Opposition Brief — American Life League, Inc. v. Reno

3 7

No. i Supreme Court, U.S.

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ciiniaeamneseniameae

JUL 25 1995

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: CLERK

IN THE ei licteesiadteee i

Supreme Court of the United States

OCTOBER TERM, 1995

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AMERICAN LIFE LEAGUE, INC., et al.,

Petitioners,

—vV.—

JANET RENO,

ATTORNEY GENERAL OF THE UNITED STATES, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENTS

NATIONAL ABORTION FEDERATION; NATIONAL

ORGANIZATION FOR WOMEN; COMMONWEALTH

WOMEN’S CLINIC; CAPITOL WOMEN’S CENTER,

INC.; GEORGE TILLER, DOCTOR;

SUSAN WICKLUND, DOCTOR

PRISCILLA SMITH DEBORAH A. ELLIS

KATHRYN KOLBERT Counsel of Record

THE CENTER FOR NOW LEGAL DEFENSE

REPRODUCTIVE LAW AND EDUCATION FUND

& POLICY 99 Hudson Street

120 Wall Street, 18th Floor New York, New York 10013

New York, New York 10005 (212) 925-6635

(212) 514-5534

Counsel for Respondents

BEST AVAILABLE COPY/=

a eee oe eee ce

A eee Se

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COUNTERSTATEMENT OF THE QUESTIONS

PRESENTED

Whether Congress had authority under the Commerce

Clause or Section 5 of the Fourteenth Amendment to

enact the Freedom of Access to Clinic Entrances Act.

Whether the Freedom of Access to Clinic Entrances

Act is an unconstitutional content or viewpoint based

restriction on speech.

Whether the Freedom of Access to Clinic Entrances

Act is unconstitutionally vague or overbroad.

il

TABLE OF CONTENTS

PAGE

COUNTERSTATEMENT OF THE

QUESTIONS PRESENTED ......--cee000- i

TABLE OF AUTHIGRITEES ww ccccccccaceane iv

STATEMENT OF THE CAGE .. wc secwcvesees 1

Ai Proceeiaage Dw 4. wu te ceesas ]

B. The Factual Record Of Harm To

Ee Pre Py eee ree ee ]

REASONS THE PETITION SHOULD

Oe ere ee Pe ee 5

I. THIS COURT’S COMMERCE CLAUSE

DECISIONS DEMONSTRATE THAT

CONGRESS HAS AUTHORITY TO ENACT

FACE, PARTICULARLY BECAUSE FACE

PROTECTS PROVIDERS AND PATIENTS

ENGAGING IN INTERSTATE COMMERCE... 5

Il. THIS COURT’S DECISIONS MAKE CLEAR

THAT CONGRESS HAS AUTHORITY TO

ENACT FACE PURSUANT TO SECTION 5 OF

THE FOURTEENTH AMENDMENT........ 11

a ee eee Le ae ee ee r

ill

lil. THE FOURTH CIRCUIT’S DECISION

CONFORMS TO THE DECISION OF EVERY

COURT WHICH HAS CONSIDERED

WHETHER FACE VIOLATES THE FIRST

EE, ce ee os ee WN EN ee ss 15

A. Face Is Not Impermissibly Content Or

Viewpoint Based But Addresses The

Severe Problem Of Anti-Choice

Violence To Which Respondents Have

I ne oe gaa ks Kwa ea

B. Face Is Neither Overbroad

oa co ee ee

I ea Ra ds ig aw a v8 k wa oe

iV

TABLE OF AUTHORITIES

CASES PAGE

Bray v. Alexandria Women’s

Health Ciime, 115 S. Ct. 753 (1993) ........ 2, 9, 10

Cameron v. Johnson,

ee I hoy oe tee a ag i oe eee 18, 19

Cheffer v. Reno, 55 F.3d 1517

Chee ey bbe ee te ee ee ete boris 5, 15

City of Richmond v. J.A. Croson Co., 488

hiey Ge ae Bs ak eee ee ee 14

City of Rome v. United States, 446 U.S.

SP ME ia SC hr ee ae te ew eo! 02 12

Cook v. Reno, 859 F. Supp. 1008 (W.D.

La. 1994), appeal docketed, No.

oa ey ate «Sis 15

Council for Life Coalition v. Reno, 856

. Samp. 14622 Ge. COL PH) ms oe i ee eee 15

Woodall v. Reno, 47 F.3d 656 (4th Cir. 1995),

Cert. denied, 63 U.S.L.W. 3644

CO a ek es a as a se 15

District of Columbia v. Carter, 409 U.S.

Cie Ce Be er eee Le eo ee 13

Grayned v. City of Rockford, 408 U.S.

SOP SNE iS 4 cee Pee eee Ce ee 20

Vv

Heart of Atlanta Motel, Inc. v. United

Se, BIW Us Bee CEE ee hah eas tis bs 6, 10

Hishon v. King & Spalding, 467 U.S. 69

to Meee eee re eae ee eee ee ree 17

Houston v. Hill, 482 U.S. 451 (1987)........... 20

Katzenbach v. Morgan, 384 U.S. 641

SE is io aces et ee eae a eS iH. i2. 13

Ku Klux Klan Cases (Ex Parte Yarbrough),

Se Shc ee GE a ee na a ee db eS ee 13

Lassiter v. Northampton County Bd. of

ieee Se us GR APUUD ven eeeaws 12

Madsen v. Women’s Health Center, Inc..,

Se gic Se ES a Si ek ce ee oe oe ee 19

National Organization for Women v.

