Norton v. Ashcroft

• Decision Date: 31 July 2002
• Docket Number: No. 00-2487.,00-2487.
• Citation: 298 F.3d 547
• Parties: Annelore B. NORTON and Lois Greiffendorf, Plaintiffs-Appellants, v. John ASHCROFT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

298 F.3d 547

Annelore B. NORTON and Lois Greiffendorf, Plaintiffs-Appellants, v. John ASHCROFT, et al., Defendants-Appellees.

No. 00-2487.

United States Court of Appeals, Sixth Circuit.

Argued: June 13, 2002.

Decided and Filed: July 31, 2002.

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Robert J. Muise, (argued and briefed), Kimberly A.R. Daniels (briefed), Thomas More Center for Law & Justice, Ann Arbor, MI, for Plaintiffs-Appellants.

Robert I. Dodge, Office of U.S. Atty., Grand Rapids, MI, Mark B. Stern (briefed), Sushma Soni (argued and briefed), U.S. Department of Justice, Civil Div., Appellate Section, Washington, D.C., for Defendants-Appellees.

Before MARTIN, Chief Circuit Judge; KEITH and KENNEDY, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

Plaintiffs Annelore B. Norton and Lois Greiffendorf, anti-abortion activists, appeal the district court's determination that (1) the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248, does not, on its face, violate plaintiffs' First Amendment rights of free speech and freedom of association; (2) plaintiffs' as-applied First Amendment challenge is not ripe for judicial review; (3) Congress validly enacted the Act pursuant to its Commerce Clause powers; and, (4) the Act does not violate plaintiffs' rights under the Equal Protection Clause. We AFFIRM.

I.

This case arises out of plaintiffs' protests at the Planned Parenthood Clinic in Kalamazoo, Michigan. Norton, a volunteer nurse, and Greiffendorf, a teacher in a Roman Catholic school, regularly picketed, prayed, handed out literature, and attempted to counsel individuals who entered the Clinic. Typically, plaintiffs stood on the public sidewalk on either side of the Clinic's driveway. Although plaintiffs claim they do not intend to block access to the Clinic, on some occasions, drivers would stop in the Clinic's driveway to take a leaflet from, or speak with, one of the plaintiffs.

Concerned about potential obstruction, Clinic employees made several complaints to state and federal law enforcement. In response, the United States Marshall for the Western District of Michigan requested Norton attend a meeting with law enforcement and Clinic employees. Norton attended the meeting on June 1, 2000, along with her attorney, John Lohrstorfer. At the meeting, federal agents discussed Norton's activity in handing out leaflets and speaking with individuals in cars stopped in the Clinic driveway. The agents advised Norton that she was causing drivers to stop in the driveway, thereby impeding access to the Clinic. Gerry Alexander, a Federal Bureau of Investigation agent, informed Norton they were concerned about a "pattern of activity" and that such a pattern could be considered a violation of the Freedom of Access to Clinic Entrances Act. The agents also informed Norton that she would not risk prosecution if she picketed, prayed and counseled across the street from the Clinic.

In a letter dated June 2, 2000, the government advised the plaintiffs that "they will need to communicate with individuals visiting the clinic at some other point — either across the street or at some other area where they are not blocking access to the clinic." Although Greiffendorf did not attend the meeting, she claims that after reading the June 2 letter, she did not resume her counseling and protesting activities outside the Clinic because she feared arrest.

Norton was not as easily dissuaded. On or about June 19, 2000, Norton returned to the Clinic and prayed on the sidewalk. She did, however, attempt to stay approximately thirty feet from the driveway, so as to avoid stopping cars. Notwithstanding the Clinic sign cautioning "For Traffic Safety Do Not Stop In Drive, Persons Outside Gate Are Not Employees of Planned Parenthood" and Norton's distance from the Clinic driveway, a car stopped in the driveway and called out to Norton. At the same time, a Clinic employee drove up behind the stopped car and began honking her horn. Concerned about arrest, Norton signaled to the first driver to move across the street. Apparently on the same day, an individual who Norton recognized as a Clinic employee, motioned for Norton to approach her car. Fearing entrapment, Norton turned and walked away from the car. Following these incidents, Norton left the Clinic and has not returned.

