficient for the Act to

pass the second prong of the O’Brien test?

*We add a comment here about the-government’s acknowledgment

that "the national campaign of violent and obstructive pro-life protests

16a

Under O'Brien's third prong we consider whether the incidental

restriction on alleged First Amendment freedoms is no greater than

required to meet the government’s interests. This has been interpreted

as a requirement for "narrow tailoring." Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989). The statute must not "burden sub-

stantially more speech than is necessary to further the government's

legitimate interests." /d.

The Act meets this standard. Much of the conduct (force and vio-

lence) outlawed under the Act lacks any protected expressive element

at all. Of course, peaceful but obstructive protesting, which plaintiffs

argue has expressive elements, could run afoul of the Act. For ex-

ample, protesters blocking a clinic door as they pray might violate the

Act's prohibition on physical obstruction. However, such a violation

would be simply a consequence of the government's lawful aim to

protect access to reproductive health services. And the Act proscribes

no more expressive conduct than necessary to protect safe and reliable

access to reproductive health services. After all, the Act leaves open

ample alternative means for communication. In a non-violent, non-

obstructive manner, protestors may still stand outside reproductive

health facilities and express their anti-abortion message. They may

still proclaim their views and make their pleas by voice, signs, hand-

bills. symbolic gestures and other expressive means.‘

In sum, the Access Act serves substantial government interests

such as preventing violence, preserving public access to reproductive

health services, and protecting citizens in their exercise of constitu-

was the catalyst that led to passage of the Act." Brief for Appellee United

States at 22 n.7. This acknowledgment does not mean that Congress

acted to curb protected expression. Protecting reproductive health facili-

ties, patients, and providers is a legal purpose, unrelated to suppressing

free expression.

‘Our conclusion that the Act is narrowly tailored is also supported by

the reasoning that compels us not to apply the overbreadth doctrine. See

1V.D., infra.

17a

tional rights. It is not aimed at expression, and it is narrowly tailored.

It passes O’ Brien’s test.

Plaintiffs next assert that the Act is unconstitutionally overbroad

and vague. They claim that "[{t}housands of persons who daily engage

in peaceful activities around abortion clinics now risk arrest [and]

prosecution" for exercising their First Amendment rights. Brief for

Appellants at 29. They specifically point to "sign-carrying . . . and

rosary-Carrying processions outside clinics." /d. at 28. Plaintiffs’ argu-

ment is this: the Act’s alleged overbreadth and vagueness will have

a "chilling effect" on such activities.

As for overbreadth, "{ojnly a statute that is substantially overbroad

may be invalidated on its face." Houston y. Hill, 482 U.S. 451, 458

(1987) (citations omitted). Such an invalid Statute proscribes so much

protected speech that it must be struck down entirely. Accordingly,

the overbreadth doctrine is "strong medicine" to be applied "sparingly

and only as a last resort." Broadrick v, Oklahoma, 413 U.S. 601, 613

expression, such as peaceful picketing, that picketing would be pro-

hibited only in the most narrow and justifiable circumstances. Under

the Act. "physical obstruction" involves intentionally "Tendering

impassable ingress or egress from a facility . . . or rendering passage

to or from such a facility . . . unreasonably difficult or hazardous."

Act, § 3(e)(4). Thus, it is difficult to see how the Act is substantially

overbroad in relation to its legitimate scope of Outlawing violence and

barriers to access.

The vagueness doctrine is concemed with clarity. A statute is

unconstitutionally vague if it does not give a "person of ordinary

intelligence a reasonable Opportunity to know what is prohibited

- . « «" Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The

vagueness doctrine protects both free speech and due process values.

The Access Act’s anti-obstruction Provisions closely resemble a

Statute the Supreme Court upheld against a vagueness challenge in

Cameron v. Johnson, 390 U.S. 611 (1968). In Cameron arrested civil

18a

rights protestors challenged Mississippi's Anti-Picketing Law, which

provided:

1. It shall be unlawful for any person, singly or in con-

cert with others, to engage in picketing or mass demonstra-

tions in such a manner as to obstruct or unreasonably

interfere with free ingress or egress to and from any public

premises ....

Id. at 613. The Supreme Court rejected the vagueness challenge on

the grounds that the terms "obstruct," "unreasonably" and "interfere

with" were perfectly clear, widely used, and well understood. Accord-

ing to the Court, the statute "precisely delineates its reach in words

of common understanding." /d. at 616.

Like the Anti-Picketing Law upheld in Cameron, the Act here

speaks in clear, common words. Moreover, the Act goes beyond the

statute in Cameron by defining many of its terms. The Act defines

"interfere with" to mean "restrict a person’s freedom of movement."

