Cheffer v. Reno

Decision Date23 June 1995
Docket NumberNo. 94-2976,94-2976
PartiesMyrna CHEFFER, individually; Judy Madsen, individually, Plaintiffs-Appellants, v. Janet RENO, Attorney General of the United States of America, in her official capacity; Charles R. Wilson, United States Attorney for the Middle District of Florida, in his official capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Mathew Duane Staver, Frederick Herbert Nelson, Staver & Associates, Orlando, FL, for appellants.

Neil H. Koslowe, Mark B. Stern, Jonathan R. Siegel, Mark Levy, U.S. Dept. of Justice (Civil Division, Appellate Staff), Washington, DC, for appellees.

Catherine Albisa, Center for Reproductive Law, New York City, amiciae curiae for Center for Reproductive Law.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellants, anti-abortion activists, challenge the constitutionality 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) (codified at 18 U.S.C. Sec. 248). Appellants argue that Congress lacks authority to pass the Access Act and, therefore, the Act infringes on state sovereignty in violation of the Tenth Amendment. Appellants also challenge the Act's constitutionality on its face. They urge that the Act is vague and overbroad, content and viewpoint based, and acts as a prior restraint, in violation of their First Amendment free speech rights. Appellants further claim that the Act violates the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act of 1993 ('RFRA'), 42 U.S.C. Secs. 2000bb to 2000bb-4. Finally, appellants argue that the Access Act is unconstitutional because it imposes excessive fines and is cruel and unusual under the Eighth Amendment. 1 The district court dismissed appellants' claims. Because we find the Act withstands appellants' constitutional challenges, we affirm.

I. BACKGROUND

Congress passed the Access Act in response to increasing incidents of violence and obstruction at abortion clinics. 2 The stated purpose of the Act is "to protect and promote the public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services." Access Act, Sec. 2. The Act imposes civil and criminal penalties against anyone who:

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

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

Access Act, Sec. 3(a) (codified at 18 U.S.C. Sec. 248(a)). 3

Appellants, Myrna Cheffer and Judy Madsen, are strongly opposed to the practice of abortion. They assert that prior to the enactment of the Access Act, they attempted to persuade pregnant women and others to seek alternatives to abortion through the distribution of literature, oral protest, and sidewalk counseling outside of abortion clinics. In addition, Madsen admits that she has participated in sit-ins violating the trespass laws. 4 Appellants have not been arrested or charged with violation of the Access Act. However, appellants urge that they have been "chilled" in the exercise of their constitutional rights because they fear punishment under the Act for their expressive activity in opposition to abortion.

II. CONGRESS' AUTHORITY TO PASS THE ACCESS ACT

Appellants assert that Congress lacked authority to pass the Access Act, and thus that the Act infringes on state sovereignty under the Tenth Amendment. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. Therefore, Congress' valid exercise of authority delegated to it under the Constitution does not violate the Tenth Amendment. United States v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). 5

Congress identified both the Commerce Clause and section 5 of the Fourteenth Amendment as sources of its authority to pass the Access Act. Access Act, Sec. 2. Recently addressing a similar constitutional attack against the Access Act, the Fourth Circuit concluded that the Act is within Congress' Commerce Clause power. American Life League, Inc. v. Reno, 47 F.3d 642, 647 (4th Cir.1995). We agree with the Fourth Circuit that the Access Act is within Congress' Commerce power, and adopt the reasoning in Part III.A. of the American Life League decision on this issue.

However, we pause to discuss the effect on this case of the recent Supreme Court Commerce Clause decision, United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Decided after American Life League, Lopez struck down the Gun-Free School Zones Act as exceeding Congress' authority under the Commerce Clause. Id. at ---- - ----, 115 S.Ct. at 1630-31. The Gun-Free School Zones Act made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. Sec. 922(q)(1)(A). In enacting the Gun-Free School Zones Act, Congress made no findings on whether the Act was within its Commerce Clause authority. In particular, no express legislative findings were made regarding the effects upon interstate commerce of gun possession in a school zone. --- U.S. at ----, 115 S.Ct. at 1631. Although the Court noted that "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," id., such findings assist the Court in evaluating whether the regulated activity "substantially affects" interstate commerce in cases where the effect on commerce is not obvious. Id. at ---- - ----, 115 S.Ct. at 1631-32. The Court held that the Gun-Free School Zones Act exceeded Congress' authority to regulate activities that "substantially affect" interstate commerce; "[t]he Act neither regulates a commercial activity nor contains a requirement that the possession [of a firearm] be connected in any way to interstate commerce." Id. at ----, 115 S.Ct. at 1626.

Unlike the Gun-Free School Zones Act, the Access Act does regulate commercial activity, the provision of reproductive health services. Moreover, as the Fourth Circuit noted, extensive legislative findings support Congress' conclusion that the Access Act regulates activity which substantially affects interstate commerce. American Life League, 47 F.3d at 647. Congress found that doctors and patients often travel across state lines to provide and receive services, id.; in other words, there is an interstate market with respect to both patients and doctors. In addition, the clinics receive supplies through interstate commerce. Id. Congress further found that violence, and physical obstruction of clinic entrances, threatened interstate commerce in the provision of reproductive health services. Id. Thus, in protecting the commercial activities of reproductive health providers, the Access Act protects and regulates commercial enterprises operating in interstate commerce. See Lopez, --- U.S. at ----, 115 S.Ct. at 1630 ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."). 6 Congress' findings are plausible and provide a rational basis for concluding that the Access Act regulates activity which "substantially affects" interstate commerce. Thus, the Access Act is a constitutional exercise of Congress' power under the Commerce Clause. Because the Access Act is within Congress' Commerce Clause power, it does not violate the Tenth Amendment. 7

III. FREEDOM OF EXPRESSION

American Life League also addressed First Amendment facial challenges to the Access Act. 47 F.3d at 648-54. The Fourth Circuit found that the Access Act was not unconstitutionally vague or overbroad, nor was the Act content or viewpoint based. Id. Unable to improve on the Fourth Circuit's analysis, we follow American Life League and adopt its rationale on the free speech issues.

We add only a brief elaboration. The clear implication in American Life League is that the term "force" in the context of the instant statute means "physical force." Id. at 648 ("The use of force or violence is outside the scope of First Amendment protection. Wisconsin v. Mitchell, --- U.S. ----, ----, 113 S.Ct. 2194, 2199, 124 L.Ed.2d 436 (1993) ('a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment')"). We agree with the Fourth Circuit that the clear meaning of "force" in this statute is "physical force." Thus, the prohibition of "force" in this statute does not involve pure speech; rather, it involves only physical force.

The term "force" is often interpreted to mean "physical force." See Johnson v. Mississippi, 421 U.S. 213, 222-27, 95 S.Ct. 1591, 1597-99, 44 L.Ed.2d 121 (1975) (interpreting similar language--"by force or threat of force willfully injures, intimidates, or interferes with"--to provide protection against violence). The context of this particular statute reinforces the "physical force" interpretation. The Access Act proscribes intentional injury, intimidation or interference, but only if the same is committed "by force,...

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