Operation Rescue, 726 F. Supp. 1483

(E.D. Va. 1989), aff'd, 914 F.2d 582

(4th Cir. 1990), rev’d in part on

other grounds, vacated in part,

Bray v. Alexandria Women’s Health Clinic,

EES ee ae ee 2 i ie a ie Os ee 10

National Organization for Women v.

ee Eis o. Ga FE) 6 ie ke kw Ae ee oe 2

vi

New_York State Nat’] Org. for Women v.

Terry, 697 F. Supp. 1324 (S.D.N.Y.

1988); and 704 F. Supp. 1247

(S.D.N.Y.), appeals consolidated & aff'd

as modified, 886 F.2d 1339 (2d Cir. 1989),

cert. denied, 495 U.S. 947 (1990) .............. 2

Planned Parenthood v. Casey, 112 S. Ct.

ee ee 6 6 a 11, 14, 15

In re Quarle Butler, 158 U.S. 532

CE vn 55k 9 Ot Ae ey as Ce aa 13

Reves v. Ernst & Young, 113 S. Ct. 1163

I ital os aS We 0584 ed ae ee Bs ie ete 17

Riely v. Reno, 860 F. Supp. 693

ee NE a, gine eee a a a Ries ek 15

Roberts v. United States Jaycees, 468

See koh i be alk a ee sare Bak Sele 17

Summit Health, Ltd. v. Pinhas, 111 S.

le ee RON ak nha ss ea a kc a oe 7

United States v. Brock, 863 F. Supp. 851

(E.D. Wis. 1994), appeals docketed,

Nos. 95-1308, 95-1309, 95-1333,

95-1430, 95-1488, and 95-1494 (7th

Sb sw ob be 8 ao en ea lk ob ew eee 15

United States v. Cruikshank, 92 U.S. 542

SE. Cans se ea a ee ee ee ee 13

eee ee

Te en

at) nradertciltan,

eee ee eee, SS a ne ay

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Vii

United States v. Dep’t of Corrections of

Wisconsin, No. 94-C-052-C, 1995 WL

Sioa Us. Wis. Jame 25, T9FS) ww ke es 12

United States v. Guest, 383 U.S. 745

a are aN citer ter ca eS 11, 13

United States v. Lopez, U.S.__, 115 S.

CR oc ee 5, 8, 9

United States v. O’Brien, 391 U.S. 367

re ns ob seb we 16, 18, 19

United States v. Robertson, U.S._,

I ne ig a eta wg 6

United States v. Wilson, 880 F. Supp.

621 (E.D. Wis. 1995), appeal docketed,

SoU Tae ROUSING EUED. og cw ke ee ee we 6, 12

Ex parte Virginia, 100 U.S. 339

I AO a oe gS ai 11

Wickard v. Filburn, 317 U.S. 111

NE ete et ee hee els coe gS pee ee eos 9

Wisconsin v. Mitchell, 113 S. Ct. 2194

er aa a cea iredt Sa ai i BG a a 17

Women’s Health Care Services v.

Operation Rescue, 773 F. Supp. 258,

261-62 (D. Kan. 1991), rev’d on

other grounds, 24 F.3d 107

SE a ek al Ug > yk edd osc be 8, 10

Vill

STATUTES AND LEGISLATIVE MATERIALS

H.R. Conf. Rep. No. 488, 103rd Cong., 2d

ts. -F Ce ae re ee ee eee ee eee 8

S. Rep. No. 117, 103rd Cong., 1st Sess.

De CEE 6-9 oe EK Se ee passim

Oe es 6 BOE cee ea Ws ae ee 13

SO as ee 6 kc Ae ta eS eee ooo 15

ee Se ec ei ee ee ee ee eee assim

Ue 8 ee ener es ree aera ee 16

Se Raa ae ce tae eee ae 16

2 USS. Bae) ok eA hes Sees 16

CET See 8 oe a Ci a 15

The Freedom of Access to Clinic

Entrances Act of 1993: Hearings

on S. 636 Before the Senate Comm.

on Labor and Human Resources,

10350nd Cong., ist Sess. 9G (1993) 2. ww we ee es 12

MISCELLANEOUS

David A. Grimes, Clinicians Who

Provide Abortions: The Thinning Ranks,

80 Obstetrics and Gynecology 719 (1992) ......... 9

a a

eT ee ee ae eee

deints

1X

L. Tribe, American Constitutional Law

oe FURR ee 13

Stanley K. Henshaw & Jennifer Van Vort,

Abortion Services in the United

States, 1987 and 1988, 22 Fam. Plan.

OM RE ae 8

Stanley K. Henshaw & Jennifer Van Vort,

Abortion Services in the United

States, 1991 and 1992, 26 Fam. Plan.

i) UO Ba Re ee err 9

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STATEMENT OF THE CASE

A. Proceedings Below.

Petitioners American Life League, et al. (hereinafter

"ALL"), filed this facial challenge to the Freedom of

Access to Clinic Entrances Act ("FACE" or "the Act"), 18

U.S.C. § 248 et seq., on May 26, 1994, the day FACE

became effective. On June 1, 1994, Respondents National

Abortion Federation, the National Organization for Women,

Commonwealth Clinic, Capitol Women’s Clinic, Dr.

George Tiller and Dr. Susan Wicklund (hereinafter

“Respondents") moved to intervene as defendants; the court

granted the intervention motion on June 3. Pet. App. A25.