Act, § 3(e)(2). It defines "intimidate" to mean "place a person in rea-

sonable apprehension of bodily harm... ." Act, § 3(¢)(3). These and

other narrowing definitions in the Act should inform those opposed

to abortion that they will not offend this law by peaceful, non-

obstructive picketing.

We conclude that the Access Act is neither overbroad nor vague.

Plaintiffs’ final freedom of expression challenge to the Access Act

concerns a civil damage provision. The Act authorizes injured persons

to file private actions, and it permits them to elect to recover $5,000

per violation in lieu of actual damages. Act, § 3(c). Plaintiffs claim

that this damage provision is unconstitutional under NAACP v. Clai-

borne Hardware Co., 458 U.S. 886 (1982).

Specifically, plaintiffs say that under Claiborne Hardware only

actual damages caused by unprotected conduct may be recovered. But

that is not what Claiborne Hardware says. Claiborne Hardware

19a

involved a money judgment imposing joint and several liability

against ninety-two participants in a mass boycott of white-owned

businesses. The Supreme Court addressed whether all members of the

group could be held liable for the violent acts of a few. "Civil liability

may not be imposed merely because an individual belonged to a

group,” the Court said. /d. at 920. The Court did not consider what

the constitutional measure of damages might be after a defendant was

found liable for an unprotected act.

The Act here does not subject anyone to damages caused by pro-

tected expression. It does subject violators to limited liquidated dam-

ages for unprotected conduct. We know of no tule prohibiting a

_ liquidated damages provision that may in a particular case impose

more than actual damages for unprotected activity.®

Plainuffs’ last claims concem protections afforded religion. Specif-

ically, they argue that the Access Act offends the First Amendment’s

Free Exercise Clause and the Religious Freedom Restoration Act of

1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4.

The Free Exercise Clause provides that "Congress shall make no

law . . . prohibiting the free exercise" of religion. U.S. Const. amend.

I. The clause forbids government from adopting laws designed to sup-

press religious belief or practice. Church of Lukumi Babalu Aye, Inc.

v. Hialeah, 113 S. Ct. 2217, 2222 (1993). However, a neutral, gener-

ally applicable law does not offend the Free Exercise Clause, even if

the law has an incidental effect on religious practice. Employment

Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 878-79

(1990).

Relying on Church of Lukumi Babalu Aye, plaintiffs claim that the

Access Act violates the Free Exercise Clause. They say it aims to

‘The reasonableness of the amount ($5,000) of the liquidated damages

per violation is not at issue here.

20a

restrict nonviolent protest because of the protestors’ religious motiva-

_ tion. In Church of Lukumi Babalu Aye the Supreme Court examined

city ordinances aimed at suppressing the Santeria religion. The ordi-

nances prohibited ritual animal slaughter, a Santeria religious prac-

tice. The ordinances carefully outlawed only animal sacrifice and the

possession of animals for sacrificial purposes. They did not outlaw

hunting, fishing, or the killing of animals for food. In short, the ordi-

nances accomplished a religious gerrymander. They singled out reli-

gious practices for discriminatory treatment. The Supreme Court

subjected the ordinances to the same level of exacting (strict) scrutiny

it applies to content-based restrictions on speech. Church of Lukumi

Babalu Aye, 113 S. Ct. at 2233-34. The ordinances were held uncon-

stitutional. :

By contrast, the Access Act punishes conduct for the harm it

causes, not because the conduct is religiously motivated. See [V.B.,

supra. By necessity, then, the Act does not punish religious belief. It

proscribes violent, forceful or threatening conduct without regard to

expressive content or viewpoint. See [V.B., supra. Under the Act it

makes no difference whether a violator acts on the basis of religious

conviction or temporal views. The same conduct is outlawed for all.

Therefore, the Act is a generally applicable law, neutral toward reli-

gion. It does not offend the First Amendment’s Free Exercise Clause.

The Religious Freedom Restoration Act (RFRA) mandates that

government shall not "substantially burden a person’s exercise of reli-

gion" unless the government demonstrates that the burden furthers a

"compelling governmental interest" by the "least restrictive means."

42 U.S.C. § 2000bb-1.

The Access Act and RFRA were passed by the same Congress, but

RFRA was passed first. RFRA’s rule of construction says that federal

statutes enacted after RFRA are subject to its provisions unless the

later statute "explicitly excludes [RFRA’s] application by reference to

{the RFRA statute]." /d. at § 2000bb-3(b). The Access Act does not

exclude RFRA’s application, so we examine plaintiffs’ claim that the

Access Act violates RFRA.

2la

The threshold inquiry under RFRA concems burden. If a statute

does not substantially burden a religious practice, then the statute

does not implicate RFRA.

