Terry v. Reno

• Decision Date: 10 December 1996
• Docket Number: No. 95-5419,95-5419
• Citation: 101 F.3d 1412
• Parties: , 65 USLW 2439 Randall A. TERRY, et al., Appellants, v. Janet RENO, Attorney General of the United States of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1412

101 F.3d 1412

322 U.S.App.D.C. 124, 65 USLW 2439

Randall A. TERRY, et al., Appellants, v. Janet RENO, Attorney General of the United States of

America, et al., Appellees.

No. 95-5419.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 7, 1996.

Decided Dec. 10, 1996.

Appeal from the United States District Court for the District of Columbia (No. 94cv01154).

Mark N. Troobnick, Germantown, MD, argued the cause, for appellants. With him on the brief were Jay A. Sekulow, Virginia Beach, VA, Colby M. May and James M. Henderson, Sr., Washington, DC.

Sushma Soni, Attorney, U.S. Department of Justice, Washington, DC, argued the cause, for appellees. With her on the brief were Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., U.S. Attorney, and Mark B. Stern, Attorney, Washington, DC.

Celeste Lacy Davis, Chicago, IL, and John Vanderstar, Washington, DC, were on the brief for intervenor-appellees.

Before: WILLIAMS, SENTELLE and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this case, anti-abortion protesters challenge the constitutionality of the Freedom of Access to Clinic Entrances Act. Enacted in 1994, that statute prohibits the use or threat of force or physical obstruction against a person seeking to obtain or provide reproductive health services, including abortions. Agreeing with the district court and joining four of our sister circuits, we sustain the constitutionality of the Access Act. Because the legislative record contains sufficient findings to conclude that violent and obstructive protest activities substantially affect interstate commerce in reproductive health services Congress did not exceed its commerce power in enacting the statute. The Access Act also does not violate the First Amendment. It prohibits conduct, not speech, and its prohibition is narrowly tailored to further the Government's legitimate interest in providing safe access to reproductive health services.

I

Reacting to a nationwide pattern of blockades, vandalism, and violence aimed at abortion clinics and their patients and employees, Congress enacted the Freedom of Access to Clinic Entrances Act. 18 U.S.C. § 248 (1994). Referred to throughout this opinion as the Access Act, the statute provides:

(a) Prohibited Activities.--Whoever--

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with ... any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;

....

(3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services ...

shall be subject to [criminal penalties and civil remedies], except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor.

18 U.S.C. § 248. According to the Access Act's rules of construction, nothing in it "shall be construed ... to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution...." Id. § 248(d)(1). The statute also defines the terms "interfere with," "intimidate," "physical obstruction," and "reproductive health services." Id. § 248(e)(2)-(5). "Physical obstruction," for example, means "rendering impassable ingress to or egress from a facility that provides reproductive health services ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous." Id. § 248(e)(4). Criminal penalties under the Access Act vary depending on whether the offense was nonviolent or violent, and whether the offender was a first-time violator or a repeat offender. Id. § 248(b).

On May 26, 1994, the day the President signed the Access Act into law, appellants filed suit in the United States District Court for the District of Columbia challenging the constitutionality of the Act both on its face and "as applied or threatened to be applied" to them. Appellants are anti-abortion activists from New York, Virginia, Ohio, and the District of Columbia, whose protest activities take place in the District of Columbia and elsewhere in the United States. Compl. at 3-5. Appellants picket abortion clinics, distribute literature, offer "sidewalk counseling" to women entering abortion facilities, and lead anti-abortion protesters in public prayer and slogan chanting. Id. at 6-9. Several appellants participated in "sit-ins," which "did have the effect, temporarily, of interfering with and blocking access to abortion facilities." Id. at 9. According to five of the six appellants, protesting against abortion "serves a higher and more compelling purpose than that served by traditional laws against trespass and blocking access to abortion facilities." Id. at 8.