On June 16, the district court granted Respondent Reno’s

motion to dismiss. Pet. App. A25-A37. The court of

appeals affirmed on February 13, 1995. Pet. App. Al-

A24.

B. The Factual Record Of Harm To

Respondents.

Respondents moved to intervene because they will be

severely harmed if FACE is_ enjoined or held

unconstitutional. The National Abortion Federation

("NAF") is a professional organization of physicians,

nurses, counselors, clinic administrators and other medical

professionals who provide women across the country with

reproductive health services. Virulent anti-abortion zealots

routinely target their attacks on many NAF members.

Individual NAF members are regularly stalked and

threatened, and many NAF clinics have been bombed and

2

blockaded. See Shaw Decl. q 3.' In March 1993, a

physician working at a NAF clinic, Dr. David Gunn, was

brutally murdered by an anti-abortion militant. Id. q 5.

Other NAF members have received numerous death threats.

Id. { 6.

The National Organization for Women ("NOW"), is a

membership organization devoted to securing equal rights

for women, including access to reproductive health care.

Its over 200,000 members throughout the country include

many individuals who use and will use reproductive health

services. NOW has been a plaintiff in many cases seeking

remedies against anti-choice extremism. E.g., National

Organization for Women v. Scheidler, 114 S. Ct. 798

(1994); Bray v. Alexandria Women’s Health Clinic, 113 S.

Ct. 753 (1993); New York State Nat’l Org. for Women v.

Terry, 697 F. Supp. 1324 (S.D.N.Y. 1988); and 704 F.

Supp. 1247 (S.D.N.Y.), PEN er

modified, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495

U2. 947 (1990).

Respondents Commonwealth Women’s Clinic

("Commonwealth") in Falls Church, Virginia, and the

Capitol Women’s Center ("Capitol") in Washington, D.C.,

are two clinics that provide a range of reproductive health

services, including abortions. Codding Aff. q 1.

Commonwealth and Capitol clinics have been the targets of

various forms of intimidation, harassment, blockades and

violence, the perpetrators of which would be subject to

prosecution or civil injunctive and monetary relief under

FACE. In particular, anti-abortion extremists have

"rendered impassable" the entrances and exits to all of the

'The Shaw Declaration, the Wicklund Declaration, the Tiller

Affidavit, and the Codding Affidavit were submitted in support of the

Motion to Intervene.

3

clinics. Id. 44 4, 12-13. Anti-choice militants have also

attempted to "injure or intimidate" clinic personnel and

patients by sending repeated bomb threats and throwing iron

bars and rocks through the clinic windows. Id. 4{ 7-8.

Anti-abortion militants have forced Respondents Drs.

Wicklund and Tiller to practice medicine in a climate of

fear and intimidation. Since 1991, Dr. Wicklund has been

stalked by extremists, who routinely surround her car and

house, following her every move. Wicklund Decl. {{ 6-10.

Throughout her career, she has also been threatened and

assaulted by anti-abortion zealots. She was once assaulted

by two anti-choice zealots who leapt from a van, grabbed

her and slammed her against the van, all the while

screaming that she was a “baby killer." Id. { 13.

Particularly when attempting to reach a clinic to provide

abortion services, Dr. Wicklund has had her freedom of

movement regularly impeded by zealots who have blocked

her driveway, her car, and her person on a constant basis.

Id. {4 6-10. Moreover, the clinics where Dr. Wicklund

has provided services have been attacked by anti-choice

extremists and their entrances and exits have been

blockaded on numerous occasions. See id. ¥¢ 12, 16.

Dr. Tiller has had similar experiences. Throughout the

years his clinic, Women’s Health Care Services, has

experienced numerous blockades and a pipe bombing that

caused approximately $75,000 in damage. Tiller Aff. 44 1,

4. In particular, during what Operation Rescue called its

"Summer of Mercy" in 1991, hundreds of militants

surrounded the clinic, causing the overwhelmed local police

department to ask the clinic to close its doors for five days.

Id. ¢ 5. Even after the clinic obtained a federal injunction

to prohibit Operation Rescue from blocking the entrances

and exits of the clinic, zealots continued their blockades,

including the particularly horrendous tactic of encouraging

4

children to lie on the street in front of vehicles to prevent

patients from coming to the clinic. Id. In 1993, as Dr.

Tiller attempted to leave the clinic, he was shot in each arm

by Rochelle "Shelley" Shannon, an anti-abortion militant.

Id. { 6. The same day, Ms. Shannon also assaulted a nurse

at Dr. Tiller’s clinic. Id.

In contrast, ALL and other Petitioners have failed to

allege any facts showing that they will be harmed by

enforcement of FACE. Indeed, Petitioners filed three

complaints before they succeeded in asserting a justiciable

claim, as the court below found that the first two

complaints did “not allege that they intended any actions

which would arguably invoke the statute in question." Pet.

App. A26. Moreover, as the court of appeals noted, one of

the Petitioners, Patricia Lohman, directs a counselling

facility that is protected under FACE. Pet. App. All.

2

REASONS THE PETITION SHOULD BE DENIED

I. THIS COURT’S COMMERCE CLAUSE

DECISIONS DEMONSTRATE THAT

CONGRESS HAS AUTHORITY TO ENACT

FACE, PARTICULARLY BECAUSE FACE

PROTECTS PROVIDERS AND PATIENTS

ENGAGING IN INTERSTATE COMMERCE.

Congress correctly invoked its power under the

Commerce Clause of the United States Constitution in

enacting FACE. Petitioners’ contention (Pet. 8-12) that the

Fourth Circuit decision conflicts with United States v.