Plaintiffs’ complaint alleges that they do not "condone . . . non-

peaceable or violent conduct." Accordingly, a proscription on vio-

lence and force cannot substantially burden their religious exercise.

However, plaintiffs’ complaint also alleges that their opposition to

abortion (on religious grounds) requires them to obstruct physically,

through peaceful picketing, access to clinics Offering abortion ser-

vices. We will assume that this allegation, coupled with plaintiffs’

assertion that the Access Act violates their RFRA rights, satisfies

their obligation to plead a substantial burden on their religious exer-

cise. See Fed. R. Civ. P. 8. This requires us to move to RFRA’s next

level: an examination of whether the alleged substantial burden

imposed by the Access Act furthers a "compelling governmental

interest" by the "least restrictive means" available.

We begin with some background. Congress passed RFRA as a

response to Employment Div., Dep't of Human Resources v. Smith,

494 U.S. 872 (1989). The "findings" section of RFRA states that

Smith "virtually eliminated the requirement that government justify

burdens on religious exercise imposed by laws neutral toward reli-

gion." 42 U.S.C. § 2000bb(a). The "purpose" section adds that RFRA

aims "to restore the compelling interest test a set forth in Sherbert

v. Verner, 374 U.S. 398 (1963), and Wisconsin y. Yoder, 406 U.S. 205

(1972)." Id. at § 2000bb(b).*

*RFRA contemplates that courts will rely on cases decided prior to

Smith when applying the statute's compelling interest standard. See 42

U.S.C. § 2000bb(a)(5) (finding that the “compelling interest test as set

forth in prior Federal court rulings [prior to Smith] is a workable test'' ;

S. Rep. 111, 103d Cong. ist. Sess. 8 reprinted in 1993 U.S.C.C.A.N.

1892, 1898 (noting that the "committee expects that courts will look to

free exercise cases decided prior to Smith for guidance"); id. at 9 (stating

that "the compelling interest generally should not be construed more

stringently or more leniently than it was Prior to Smith") (foomote omit-

ted).

22a

In Sherbert South Carolina denied unemployment benefits to a

Seventh-day Adventist fired for refusing to work on her Sabbath. The

Supreme Court reversed. It found uncompelling South Carolina's

asserted interest in deterring “unscrupulous claimants feigning reli-

gious objections to Saturday work." Sherbert, 374 U.S. at 407. In

Yoder Wisconsin convicted three Amish parents for refusing to send

their children to school beyond the eighth grade. Wisconsin's highest

court reversed the convictions, and that result stood in the United

States Supreme Court. Wisconsin's asserted interest of preparing self-

reliant citizens for participation in society was rejected as uncompel-

ling by the Supreme Court. The Amish had introduced convincing

evidence that accommodating their religious objections by excusing

a year or two of compulsory schooling would not impair the physical

or mental health of the children or undermine their ability to be self-

supporting and good citizens. Yoder, 406 U.S. at 221-29. In both

Sherbert and Yoder the Supreme Court carefully distinguished cases

involving the government’s paramount interest in protecting physical

or mental health, public safety, or public welfare. Sherbert, 374 U.S.

at 403; Yoder, 406 U.S. at 230. In addition, Sherbert noted that reli-

gious accommodation could be denied when the accommodation, by

allowing non-uniform treatment, presented a problem of sufficient

magnitude to render a statutory scheme unworkable. Sherbert; 374

U.S. at 408-09.

In Free Exercise Clause decisions cited by or following Sherbert,

the Supreme Court has recognized these compelling governmental

interests in a variety of situations. For instance, the Court found the

need for uniformity paramount in a case requiring an Amish employer

to pay Social Security taxes for Amish employees, United States v.

Lee, 455 U.S. 252, 258-59 (1982), and in a case denying Jewish ser-

vicemen the right to wear a yarmulke, Goldman v. Weinberger, 475

U.S. 503, 508-510 (1986). It found public welfare paramount in a

case enforcing the draft against persons who considered a particular

war "unjust," Gillette v. United States, 401 U.S. 437, 462 (1971), and

in a case denying tax exemptions to educational institutions with

racially discriminatory policies, Bob Jones University v. United

States, 461 U.S. 574, 604 (1983). The Court found the public health

and safety interest decisive in upholding mandatory vaccination,

Jacobson v. Massachusetts, 197 U.S. 11 (1905),’ and in enforcing

"Jacobson did not explicitly address the Free Exercise Clause. It did,

however, discuss fundamental "liberty" interests. 197 U.S. at 26-27 and

23a

child labor laws, Prince y. Massachusetts, 321 U.S. 158, 168-70

(1944) (finding that a state’s interest in Protecting health justified pro-

hibiting a nine-year-old Jehovah’s Witness from distributing religious

literature).

