73 F.3d 675 (7th Cir. 1995), 95-1871, United States v. Wilson

Docket Nº:95-1871.
Citation:73 F.3d 675
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. George WILSON, et al., Defendants-Appellees.
Case Date:December 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 675

73 F.3d 675 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellant,

v.

George WILSON, et al., Defendants-Appellees.

No. 95-1871.

United States Court of Appeals, Seventh Circuit

December 29, 1995

Argued Sept. 19, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb.

21, 1996.[*]

Page 676

Mel S. Johnson, Office of United States Attorney, Milwaukee, WI, Eileen Penner (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for U.S.

Robert J. Penegor, Carl W. Chesshir, Steven C. Spear, Brookfield, WI, for George L. Wilson.

Rene L. Wright (argued), Soldotna, AK, for John R. Stambaugh.

Brian Fahling (argued), Bruce W. Green, Stephen M. Crampton, American Family Association, Tupelo, MS, John J. Broderick, Syosset, NY, for Michael M. Skott.

Alexander Flynn (argued), Milwaukee, WI, for James A. Ketchum.

Robert C. Braun, West Allis, WI, pro se.

William R. Kerner (argued), Wauwatosa, WI, for Daniel J. Balint.

Lorie A. Chaiten, Camille E. Bennett, Sonnenschein, Nath & Rosenthal, Chicago, IL, David A. Strauss, University of Chicago Law School, Chicago, IL, for Planned Parenthood Federation of America, Incorporated, amicus curiae.

Deborah A. Ellis, New York City, Catherine Albisa, Center for Reproductive Law & Policy, New York City, for American College of Obstetricians and Gynecologists, American Civil Liberties Union Foundation, American Civil Liberties Union of Wisconsin, American Medical Women's Association, Feminist Majority Foundation, National Abortion Federation, National Center for the Pro Choice Majority, National Organization for Women, Incorporated, National Women's Law Center, Wisconsin National Organization for Women, Wisconsin Women's Network, Women's Law Project, Women's Legal Defense Fund, amicus curiae.

Before CUMMINGS, BAUER and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

At issue is the constitutionality of the Freedom of Access to Clinic Entrances Act ("Access Act"), 18 U.S.C. Sec. 248, which proscribes physical obstruction of facilities providing reproductive health services. The district

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court held that the Access Act exceeded Congress's power to legislate under both the Commerce Clause and Section 5 of the Fourteenth Amendment. United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995). Every other federal court to address the issue has upheld the constitutionality of the Access Act, including two circuit courts. American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.1995), certiorari denied, --- U.S. ----, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995). 1 We agree with these courts and reverse the district court's decision.

I.

Background

An FBI agent attested to the underlying facts. On the morning of September 29, 1994, the defendants blockaded the entrances of the Wisconsin Women's Health Care Center located in Milwaukee, Wisconsin. A Plymouth automobile was wedged into the front entry of the clinic, barring the doors and preventing egress from and ingress to the clinic. Three defendants welded themselves into the Plymouth with an interlocking steel apparatus. The upper body of one defendant protruded through a hole cut in the floor of the automobile and his lower body was on the ground underneath the car.

A second car blocked the rear door, pressing against it and preventing ingress and egress. The other three defendants welded themselves in various positions to and in the second car. One defendant was located in the driver's seat, restrained by a welded steel device confining his head in a steel harness, which was locked around his head by placing a car jack inside a hollow steel pipe. Another defendant was in a hole cut in the passenger-side floorboard, with his lower body resting on the pavement and his upper body confined inside an electric clothes dryer. His head was restrained in a locked harness secured around his throat. The third defendant was in the right rear passenger seat with his arm encased and handcuffed inside a steel pipe.

From 6:30 a.m. to 11:00 a.m., Milwaukee firefighters used hydraulic equipment, blow torches, saws, and pry bars to extricate the defendants. During this time, two defendants told police officers and firefighters that they (the officers) were assisting in the murder of babies. Anti-abortion signs were displayed near the automobiles. During the blockade, neither clinic staff members nor patients could enter the building. The blockade barred 12 patients who had appointments between 7:00 a.m. and 11:00 a.m. from receiving scheduled abortions.