Lopez, _ U.S.__, 115 S. Ct. 1624 (1995), misapprehends

the stark contrast between the activity regulated in the Gun-

Free School Zones Act and FACE. In order to avoid

unnecessary repetition of Respondent Reno’s arguments,’

the argument below will address the issue of whether the

activity targeted by FACE is a valid exercise of Congress’

authority because it "regulate[s] and protect[s] :

persons . . . in interstate commerce," id. at 1629, by

prohibiting interference with persons “obtaining or

providing reproductive health services." 18 U.S.C. § 248(a)(1)2

°To avoid duplication, Respondents National Abortion Federation et

al. do not address ALL’s meritless contentions that FACE impinges on

free exercise of religion. In all respects regarding these claims or other

claims not directly addressed in this brief, Respondents here adopt

Respondent Reno’s position.

*Although the focus of this brief is the second Lopez test, as the

Eleventh Circuit recently held in Cheffer v. Reno, 55 F.3d 1517 (11th

Cir. 1995), the activity targeted by FACE also satisfies the third Lopez

category of Commerce Clause regulation, because it targets “activities

that substantially affect interstate commerce.” 115 S. Ct. at 1630. The

Eleventh Circuit drew heavily upon the reasoning of the Fourth Circuit

in this case, stating that it “agree{d] with the Fourth Circuit that the

6

In contrast to the Gun-Free School Zones Act struck

down in Lopez, which regulated an activity -- namely,

education -- that is inherently local and noncommercial,

FACE protects reproductive health clinics, which are

commercial enterprises that purchase goods in interstate

commerce, and doctors and patients, who engage in

interstate commerce by traveling interstate to provide or

receive reproductive health care. See Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 243 (1964)

(upholding Commerce Clause authority for Title II of the

1964 Civil Rights Act on the basis, inter alia, that motel

serves interstate travelers).

Thus, FACE is analogous to United States v.

Robertson, _U.S.__, 115 S. Ct. 1732 (1995), where this

Court found that because an Alaskan gold mine purchased

some of its supplies and equipment from out of state, hired

seven out-of-state employees, and fifteen percent of its

output went out of Alaska, the mine was an "enterprise... .

engaged in . . . interstate or foreign commerce." Id.

These circumstances directly parallel the involvement of

reproductive health care clinics in interstate commerce. As

Congress determined prior to enacting FACE, "many of the

patients who seek services . . . engage in interstate

commerce by traveling from one state to obtain services in

another," "clinic employees sometimes travel across State

lines to work," and clinics purchase "medicine, medical

Access Act [FACE] is within Congress’ Commerce power, and

adopt[ed] the reasoning in Part III.A. of the American Life League

decision on this issue." Cheffer, 55 F.3d at 1520. The Eleventh

Circuit specifically rejected as unsubstantiated the reasoning in United

States v. Wilson, 880 F. Supp. 621 (E.D. Wis. 1995), appeal docketed,

No. 95-1871 (7th Cir. 1995), the only case to have held that FACE is

beyond Congress’ Commerce Clause authority. Cheffer, 55 F.3d at

1521.

7

supplies, surgical instruments and other necessary medical

products, often from other States." S. Rep. No. 117, 103rd

Cong., Ist Sess. 31 (1993) [hereinafter "S. Rep.").

Petitioners, in relying primarily upon Lopez, completely

ignore the fact that FACE satisfies the second Lopez

category and confine their largely rhetorical argument to the

"affecting commerce" test. See discussion supra at 5 n.3.

The connection to commerce here is even stronger than

the gold mine at issue in Robertson because "the very

purpose of those engaging in the conduct addressed by

[FACE] is to suppress the provision of abortion services."

S. Rep. at 32 (emphasis added). Indeed, anti-choice

militants testified before Congress that since they have been

unable to use legal channels to prevent women from

obtaining abortions, it is their goal to make abortion

unavailable through illegal means: “We may not get laws

changed or be able to change people’s minds . . . [bJut if

there is no one willing to conduct abortions, there are no

abortions." Id. (citation omitted). As this Court recently

noted, there can be no greater interference with interstate

commerce than a concerted attempt to eliminate the

availability of and access to services by and for persons

engaged in interstate commerce. See Summit Health, Ltd.

v. Pinhas, 111 S. Ct. 1842, 1846-48 (1991) (interstate

commerce requirement satisfied by allegation of conspiracy

to exclude surgeon from local market).

Moreover, congressional findings demonstrate that the

nature of that interference and the need to protect doctors

and patients engaging in interstate commerce was fully

understood by Congress when it enacted FACE. In Lopez,

this Court reaffirmed the proposition that as part of its

independent evaluation under the Commerce Clause "we of

course consider legislative findings, and indeed even

congressional committee findings, regarding effect on

8

interstate commerce." 115 S. Ct. at 1631. Unlike Lopez,

where Congress made no findings regarding the effects of

gun possession on interstate commerce, here Congress

made extensive factual findings regarding the impact of

anti-choice violence on interstate commerce and the need to

protect persons in interstate commerce from this activity.

FACE itself expressly invokes the Commerce Clause and

the need to “promote the public safety and health." 18

U.S.C. § 248 note (1994). For example, the Conference

Report, approved by the full Congress, noted the need to

protect patients and employees moving in_ interstate

commerce as well as the interstate nature of the prohibited

conduct. H.R. Conf. Rep. No. 488, 103rd Cong., 2d Sess.