Finally, we do not think the Free Exercise Clause shields conduct

violating a criminal law that protects people and property from physi-

cal harm. Cf Reynolds v. United States, 98 U.S. (8 Otto) 145, 166

(1878) (posing the following rhetorical question: "[S]uppose one

believed that human sacrifices were a necessary part of religious wor-

ship, would it be seriously contended that the civil government under

which he lived could not interfere to prevent a sacrifice?").

Second, we believe the Access Act is sufficiently narrow. The

Act's prohibitions are directed Only to those actions Congress found

to be a national problem, specifically force, threat of force and physi-

cal obstruction. The Act does not sweep within its prohibitions activ-

ity unrelated to the serious trouble Congress sought to address.

We conclude that the Access Act serves sufficiently compelling

government interests by the least restrictive means available. It there-

fore does not violate RFRA.

VI.

"There are manifold restraints to which every person is necessarily

subject for the common good. On any other basis organized society

could not exist with Safety to its members." Jacobson y.

38-39. Sherbert, 374 U.S. at 403, and Yoder, 406 U.S. at 230, construe

Jacobson as a health and Safety case.

24a

Massachusetts, 197 U.S. 11, 26 (1905) (Harlan, J.). In passing the

Access Act, Congress acted to ensure that violence and aggressive

obstruction are not used as means of settling what has become a loud

and vexing public dispute.

The Access Act strikes a balance among competing rights holders.

It protects those who seek or provide reproductive health services

without suppressing robust debate about abortion. Those opposed to

abortion or to any other reproductive health service retain the freedom

to express their deeply-held moral or religious views in a peaceful,

non-obstructive way.

The district court’s order dismissing the complaint is affirmed.

AFFIRMED

25a

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

CIVIL ACTION NO. 94-700-A

AMERICAN LIFE LEAGUE, et al.,

Plaintiffs,

THE UNITED STATES OF AMERICA

and JANET RENO,

Defendants.

OPINION AND ORDER

I. The Parties Involved in this Lawsuit.

[Filed Jun 16, 1994, U.S. District Court, Alexandria, Virginia]

* On June 3, 1994, the Court previously granted a Motion to Inter-

vene, pursuant to Fed. R. Civ. Pro. 24(aX2), filed by the National

Abortion Federation, Commonwealth Women’s Clinic, Capitol

Women’s Clinic, Dr. George Tiller, Dr. Susan Wicklund and the Na-

tional Organization for Women. On June 10, 1994, the Court denied,

from the bench, plaintiffs’ Motion for Class Certification, which had

been filed with their Complaint.

26a

motions that the plaintiffs’ Second Amended Complaint

creates a ripe controversy for this Court to consider and

decide.?

Plaintiff American Life League, Inc. (ALL) is an

organization located in Stafford, Virginia, which con-

ducts various educational and legislative activities “relat-

ing to the human rights of persons born or unborn.” ALL

alleges that it does not advocate or condone violent

conduct in pursuit of its goals. However, ALL also

alleges that it and its members intend to interfere with

abortion providers and to injure them financially, by

persuading their customers—pregnant women—not to

undergo abortion procedures. Similarly, ALL alleges that

2 Federal courts are courts of limited jurisdiction. See, e.g. Marbury

v. Madison, 1 Cranch (5 U.S. 137, 173-80 (1803). It is the

responsibility of the complainants to allege facts demonstrating that

they are the proper parties to invoke judicial resolution of this

dispute and that an actual or threatened application of FACE exists.

See, Bender v. Williamsport Area School District, 475 U.S. 534, 549,

106 S. Ct. 1326, 1335, 89 L.Ed. 2d 501 (1986); Renne v. Greary, 111 S.

Ct. 2331, 2338 (1991). Plaintiffs’ original Complaint did not allege that

they intended any actions which would arguably invoke the statute in

question. Plaintiffs’ First Amended Complaint alleged that they have

obstructed in the past and ‘may obstruct” entrances to abortion

facilities. At oral argument, after dismissing the Amended Complaint

as not ripe, the Court permitted plaintiffs to amend again. Plaintiffs’

Second Amended Complaint alleges that while individual plaintiffs are

peaceable and nonviolent, “‘in the aggregate, their action at times has

constituted, and in the future will constitute, in the words of FACE,

a ‘physical obstruction’ (that is, temporarily rendering impassable

ingress to an abortion facility)’ and that by so doing, they interfere

with, and/or intimidate and/or injure abortion seekers and providers.

As 13 U.S.C. § 248 applies to whoever, by physical obstruction, inter-

feres with a person because that person is obtaining or providing

reproductive health services, the plaintiffs’ allegations that they plan

to do so, combined with their allegations that they have regularly

done so in the past, create a sufficient showing that FACE will be

applied to them.