On September 30, 1994, the United States charged the six defendants with intentionally interfering with and intimidating persons seeking to provide and obtain reproductive health services in violation of the Access Act. Defendants were charged under Section 248(a)(1) of the Act, which subjects to criminal penalties whoever "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." 18 U.S.C. Sec. 248(a)(1).

II.

District Court Decision

The defendants moved to dismiss the charges, in part because the Access Act exceeded Congress's authority to legislate. A federal magistrate judge rejected the defendants' motion in an Order and Recommendation dated November 30, 1994. On March 16, 1995, the district court rejected the magistrate's recommendation and dismissed the charges, holding that Section 248(a)(1) of the Access Act is "unconstitutional and void." 880 F.Supp. at 623. Judge Randa rejected

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both bases of legislative power asserted by Congress: the Commerce Clause and Section 5 of the Fourteenth Amendment.

Under the Commerce Clause, the court stated that it would defer to a congressional finding that a regulated activity affects interstate commerce if there is a rational basis for the finding. The court interpreted the rational basis test to mean that "if the logic underlying the stated connection to interstate commerce would provide a basis for regulating any human activity, that logic is not rational within the context of the Constitution." Id. at 626. Applying the rational basis test, the district court found that the Access Act could only be justified as an activity "affecting commerce." Id. at 627 (citing the third of three categories reached by the Commerce Clause as outlined in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)). The court distilled three types of activities "affecting commerce" based on Supreme Court precedent and found that none compelled a finding of constitutionality: (1) trivial activity that undermines a national commercial regulatory scheme; (2) commercial activity that affects interstate travel; and (3) activity that employs violent means to achieve an economic purpose. 880 F.Supp. at 627-630.

The district court then declined to rely on four congressional findings to extend Supreme Court precedent, reasoning that relying on any of the four findings would be a basis for federal regulation of any human activity. First, the finding that abortion clinics operate within the stream of interstate commerce does not differentiate other human activities, because "all persons and all entities operate within the stream of commerce." Id. at 630. Second, the finding that some individuals cross state lines to provide or obtain abortions is not limited, given the high mobility of our society. Third, Congress found that obstructing access to abortion clinics decreases the number of abortions performed and therefore negatively impacts interstate commerce. The district court reasoned that this finding is also limitless, because it would allow Congress to regulate any activity that decreases the sale or purchase of specific goods, including shoplifting. Finally, the court rejected Congress's finding that the problem is national in scope and beyond the ability of the states to control as irrelevant to the question whether the Access Act substantially affects interstate commerce.

III.

Discussion

A.

We review a determination of the constitutionality of a federal statute de novo. Smith v. Shalala, 5 F.3d 235, 238 (7th Cir.1993), certiorari denied, --- U.S. ----, 114 S.Ct. 1309, 127 L.Ed.2d 660 (1994). Our jurisdiction is premised on 28 U.S.C. Sec. 1291.

Congress passed the Access Act to address a nation-wide campaign of blockades, invasions, vandalism, threats, and other violence barring access to reproductive health facilities. H.R.Rep. No. 306, 103d Cong., 2d Sess. 6 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 703. Congress found that more than 1,000 acts of violence against providers of reproductive health services were reported in the United States from 1977 to April 1993, including "at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic 'invasions,' and one murder." In addition, more than 6,000 blockades and other disruptions have been reported since 1977. H.R.Rep. at 6-7, 1994 U.S.C.C.A.N. at 703-704.

Congress found that state and local law enforcement agencies have failed to address effectively the nationwide assault on reproductive health facilities and that local laws such as trespass, vandalism, and assault have proven inadequate to address the problem. H.R.Rep. at 10, 1994 U.S.C.C.A.N. at 707; see also S.Rep. No. 117, 103d Cong., 1st Sess. 3, 18-21 (1993). Federal law was also inadequate. Prior to the Supreme Court's decision in Bray v. Alexandria Women's Health Clinic, 506...

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