7 (1994). In addition, the Senate Committee recognized

that "[c]linic blockades disrupt a wide range of health

services [and] terrorize patients and staff." S. Rep. at 7.

Congress also relied on findings by federal courts

concerning Respondents here who have been subjected to

conduct designed to eliminate interstate commerce in

reproductive health care. For example, the Senate Report

noted a district court finding that the “avowed intent" of

blockaders was to shut down Women’s Health Care Clinic,

the clinic Respondent Tiller operates. S. Rep. at 11

(quoting Women’s Health Care Services _v. ration

Rescue, 773 F. Supp. 258, 261-62 (D. Kan. 1991), rev’d

on other grounds, 24 F.3d 107 (10th Cir. 1994)).

The concerted efforts of anti-choice militants to

decrease abortion services have been effective: this country

faces a dire shortage of physicians who are trained and

willing to provide abortions. Abortion services are now

available in only seventeen percent of the counties in the

United States. S. Rep. at 17; Stanley K. Henshaw &

Jennifer Van Vort, Abortion Services in the United States,

1987 and 1988, 22 Fam. Plan. Persp. 102, 106 (1990); see

9

also Stanley K. Henshaw & Jennifer Van Vort, Abortion

Services in the United States, 1991 and 1992, 26 Fam.

Plan. Persp. 100, 103 (1994). Not surprisingly, the Senate

Committee found that "anti-abortion violence and

intimidation have contributed to this shortage." S. Rep. at

17; see also David A. Grimes, Clinici Who_ Provide

Abortions: The Thinning Ranks, 80 Obstetrics and

Gynecology 719 (1992). As in Wickard v. Filburn, 317

U.S. 111 (1942), where the primary purpose of the statute

at issue was to regulate the amount of wheat in interstate

commerce to avoid surpluses and shortages, Congress’

primary purpose in enacting FACE was to ensure the

continued availability of reproductive health services.

Under Lopez’s second category, Congress may protect

persons moving in interstate commerce “even though the

threat may come only from intrastate activities." 115 S.

Ct. at 1629. Here, however, interstate commerce is

implicated to an even greater degree because a substantial

portion of the threat comes from interstate activities.

Relying on court opinions and testimony from law

enforcement officials, as well as from the Attorney General

of the United States, the Senate Committee found that those

engaging in anti-abortion blockades and related conduct

travel all over the country to do so. S. Rep. at 12-13.

Indeed, Congress made specific findings that the

Respondents in this case participate in interstate commerce.

The Senate Report noted that "[c]linic employees sometimes

travel across State lines to work," id. at 31, and identified

Respondent Dr. Susan Wicklund, who provides abortion

services in Minnesota, Montana, North Dakota, Wisconsin,

and parts of Canada. S. Rep. at 31 & n. 46. Likewise,

discussing a court finding about Respondent Commonwealth

Clinic, the Senate Report on FACE noted that in Bray, this

Court "accepted the district court’s finding that substantial

10

numbers of women travel interstate to seek abortion

services." S. Rep. at 31; see National Organization for

Women v. Operation Rescue, 726 F. Supp. 1483, 1489

(E.D. Va. 1989) (twenty to thirty percent of patients served

at Respondent Commonwealth Women’s Clinic came from

out of state, including Maryland, D.C., Pennsylvania,

Texas, West Virginia, New Jersey, New York, and

phage aff'd, 914 F.2d 582 (4th Cir. 1990), rev'd in part

n_ other grounds, vacated in part, Bray v. Alexandria

Women’ s Health Clinic, 113 S. Ct. 753 (1993). Similarly,

the Senate cited a Kansas district court finding that "forty-

four percent of the patients [at Respondent Dr. Tiller’s

clinic] came from out-of-State." S. Rep. at 31; Women’s

Health Care Services v. Operation Rescue, 773 F. Supp. at

266-67. Petitioners ignore these detailed Congressional

findings regarding Respondents and the vast number of

patients and providers who travel interstate to provide or

obtain reproductive health services as well as the principle

that courts must defer to these findings if there is a rational

basis for them.

Moreover, in asserting that commerce regulation may

not have even been the real legislative purpose of FACE

(Pet. 10), Petitioners fail to heed that commerce regulation

need not be the only, or even the primary, purpose of

legislation that Congress enacts under its Commerce Clause

authority. More than 30 years ago, this Court declared that

"in framing Title II [prohibiting discrimination in public

accommodations] Congress was also dealing with what it

considered a moral problem. But that fact does not detract

from the overwhelming evidence of the disruptive effect

that racial discrimination has had _ on commercial

intercourse." Heart of Atlanta Motel, 379 U.S. at 257

(1964).

—————E—E—————

1]

Petitioners urge this Court to accept review in order to

“enunciat[e] standards" (Pet. 12) to define Congress’

legislative authority under the Commerce Clause.

However, as Petitioners’ brief itself reveals, this Court has

recently done so in United States v. Lopez, by delineating

three categories in which Congress may legislate, and

Congress has met those standards in enacting FACE. The

petition for certiorari must therefore be denied.

Il. THIS COURT’S DECISIONS MAKE CLEAR

THAT CONGRESS HAS AUTHORITY TO

ENACT FACE PURSUANT TO SECTION 5 OF

THE FOURTEENTH AMENDMENT.

Section 5 empowers Congress “to enforce by

appropriate legislation all of the provisions" of the

Fourteenth Amendment. It is a “positive grant of

legislative power," granting "broad powers" to Congress to

protect the rights embodied in the Fourteenth Amendment.

