American Life League, Inc. v. Reno, 94-1869

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation47 F.3d 642
Docket NumberNo. 94-1869,94-1869
PartiesAMERICAN LIFE LEAGUE, INCORPORATED; David G.P. Englefield; Patricia Lohman; Gerald Weymes, Reverend; Antoinette C. Cleary; Patricia Savino, Plaintiffs-Appellants, v. Janet RENO; National Abortion Federation; Commonwealth Women's Clinic; Capitol Women's Center, Incorporated; George Tiller, Doctor; Susan Wicklund, Doctor; National Organization for Women, Defendants-Appellees. American Civil Liberties Union; ACLU Foundation of Virginia, Amici Curiae.
Decision Date13 February 1995

ARGUED: Marion Edwyn Harrison, Law Office Marion Edwyn Harrison, Falls Church, VA, for appellants. Mark I. Levy, Civ. Div., U.S. Dept. of Justice, Washington, DC; Deborah A. Ellis, NOW Legal Defense and Educ. Fund, New York City, for appellees. ON BRIEF: John Baker, Jr., Grover Joseph Rees, Daniel M. Redmond, Law Offices Marion Edwyn Harrison, Falls Church, VA, for appellants. Frank W. Hunger, Asst. Atty. Gen., Helen F. Fahey, U.S. Atty., Mark

B. Stern, Jonathan R. Siegel, Civ. Div., Deval L. Patrick, Asst. Atty. Gen., William R. Yeomans, Counsel to the Asst. Atty. Gen. Civ. Rights Div., U.S. Dept. of Justice, Washington, DC; Martha F. Davis, NOW Legal Defense and Educ. Fund; Catherine Albisa, Center for Reproductive Law & Policy, New York City, for appellees. Catherine Weiss, Louise Melling, Karen Leiter, Reproductive Freedom Project, Steven R. Shapiro, American Civ. Liberties Union Foundation, New York City, Stephen B. Pershing, American Civ. Liberties Union Foundation of Virginia, Richmond, VA, for amici curiae

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.


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. Sec. 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 not barred by principles of federalism. Second, we decide that the Act does not violate the First Amendment's Free Speech Clause. The Act targets unprotected activities, such as violence and clinic blockades. However, to the extent that the Act might incidentally proscribe some conduct with expressive elements (such as peaceful but obstructive picketing), we examine it under the First Amendment. Because we find that the Act is content and viewpoint neutral, we subject it to intermediate scrutiny. Under that level of scrutiny we conclude that the Act serves substantial government interests, that it is not aimed at 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 Exercise Clause or the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Secs. 2000bb to 2000bb-4.


On May 26, 1994, the same day the President signed the Access Act into law, plaintiffs filed this action to challenge it in the United 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 Gerald Weymes, all oppose abortion "upon theological, moral and other grounds." The Reverend Mr. Weymes has often prayed near clinics that perform abortions. The other individual plaintiffs and some ALL members have "demonstrated, prayed and sidewalk-counseled within the vicinity of abortion clinics." Plaintiffs' activities have been peaceable, and they do not condone "nonpeaceable or violent conduct." Their actions, however, have physically obstructed access to abortion clinics.

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.

Plaintiffs brought this action against Janet Reno, Attorney General of the United States. The district court allowed five additional defendants to intervene: the National Abortion Federation; the National Organization for Women; Commonwealth Women's Clinic and Capitol 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 Attorney 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 dismissing 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 violence against abortion providers and more than 6,000 clinic blockades were reported in the United States. S.Rep. 117, 103d Cong. 1st Sess. 31 (1993); H.R.Rep. No. 306, 103d Cong.2d Sess. 6-7 (1993) reprinted in 1994 U.S.C.C.A.N. 699, 703-704. "These acts included at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic invasions, and one murder." Id. Congress concluded 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 3, 18-21; H.R.Rep. No. 306 at 10, 1994 U.S.C.C.A.N. 707.

The Access Act aims to protect and promote public safety and health "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." Act, Sec. 2. To that end the Act provides criminal and civil 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....

Act, Sec. 3(a). 1

The Access Act defines its key terms. Act, Sec. 3(e). The term "interfere with" means "to restrict a person's freedom of movement." "Intimidate" 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." "Reproductive 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 rule of construction: "[n]othing in this section shall be construed--(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution." Act, Sec. 3(d).

The criminal penalties prescribed by the Act vary with the nature of the violation. For example, a first offense involving only a nonviolent 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, Sec. 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, Sec. 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 Attorney General. Id.

We turn now to plaintiffs' several challenges to the Act.


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, Sec. 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 provide Congress with authority.

A federal statute is valid under the Commerce Clause if Congress (1) rationally concluded that the...

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