27a

its members’ activities at various abortion facilities

necessarily injure or intimidate pregnant women in that

ALL seeks to evoke feelings of religious or moral guilt or

general emotional distress, for the purpose of dissuading

women from aborting their pregnancies.

Plaintiff Patricia Lohman runs a pregnancy counseling

service, located approximately 250 feet from an abortion

clinic, which counsels pregnant women about alterna-

tives to abortion. She also shares ALL’s intent to obstruct

clinic entrances. The other named plaintiffs are

individuals who have engaged, and would like to

continue to engage, in demonstrating, praying and

sidewalk-counseling in the vicinity of facilities which

nonviolent, but, like ALL’s numerous members, they

frequently pursue their activities in concert with other

like-minded individuals. They allege that their combined

physical presence has caused and will cause physical

obstruction of the entrance to facilities providing

reproductive health care,. and that they intend to inter-

fere, nonviolently, with abortion patients and providers.

Defendant Janet Reno, in her capacity as Attorney

General of the United States, is charged with the en-

forcement of the laws of the United States, including

FACE.® Intervenor National Abortion Federation (NAF) is

a professional organization of physicians, nurses and

clinics providing reproductive care, including abortions,

for women. Intervenors Commonwealth Women’s Clinic,

28a

Capitol Women’s Clinic, Dr. George Tiller and Dr. Susan

Wicklund are clinics and physicians that perform abor-

tions and have been threatened and stalked and whose

facilities have been damaged by violent anti-abortion

protestors. Intervenor National Organization for Women

has among its members thousands of women who may

seek abortions or other reproductive health services.

Il. The Statute at Issue.

On May 26, 1994, President Clinton signed the

Freedom of Access to Clinic Entrances Act into law,

stating that he intended it to be vigorously enforced.

FACE is a criminal statute which provides for both

criminal penalties and civil remedies against:

‘‘whoever— (1) by force or threat of force or by

physical obstruction, intentionally injures, intimi-

dates or interferes with or attempts to injure, intim-

idate 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 heaith

services.”’

18 U.S.C. § 248 (a) (1).* The essential elements of a viola-

tion of 18 U.S.C. § 248 (a) (1) are conduct and specific

intent. The Act prohibits three kinds of conduct: (1) the

use of force; (2) the threat of force; and (3) physical

obstruction. The specific intent necessary to run afoul of

*The statute provides for the following criminal penalties: for a

first offense, a fine or imprisonment for up to one year. Anyone

committing a second or subsequent offense shall

be fined in accordance with this title, or imprisoned not more

than 3 years, or both; except that for an offense involving exclu-

sively a nonviolent physical obstruction, the fine shall be not

more than $10,000 and the length of imprisonment shall be not

more than six months, or both, for the first offense; and the fine

29a

FACE is intent to injure, intimidate or interfere with a

person who is obtaining or has obtained or is providing or

has provided, reproductive health services. Plaintiffs’

nonviolent activities, as described in their second

Amended Complaint, fall within the statute’s ambit

because they allege that they will cause a physical

obstruction of clinics that provide abortion services, with

the requisite intent to financially injure the abortion

providers and to “interfere with” the women who may

be entering a facility to procure an abortion.

Ill. Congress’s Authority to Enact FACE.

At the outset, the Court rejects the plaintiffs’

argument that Congress lacked authority to enact FACE.

Congress has the power, under the Commerce Clause,

U.S. Const. art. I § 8, cl. 3, and the Necessary and Proper

Clause, U.S. Const. art. I, § 8, cl. 18, to regulate in-

terstate commerce and intrastate activity that affects

interstate commerce. United States v. Wrightwood Dairy

Co., 315 U.S. 110, 120 (1942); Katzenbach v. McClung,

379 U.S. 294, 301-302 (1964); Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241 (1964). This authority

extends to enacting criminal penalties for individual

acts, even if not all of the potential defendants had

shall be not more than $25,000 and the length of imprisonment

shall be not more than 18 months, or both, for a subsequent

offense; and except that if bodily injury results, the length of

imprisonment shall be not more than 10 years, and if death re-

Sults, it shall be for any term of years or for life.

Civil remedies include injunctive relief, compensatory and punitive

damages, along with costs and reasonable attorney and expert witness

fees. In lieu of actual damages, statutory damages of $5,000 per viola-

tion are available. 18 U.S.C. § 248(cX 1A) and (B). FACE also empow-

ers the Attorney General, of the United States, as well as the State

attorneys general to bring civil actions for injunctive relief and civil

penalties against individual or group violators. 18 U.S.C. § 248(cX2)

and (3).