Katzenbach_v. Morgan, 384 U.S. 641, 650 (1966). See

also United States v. Guest, 383 U.S. 745, 784 (1966);*

Ex parte Virginia, 100 U.S. 339, 345-46 (1879). Because

childbearing decisions, including abortion, are

constitutionally protected under the Fourteenth

Amendment,» FACE is an appropriate exercise of

congressional authority under Section 5, as well as the

Commerce Clause.

“In Guest, six justices joined at least one of two concurring opinions

which reached the conclusion that "there now can be no doubt that the

specific language of Section 5 empowers the Congress to enact laws

punishing all conspiracies -- with or without state action -- that interfere

with Fourteenth Amendment rights." 383 U.S. at 762 (Clark, J.,

concurring) (emphasis added); id. at 782 (Brennan, J., concurring).

*Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).

12

Only one court, a district court, has ruled to the

contrary in a decision that confuses judicial enforcement

under the Fourteenth Amendment with Congressional power

to legislate under Section 5. United States v. Wilson, 880

F. Supp. at 635. It is true, of course, that the Fourteenth

Amendment protects the right to abortion only against state

interference, and not against the private activity covered by

FACE. v. Alexandria Women’s Health Clinic, 113 S.

Ct. 753, 756 (1993). However, it is equally well-settled

that congressional authority under Section 5 is measured by

a standard different from judicial authority, and does not

depend on whether the covered activity is directly

prohibited by the Fourteenth Amendment.® Thus, in

Morgan, 384 U.S. at 644, this Court held that Section 5

authorized federal legislation prohibiting literacy tests as a

prerequisite to voting, despite a previous holding in Lassiter

v. Northampton Coun . of Elections, 360 U.S. 45, 53-

54 (1959), that such tests did not deny equal protection.

See also United States _v. Dep’t of Corrections of

Wisconsin, No. 94-C-052-C, 1995 WL 379223 (E.D. Wis.

June 23, 1995) (upholding enactment of Religious Freedom

Restoration Act under Section 5).

For Section 5 purposes, the critical issue is whether the

legislation is "plainly adapted" to protect Fourteenth

Amendment nights. Morgan, 384 U.S. at 651; see also

City of Rome v. United States, 446 U.S. 156 (1980). As

*"Congress’ power to enforce the Fourteenth Amendment is

significantly broader than that of the judiciary, because Congress may

determine -- on the basis of its superior fact-finding capabilities and on

the basis of the broader range of remedial options open to it as a

legislative body -- that certain measures are necessary . . . to ensure

that . . . federal rights are fully secured." The Freedom of Access to

Clinic Entrances Act of 1993: Hearings on S. 636 Before the Senate

Comm. _on Labor and Human Resources, 103rd Cong., Ist Sess. 98

(1993) (testimony of Laurence H. Tribe).

13

the Court in Morgan noted, Section 5 must empower

Congress to legislate beyond what is prohibited by the

Fourteenth Amendment if the provision is to have any

significance. Otherwise, because the Fourteenth

Amendment is self-executing, Section 5 would only

empower Congress to replicate what the judiciary was

already bound to do. Morgan, 384 U.S. at 648-649.

Petitioners’ claim that Section 5 does not give Congress

authority to legislate over private conduct (Pet. 12-14)

ignores this Court’s prior precedents and misapprehends the

nature of Congressional authority under Section 5. In a

unanimous opinion in District of Columbia v. Carter, 409

U.S. 418 (1973), this Court reaffirmed, in dictum, the

proposition that to say "[t]he Fourteenth Amendment itself

‘erects no shield against merely private conduct,’ . . . is not

to say . . . that Congress may not proscribe purely private

conduct under Section 5 of the Fourteenth Amendment."

Id. at 423, n.8. In fact, this Court has upheld in several

cases the application of civil rights statutes to prohibit

actors from interfering with constitutional rights not

protected by "any provision of the Constitution addressed to

private individuals." Guest, 383 U.S. at 779 (Brennan, J.,

concurring). For example, 18 U.S.C. § 241 has been

found to prohibit private interferences with the right to vote

in a federal election, Ku Klux Klan Cases (Ex Parte

Yarbrough), 110 U.S. 651 (1884); the right to discuss

public affairs or petition for redress of grievances, United

States v. Cruikshank, 92 U.S. 542 (1875); and the right to

inform of violations of federal law, In re Quarles & Butler,

158 U.S. 532 (1895). See generally L. Tribe, American

Constitutional Law §§ 5-15, at 350-52 (2d ed. 1988).

In light of Supreme Court precedent indicating that

Section 5 permits legislation prohibiting private interference

with Fourteenth Amendment rights, Congress’ enactment of

14

FACE is well within the boundaries of Section 5, for it is

"plainly adapted" to securing the right to abortion. As the

legislative history demonstrates, the force and obstruction

that FACE is intended to curb threatens to eviscerate every

woman’s ability to exercise her constitutional right to

reproductive choice. Indeed, that is the avowed purpose of

the proscribed activity. S. Rep. at 11. There could be no

better example of the appropriate use of Section 5 authority,

particularly since congressional findings demonstrate that

state and local law enforcement are unable to adequately

address this overwhelming national crisis. Id. at 19.

Moreover, Congress has the power to enact legislation

when constitutional rights are threatened in a manner which

undermines general principles of equality and threatens

equal protection. Indeed, the Supreme Court in Morgan

concluded that Congress’ prohibition on literacy tests for

voting not only secured the right to vote for Puerto Rican

citizens, but would also be “helpful in_ gaining

nondiscriminatory treatment in _ public services" and

obtaining "‘perfect equality." 384 U.S. at 652-53.