The district court granted the Government's motion for judgment on the pleadings pursuant to FED.R.CIV.P. 12(c). Finding that the statute " 'protects and regulates commercial enterprises operating in interstate commerce,' " the court ruled that Congress had the power to enact the statute under the Commerce Clause. Terry v. Reno, Civ. No. 94-1154, slip op. at 11 (D.D.C. Nov. 21, 1995) (quoting Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir.1995)). Relying on American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995), the district court held that because the Access Act was viewpoint-neutral and narrowly tailored to further substantial government interests, it did not violate the First Amendment. Terry, slip op. at 5-8. The district court also ruled that the Act did not violate principles of due process or equal protection, that it did not violate the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (1994), and that plaintiffs' Eighth Amendment claims were not ripe for review. Terry, slip op. at 9-13.

In their "Statement of the Issues," appellants list nine challenges to the Access Act. Appellants' Br., at vi. By failing to brief five of these challenges, they have waived them. See FED. R.APP. P. 28(a)(6); Democratic Cent. Comm. v. Washington Metro. Area Transit Comm'n, 485 F.2d 786, 790 n. 16 (D.C.Cir.1973) (where petitioners offer "no argument whatever" in support of certain issues on appeal, court will decline to consider them). Rule 28(a)(6) requires that the argument section of an appellate brief "contain the contentions of the appellant on the issues presented, and the reasons therefor ... ." FED. R.APP. P. 28(a)(6). Simply listing the issues on review without briefing them does not preserve them. Cratty v. United States, 163 F.2d 844, 851 (D.C.Cir.1947) (where certain grounds for appeal are "stated by the appellants but not urged in their brief," they are treated as abandoned). We therefore address only the arguments appellants have briefed: that the Access Act exceeds Congress's commerce power; that it abridges appellants' First Amendment rights; that it violates the Equal Protection Clause; and that the district court erred in granting the Government's motion for judgment on the pleadings.

II

Appellants' Commerce Clause challenge rests on the Supreme Court's recent decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). There, the Court struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1994), which made possession of a gun within a school zone a federal offense. Of the three categories of activity the Court held that Congress could regulate pursuant to its Commerce Clause authority, only the third is relevant to this case: Congress can regulate activities if it has a rational basis for concluding that they "substantially affect interstate commerce." Lopez, 514 U.S. at ----, 115 S.Ct. at 1630. The Lopez Court found that possession of guns within school zones was not commercial in nature, that the statute did not contain a jurisdictional element to ensure on a case-by-case basis that the gun in question was connected with interstate commerce, and that Congress had made no findings about the effect gun possession in school zones has on interstate commerce. Id. at ---- - ----, 115 S.Ct. at 1630-32. The Court then considered and rejected the Government's arguments, developed only after the statute's constitutionality was challenged in court, linking the possession of guns near schools to interstate commerce. Id. at ---- - ----, 115 S.Ct. at 1632-33. Because it could not conclude that Congress had a rational basis for finding that gun possession within school zones had a substantial effect on interstate commerce, the Court declared the statute unconstitutional. Id. at ----, 115 S.Ct. at 1634.

Lopez's impact on the limits of the commerce power is a hotly debated issue. Because the Access Act does not test those limits, we need not enter that fray. Indeed, we can begin where the Lopez Court could not--with congressional findings regarding the effect on interstate commerce of anti-abortion violence and blockades of abortion clinics.

Although no interstate commerce findings appear in the text of the statute, we consider "even congressional committee findings" regarding the effect on interstate commerce of the regulated activity. Lopez, 514 U.S. at ----, 115 S.Ct. at 1631; see, e.g., Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 924-25, 108 L.Ed.2d 1 (1990) (citing House Report in discussion of congressional findings regarding effect on interstate commerce of federal "rails-to-trails" statute). The Senate Committee on Labor and Human Resources, which held hearings on anti-abortion violence and drafted the bill that ultimately became the Access Act, concluded that for several reasons...