30a

actual connections to interstate commerce. Perez v.

United States, 402 U.S. 146, 154-156 (1971); Russell v.

United States, 471 U.S. 858 (1985). The legislative history

of FACE shows that Congress had evidence both of

numerous women crossing state lines to obtain reproduc-

tive services no longer available in their home states and

of anti-abortion organizations crossing state lines in order

to orchestrate violence against abortion providers and

patients. S. Rep. No. 117, 103d Cong., Ist Sess. The

Senate hearings also include extensive testimony con-

cerning the inability and, in some cases, unwillingness of

local law enforcement authorities to provide adequate

protection for reproductive health service clinics, their

staffs, and patients. Jd. We find that Congress had

ample evidence of the impact upon interstate commerce

of myriad threats, bombings, stalkings, blockades and

assaults inflicted on reproductive health services provid-

ers and patients, and that the prohibitions in FACE are a

reasonable and appropriate means to address the prob-

lem. See Hodel v. Virginia Surface Mining & Reclama-

tion Ass’n., 452 U.S. 264, 276 (1981).

IV. Freedom of Expression Issues.

At the heart of plaintiffs’ constitutional challenge are

their arguments that FACE prohibits and penalizes, or

5 For example, the Senate Report notes in its discussion of the need

for such legislation that:

From 1977 to April 1993, more than 1,000 acts of violence

against abortion providers were reported in the United States.

These acts inchuded at least 36 bombings, 81 arsons, 131 death

threats, 84 assaults, two kidnappings, 327 clinic invasions, and

one murder. In addition, over 6,000 clinic blockades and other

disruptions have been reported since 1977. The record before the

Committee establishes that state and local law enforcement is

inadequate to handle this situation, and that Federal legislation is

urgently needed.

Id.at 3.

3la

chills, free expression of religious, moral and philosophi-

cal beliefs; that it impermissibly focuses criminal and

civil sanctions on particular viewpoints; and that it is

unconstitutionally vague, giving law-abiding citizens

inadequate guidance as to exactly what it prohibits.

Plaintiffs first argue that FACE is overbroad because

they believe it imposes criminal and civil penalties for

forms of expression, such as praying and sidewalk

counseling, which are covered by the First Amendment.

Overbreadth refers to a statute’s being written so as to

include protected First Amendment activity along with

unprotected conduct. Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973). Their argument is largely based on their

expressed concern that the term “‘injure,’’ which is not

defined in the Act, might include psychological or

emotional injury, which could result from plaintiffs’ pure

speech. Plaintiffs make the point that pure speech,

which is at the core of First Amendment protection,

may, and is, in the context of abortion protest, intended

to, “‘injure’’ by causing emotional pain and to “‘intimi-

date”’ or, if persuasive and articulate, even ‘‘interfere.”’

They argue that persons who desire to express their

views, pray and sidewalk-counsel at the entrance of

reproductive health services facilities are now afraid to

do so for fear that these peaceful, nonviolent, expressive

activities are prohibited by FACE. In other words,

plaintiffs argue that their First Amendment expression

will be ‘‘chilled.”’

Contrary to plaintiffs’ assertions, the Court finds that

this statute avoids infringing on legitimate First Amend-

ment rights. Nothing in the language of FACE prohibits

pure speech; rather the Act criminalizes the use of force,

threat of force, and physical obstruction. 18 U.S.C.

§ 248(a) (1). These acts have long been outside the scope

of the First Amendment’s protection. See Wisconsin v.

Mitchell, 113 S.Ct. 2194, 2199 (1993). In Mitchell, a

unanimous Court held that a penalty enhancement for

32a

criminal conduct motivated by racial bias did not violate

the First Amendment. The Court explained that conduct

does not become ‘‘speech”’ entitled to the protection of

the First Amendment whenever the actor intends to

express an idea through his conduct. Id., quoting Roberts

v. United States Jaycees, 468 U.S. 609, 628 (1984)

(‘‘[VJiolence or other types of potentially expressive

activities that produce special harms distinct from their

communicative impact . .. are entitled to no constitu-

tional protection’’). FACE is crafted to prohibit and

penalize only those ‘‘potentially expressive’’ acts that

Congress found were producing and would continue to

produce ‘‘special harms distinct from their communica-

tive impact.’’ See Roberts, supra. Even the non-violent

blocking which plaintiffs contemplate constitutes the

torts of trespass, battery and false imprisonment under

state laws. More importantly, in the scenario which

plaintiffs have chosen to present for the Court’s review,

non-violent obstruction of clinic entrances prevents

women from exercising their constitutuional right to an

abortion. See Roe v. Wade, 410 U.S. 113 (1973); Planned

Parenthood v. Casey, 112 S.Ct. 2791 (1992). The First

Amendment protects the plaintiffs’ right to hold and

express beliefs opposing abortion; it does not give them

unfettered license to express those beliefs in conduct.