Additionally, as Justice O’Connor, speaking for the

majority in City of Richmond v. J.A. Croson Co., 488

U.S. 469, 490 (1989), stated, "[t]he power to enforce [the

provisions of the Fourteenth Amendment] may at times also

include the power to define situations which Congress

determines threaten principles of equality and to adopt

prophylactic rules to deal with those situations."

In enacting FACE, Congress relied not only on

extensive legislative fact-finding to demonstrate that FACE

was necessary to secure the right to reproductive choice,

see supra, but also on its power to craft remedial options to

fully secure equal protection for women. As the Supreme

Court noted in Casey, "[t]he ability of women to participate

equally in the economic and social life of the Nation has

15

been facilitated by their ability to control their reproductive

lives." Casey, 112 S. Ct. at 2809.

As recent events tragically show, the right to abortion

cannot be secured without legislation addressing the

rampant violence and force directed against women and

their health care providers. Thus, Section 5 provides

Congress with more than adequate authority to legislate

against anti-choice violence which threatens to prevent

women from exercising their constitutional right to

reproductive choice.

Il. THE FOURTH CIRCUIT’S DECISION

CONFORMS TO THE DECISION OF EVERY

COURT WHICH HAS CONSIDERED

WHETHER FACE VIOLATES THE FIRST

AMENDMENT.

A. Face Is Not Impermissibly Content Or

Viewpoint Based But Addresses The Severe

Problem Of Anti-Choice Violence To Which

Respondents Have Been Subjected.

The Fourth Circuit’s decision agrees with that of all

other courts, which have uniformly held that FACE does

not violate the First Amendment. E.g., Woodall v. Reno,

47 F.3d 656 (4th Cir. 1995), cert. denied, 63 U.S.L.W.

3644 (June 19, 1995) (No. 94-1417); Cheffer v. Reno, 55

F.3d 1517 (11th Cir. 1995); United States v. Brock, 863 F.

Supp. 851 (E.D. Wis. 1994), appeals docketed, Nos. 95-

1308, 95-1309, 95-1333, 95-1430, 95-1488, and 95-1494

(7th Cir.); Riely_v. Reno, 860 F. Supp. 693 (D. Ariz.

1994); Cook v. Reno, 859 F. Supp. 1008 (W.D. La. 1994),

appeal docketed, No. 94-41194 (Sth Cir.); Council for Life

Coalition v. Reno, 856 F. Supp. 1422 (S.D. Cal. 1994).

As the Fourth Circuit held, FACE is neither content or

16

viewpoint based nor unconstitutionally vague or overbroad.

Pet. App. Al3, A18.

Petitioners’ argument that FACE is content based

focuses on the specific intent requirement in FACE which

prohibits certain activities against a 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." 18 U.S.C. §

248(a)(1).’ Seizing on the word “because” (Pet. 20-21),

Petitioners assert that FACE is therefore content based.

But, as the Fourth Circuit held (Pet. App. A13), the

Constitution permits Congress selectively to protect persons

exercising their rights to obtain or provide reproductive

health services, just as Congress selectively protects a range

of civil rights,* the exercise of the right to vote,’ the right

to hold office,’° and the enjoyment of equal housing

opportunities.'' Likewise, though Title VII makes it

unlawful 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), Title

VII does not prohibit unjust discrimination against an

employee for other reasons, such as left-handedness. State

and federal antidiscrimination and civil rights laws

’More generally, Petitioners object to the use of the Madsen

standard (Pet. 20), even though the court of appeals correctly used the

standard set in United States v. O’Brien, 391 U.S. 367 (1968). Pet.

App. Al4.

*18 U.S.C. § 245.

°18 U.S.C. § 594.

18 U.S.C. § 372.

'42 U.S.C. § 3631(a).

.

|

:

3

17

consistently have been upheld against First Amendment

challenge. See, e.g., Hishon v. King & Spalding, 467 U-S.

69 (1984) (Title VII); Roberts v. United States Jaycees, 468

U.S. 609 (1984) (state antidiscrimination law).

Petitioners’ weak attempt to conjure up a constitutional

flaw fails in light of Wisconsin v. Mitchell, 113 S. Ct.

2194 (1993) (violence and physical assaults not protected by

First Amendment), upon which the court of appeals

correctly relied in holding that FACE is not content-based.

Pet. App. Al2. Congress, like the state of Wisconsin, can

enact laws to punish illegal conduct motivated by certain

biases. Thus, Congress can address the intentional

obstruction of access to reproductive health services

because "this conduct is thought to inflict greater individual

and societal harm,” Mitchell, 113 S. Ct. at 2201, than, for

example, obstructing access to businesses and schools, the

examples Petitioners cite. Pet. 20. As the Fourth Circuit

observed, "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." Pet. App. Al3. Just

as civil rights statutes may identify as especially

troublesome violence triggered by a victim’s race, so can

FACE address the gauntlet of violence women face outside

clinics providing reproductive health services.

Petitioners argue that FACE is viewpoint based while

acknowledging that this infirmity is only "implicit in the

text" of FACE. Pet 22. Petitioners therefore ignore the

first principle of statutory construction: in interpreting a

statute, "we look first to its language." Reves v. Emst &

Young, 113 S. Ct. 1163, 1169 (1993) (citations omitted).

The unambiguous language of FACE applies to "whoever"

engages in the prohibited conduct; therefore, as the Fourth

18

Circuit noted, "the viewpoint of the obstructer is

irrelevant." Pet. App. All.