After a series of letters between counsel, plaintiffs filed suit against the Attorney General, the United States Attorney for the Western District of Michigan, United States Marshal Barbara C. Lee, and FBI Agent Gerry Alexander, in their official capacity, challenging the constitutionality of the Act, and seeking declaratory and injunctive relief. After briefing and a hearing, the district court dismissed plaintiffs' seven-count complaint. Relying on the unanimous precedent of those circuits that have considered the issue, the district court dismissed plaintiffs' facial challenges to the Act. The district court declined to reach the substance of plaintiffs' as-applied challenge, finding such claims unripe for review; and, in the alternative, declined to exercise its discretion to grant declaratory relief under the Declaratory Judgment Act. The district court denied plaintiffs' request for injunctive relief.

II.

This court reviews a district court's dismissal of a complaint de novo. Moore v. City of Harriman, 272 F.3d 769, 771 (6th Cir.2001) (en banc).

All of our sister circuits to address First Amendment facial challenges to the Act have upheld the Act. United States v. Gregg, 226 F.3d 253, 267 (3d Cir.2000), cert. denied, 532 U.S. 971, 121 S.Ct. 1600, 149 L.Ed.2d 467 (2001); United States v. Weslin, 156 F.3d 292, 297 (2d Cir.1998), cert. denied, 525 U.S. 1071, 119 S.Ct. 804, 142 L.Ed.2d 665 (1999), United States v. Bird, 124 F.3d 667, 683-84 (5th Cir.1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998); Terry v. Reno, 101 F.3d 1412, 1418-1421 (D.C.Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Soderna, 82 F.3d 1370, 1374-77 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996); United States v. Dinwiddie, 76 F.3d 913, 921-24 (8th Cir.), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); Cheffer v. Reno, 55 F.3d 1517, 1521-22 (11th Cir.1995); American Life League, Inc. v. Reno, 47 F.3d 642, 648-52 (4th Cir.1995), cert. denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). Finding their analyses persuasive, we join this uniform line of decisions and hold that the Act does not, on its face, violate the First Amendment.

A.

Plaintiffs argue that the Act only restricts the speech of abortion opponents, and is therefore a content-based restriction. A statute that regulates speech or conduct "based on hostility — or favoritism — toward the underlying message expressed" is content-based. R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The Act, however, does not directly apply to speech, but rather prohibits three types of conduct — use of force, threat of force, and physical obstruction¹ — which are not protected by the First Amendment. See Wisconsin v. Mitchell, 508 U.S. 476, 484, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) ("[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment."); Cameron v. Johnson, 390 U.S. 611, 615-17, 88 S.Ct. 1335, 20 L.E.2d 182 (1968) (rejecting First Amendment challenge to a law that prohibited obstructing access to a courthouse). Yet we recognize the Act "might incidentally affect some conduct with protected expressive elements, such as peaceful but obstructive picketing." See American Life League, 47 F.3d at 648; see also Weslin, 156 F.3d at 297.

To the extent the Act implicates protected expression, we find that it does so in a content-neutral manner. The Act prohibits interference with a variety of "reproductive health services," including all "medical, surgical, counseling or referral services relating to the human reproductive system." 18 U.S.C. § 248(e)(5) (2002). Thus, the Act prohibits interference with not only abortion-related services, it also prohibits interference with counseling regarding abortion alternatives. See Terry, 101 F.3d at 1419. Moreover, the Act applies to anyone who violates its terms, regardless of ideology or message. See Weslin, 156 F.3d at 297. Indeed, the Act has been applied to at least one pro-choice protestor who threatened workers at an anti-abortion facility. See United States v. Mathison, Crim. No. 95-085-FVS (E.D.Wash.1995). As the Eighth Circuit noted, the Act "would prohibit striking employees from obstructing access to a clinic in order to stop women from getting abortions, even if the workers were carrying signs that said, `We are underpaid!' rather than `Abortion is wrong!'" Dinwiddie, 76 F.3d at 923. That most of the individuals who are prosecuted under the Act are abortion opponents is irrelevant because there is no disparate impact theory under the First Amendment. Soderna, 82 F.3d at 1376 ("A group cannot obtain constitutional immunity from prosecution by violating a statute more frequently than any other group.").

As a content-neutral restriction, the Act must withstand intermediate scrutiny. Gregg, 226 F.3d at 268. A statute passes intermediate scrutiny "[1] if it furthers an important or substantial government interest; [2] if the governmental interest is unrelated to the suppression of free expression; and [3] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.E.2d 672 (1968). Initially, the Act, at a minimum, furthers an important government interest in ensuring access to reproductive health services, an interest unrelated to any incidental suppression of free expression. See Dinwiddie, 76 F.3d at...