Similarly, threats to use force are not protected by the

First Amendment, and Congress may criminalize threats

to a particular victim if doing so furthers an important

interest. See R.A.V. v. City of St. Paul, 112 S. Ct. 2538,

2546 (1992).

Plaintiffs’ argument that their rights to pray and

counsel will be chilied is but a restatement of the

previous argument. As discussed above, FACE does not

apply, on its face, to purely verbal activity. Plaintiffs

rely upon R.A.V. v. City of St. Paul, supra, in which the

Supreme Court found a ‘“‘hate crime’”’ o prohibit-

ing the display of certain symbols, objects, appellations

and graffiti facially invalid. This reliance is misplaced.

33a

The St. Paul ordinance focussed on particular viewpoints

and directly prohibited verbal expression; as discussed

infra, FACE does neither.

Because FACE’s language refers to action, not words,

plaintiffs have exercised their creativity to find interpre-

tations of the Act’s terms that encompass pure speech.

However, their arguments ignore the definitions of the

relevant terms included in the Act itself, which each

describe tortious conduct rather than viewpoint expres-

sion. The Act, for example, defines the term ‘‘interfere

with” to mean ‘“‘to restrict a person’s freedom of move-

ment.’’ 18 U.S.C. § 248(e) (2). Words or prayers alone

will not restrict a person’s freedom of movement. Speak-

ing or praying accompanied by shoving or positioning

oneself to block a walkway, as plaintiffs intend, will

restrict a person’s freedom of movement. The for-

mer—pure speech—does not violate the Act; the lat-

ter—speech plus conduct—will create a prohibited inter-

ference.

In addition to drafting FACE narrowly so as to prohibit

certain conduct, rather than speech, Congress included

‘‘Rules of Construction”’ the first of which is: ‘‘“—Nothing

in this section shall be construed— (1) to prohibit any

expressive conduct (including peaceful picketing or other

peaceful demonstration) protected by the First Amend-

ment to the Constitution.’’ 18 U.S.C. § 248(d) (1). While

the Court agrees with plaintiffs that Congress could not

make a fatally flawed law constitutional merely by

including a saving clause, in this context the rule of

construction removes any ambiguity which plaintiffs can

inject into the otherwise plain meaning of the Act’s

words. Without ambiguity, there is no chill. Protestors

who are not chilled by the existing laws against trespass

and assault could not reasonably be chilled by this Act:

The plaintiffs also argue that FACE is unconstitutional-

ly vague on its face. Their argument is essentially the

same one addressed above in the overbreadth discussion.

34a

A statute is unconstitutionally vague if people ‘‘of com-

mon intelligence must guess at its meaning.’’ Hynes v.

Mayor of Oradell, 425 U.S. 610, 620 (1976). The Court

does not agree that the Act is vague. The language of

FACE is neither technical nor arcane. Moreover, most of

the operative words come from other statutes which the

Supreme Court has construed and found not unconstitu-

tionally vague. Of particular relevance is the Supreme

Court’s decision that a statute which prohibited ‘‘picket-

ing or mass demonstrations in such a manner as to ob-

struct or unreasonably interfere with free ingress or

egress’’ was not unconstitutionally vague. Cameron v.

Johnson, 390 U.S. 611, 612 (1968). This is the same defi-

nition for ‘‘physical obstruction’’ that appears in FACE.

This Court cannot hold that this definition is unconstitu-

tionally vague.

The remaining terms, ‘‘use of force’’ and ‘‘threat of

force’’ are, without doubt, clear to anyone making an

honest effort to understand rather than ignore the plain

meaning of this Act. FACE plainly prohibits only physi-

cal obstruction, the use of force, and threats. Congress

need not append a laundry list of violent acts, threats

and manners of obstructing in order to express its clear

intent.

The plaintiffs further argue that FACE is not view-

point neutral because, they assert, it applies only to anti-

abortion protestors, ‘‘and not to persons who use similar

tactics or worse to persuade women to have abortions

they do not want.’’ Upon a reading of the unambiguous

language of FACE, the Court disagrees with this charac-

terization of the statute. Plaintiffs cannot point to any

language in FACE which supports their interpretation.