In addition, FACE prohibits certain actions involving

"reproductive health services." These services are broadly

defined to include "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 reproductive system, including

services relating to pregnancy or the termination of a

pregnancy." 18 U.S.C. § 248(e)(5). As the Fourth Circuit

recognized (Pet. App. All), FACE protects not only

abortion clinics, but also facilities offering pregnant women

alternatives to abortion, including AAA Women for Choice,

Inc., the facility directed by Petitioner Patricia Lohman that

offers pregnant women counsel regarding alternatives to

abortion.

Moreover, Petitioners conveniently forget that most, if

not all, statutes are enacted in response to specific

problems. Indeed, "a statute is not rendered non-neutral

simply because one ideologically defined group is more

likely to engage in the proscribed conduct." Pet. App. 13.

See United States_v. O’Brien, 391 U.S. 367 (1968)

(upholding a statutory prohibition on burning draft cards

despite the fact that most violators would likely oppose the

Vietnam War). For example, even though certain statutes

were enacted in response to civil rights protestors, they

were upheld when written in a neutral fashion. In Cameron

v. Johnson, 390 U.S. 611 (1968), for instance, the Court

upheld against a First Amendment challenge the Mississippi

Anti-Picketing Law, which prohibited picketing "in such a

manner as to obstruct or unreasonably interfere with free

ingress or egress to and from any public premises," 390

U.S. 611, 612 n.1 (quoting Miss. Code Ann. § 2318.5

(1966)), even though the law had been enacted in response

le ee cma 6 ote Na

19

to specific pickets held to protest racial voting

discrimination, see id. at 620.

Because FACE is not content or viewpoint based, it

should be evaluated under the three-part test set out in

United States v. O’Brien, 391 U.S. 367 (1968), as the

Court of Appeals concluded.'? Pet. App. Al4. To meet

O’Brien’s "substantial government interest" criterion, the

Fourth Circuit correctly identified two groups of

government interests, "protecting public health, safety and

commerce [and] . . . protecting women and men from

violence and threats in the exercise of their rights," which

"together, or separately . . . are significant." Pet. App.

Al4-15. FACE also satisfies O’Brien’s second prong

because, as set forth above, it is "justified without reference

to the message or viewpoint of anyone who might violate

it.” Id. at AlS.

Finally, the last component of O’Brien is met because

FACE "proscribes no more expressive conduct than

necessary to protect safe and reliable access to reproductive

health services." Id. at Al6. FACE "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." Id.

‘Despite Petitioners’ vehement opposition to this Court’s opinion in

Madsen v. Women’s Health Center, Inc., 114 S. Ct. 2516 (1994), that

decision reinforces the constitutionality of FACE. In Madsen this Court

rejected plaintiffs’ characterization of an injunction, which prohibited,

inter alia, essentially similar conduct that FACE bans, as a content and

viewpoint based restriction on speech. Moreover, this Court noted

that a generally applicable statute such as FACE, as opposed to the

injunction at issue in Madsen, would be held to a lower standard of

constitutional review. Id. at 2524-25.

20

B. Face Is Neither Overbroad Nor Vague.

FACE is neither overbroad nor vague. Its key

Statutory terms are defined in the statute, are not arcane,

and have been upheld in decisions of this Court and other

courts as not unconstitutionally vague.

Petitioners argue that though FACE may legitimately

regulate conduct, it does so in an overbroad fashion, which

may implicate protected conduct. Pet. 25. A statute is

unconstitutionally overbroad in a facial challenge, however,

only if it is substantially overbroad, meaning that it reaches

a Significant amount of speech protected by the First

Amendment. Houston v. Hill, 482 U.S. 451, 458 (1987).

However, as the court below observed, “even though

[FACE] might be applied to some protected expression,

such as peaceful picketing, that picketing would he

prohibited only in the most narrow and _ justifiable

circumstances.” Pet. App. Al7.

A statute is unconstitutionally vague if it fails to 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 provisions of FACE that

Petitioners assert are vague are nearly identical to terms

upheld in Cameron v. Johnson, 390 U.S. 611 (1968). The

Statute in Cameron prohibited picketing in a manner that

"obstructs" or "unreasonably interferes with free ingress or

egress" to and from courthouses. 390 U.S. at 616. The

Court in that case noted that the words "obstruct" and

"unreasonably interfere" are easily understood, do not

require guessing, and are not susceptible to numerous

interpretations.

Far from chilling free expression FACE was carefully

drafted to protect First Amendment rights and therefore

21

Petitioners are free to continue disseminating their anti-

choice message. They are not free, however, to deprive

women of their constitutional rights and engage in a

campaign of violence and force against women and their

health care providers.

CONCLUSION

As starkly demonstrated by the severe violence that has

continued since its enactment, FACE is not a panacea.

However, its prohibition of unlawful conduct is a needed

response to a nationwide crisis that threatens Respondents,

the public health and safety, and the reproductive liberties

of all American women.

The Petition for a writ of certiorari should be denied.

Respectfully submitted,

Priscilla Smith Deborah A. Ellis

Kathryn Kolbert (Counsel of Record)

CENTER FOR NOW LEGAL DEFENSE

REPRODUCTIVE LAW AND EDUCATION FUND

& POLICY 99 Hudson Street

120 Wall Street, 18th Floor New York, NY 10013

New York, NY 10005 (212) 925-6635

(212) 514-5534

Attorneys for Respondents

Dated: July 26, 1995