Instead, they rely on a sentence uttered by Senator

Kennedy during floor debate of a proposed amendment

which was subsequently defeated. The proposed

amendment, according to plaintiffs, would have provid-

ed a cause of action for would-be protestors who allege

35a

violations of their First Amendment rights throught the

suppression of anti-abortion demonstrations. Senator

Kennedy spoke against the proposed amendment, stating

“‘a cause of action for prolife demonstrator[s] will trans-

form the bill from a clinic access bill to a clinic harass-

ment bill.” 139 Cong. Rec. S15706 (daily ed, November

16, 1993) (statement of Senator Kennedy). Plaintiffs

argue that despite Senator Kennedy’s characterizing

FACE as “‘a clinic access bill’’, his statement supports

their position that FACE applies only to anti-abortion

protestors. This needle from a veritable haystack of legis-

lative history is not relevant to our interpretation.

Where the plain language of a statute is clear and

unambiguous, courts do not look to the legislative history

to find some different meaning. Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 570 (1982); Consumer

Product Safety Comm’n. v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980). While it is clear from the Senate hear-

ings that Congress was concerned about protecting clin-

ics from violent anti-abortion protestors, FACE applies to

‘““‘whoever’’ engages in the prohibited conduct, with the

requisite intent to injure, intimidate or interfere with

“any person’’ who is entering a facility to obtain repro-

ductive health services. 18 U.S.C. § 248. Both the terms

‘“‘whoever”’ and “‘person’”’ are gender-neutral. The Act

defines ‘‘reproductive health services’’ as ‘reproductive

health services provided in a hospital, clinic, physician’s

office, or other facility, and includes medical, surgical,

counseling or referral services relating to pregnancy or

the termination of a pregnancy.’”’ 18 U.S.C. § 248(d). This

broad definition of reproductive health services encom-

passes a wide variety of services and procedures, includ-

ing diagnosis and treatment of sexually transmitted

diseases, infertility testing and treatments, pre-natal

care, obstetrics, and, presumably, controversial concep-

tion treatments, such as in vitro fertilization of surro-

gate mothers and thawing of frozen embryos. Anyone,

male or female, entering a facility seeking any of these

36a

medical services is protected under FACE. As such,

although the statute is subject-specific in that it protects

access to reproductive health services facilities, it is

nevertheless viewpoint-neutral.

V. Free Exercise Clause

Finally, plaintiffs assert that FACE violates the Free

Exercise Clause of the First Amendment to the Constitu-

tion, as well as the Restoration of Religious Freedom Act,

42 U.S.C. §§ 2000bb(b) (2), which provides that the gov-

ernment cannot ‘‘substantially burden a person’s right to

exercise of religion’’ unless it can show that such burden

is the least restrictive means of furthering a compelling

governmental interest. Plaintiffs’ argument is that

Congress’s passage of FACE was motivated by ‘‘animosi-

ty to religion.’’ They rely on Church of Lukumi Babalu

Aya v. Hialeah, 113 S.Ct. 2217, 2234 (1993) which struck

down a law contrived to prohibit ritual animal sacrifices

performed by a particular sect as violating the Estab-

lishment Clause. That case is distinguishable from the

case at bar in several ways, not the least of which is that

animal welfare is not constitutionally protected, whereas

a woman's right to an abortion is constitutionally pro-

tected. See Roe and Casey, supra. Moreover, from its

legislative history, we know that it was the history of

violent attacks against abortion clinics, providers and

their patients, and other religion-neutral reasons which

motivated Congress to enact FACE.

It suffices here to note that the plaintiffs have not

alleged in any of their three complaints and do not

contend in their memoranda that physical obstruction of

abortion clinics is a sacrament or important ritual

necessary to their observance of their faith. They have

alleged that they oppose abortion on religious and moral

grounds, and that they desire to pray for the souls of

women who are obtaining abortions and for the souls of

their unborn children. Their goal is to prevent abortions.

37a

Nothing in the Act impinges upon plaintiffs’ ability to

pray for these results. What is limited by the Act is what

else they may do while praying and counseling. They

may not pray and counsel so as to physically obstruct

access to reproductive health service facilities. As de-

fined in the Act, “‘physical obstruction’’ means ‘‘render-

ing impassable ingress to or egress from a clinic.’’ This

language provides adequate guidance for anyone who

truly wants to understand the scope of the Act, rather

than look for tortured interpretations of its words. The

Statute, on its face, neither prohibits nor inhibits such

prayers, counseling or self-expression.

VI Conclusion

For the above reasons, the Court holds that FACE is

constitutional. The United States’ Motion to Dismiss is

therefore GRANTED, and plaintiffs’ Second Amended

Complaint is hereby DISMISSED WITH PREJUDICE. This

decision renders moot the plaintiffs’ Motion for a Prelim-

inary Injunction.

The Clerk is directed to forward copies of this Opinion

and Order to counsel of record.

Entered this 16th day of June, 1994.

/s/ Leonie M. Brinkema

Leonie M. Brinkema

United States District Judge

Alexandria, Virginia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.