U.S. v. Soderna, s. 95-1309

Decision Date30 April 1996
Docket NumberNos. 95-1309,95-1488 and 95-1494,95-1333,95-1430,s. 95-1309
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James D. SODERNA, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Appeals from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 86--J.P. Stadtmueller, Chief Judge.

Matthew L. Jacobs, Office of the U.S. Attorney, Milwaukee, WI, Jessica Dunsay Silver, Eileen Penner (argued), Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, for U.S. in Nos. 95-1309 and 95-1494.

Eugene R. Pigatti, Fiorenza & Hayes (argued), Milwaukee, WI, for James D. Soderna, Colin L. Hudson, Michael Charles Suhy, Dale R. Pultz.

Colleen K. Connell, James A. Huttenhower, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for American Civil Liberties Union of Illinois, American Civil Liberties Union Foundation, American Civil Liberties Union of Wisconsin.

Deborah A. Ellis, New York City, Priscilla Smith, Center for Reproductive Law & Policy, New York City, for American College of Obstetricians and Gynecologists, Feminist Majority Foundation, Nat. Abortion Federation, Nat. Abortion and Reproductive Rights Action League, Nat. Center for the Pro Choice Majority, Nat. Organization for Women, Inc., Nat. Women's Law Center, Wisconsin Women's Network, Women's Law Project, Women's Legal Defense Fund.

Matthew L. Jacobs, Office of the U.S. Attorney, Milwaukee, WI, Jessica Dunsay Silver, Eileen Penner (argued), Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, Kevin A. Forder, U.S. Dept. of Justice, Civil Rights Div., Criminal Section, Washington, DC, for U.S. in Nos. 95-1333, 95-1430 and 95-1488.

Michael Charles Suhy, Canton, MI, pro se.

Rene L. Wright (argued), Soldotna, AK, for Marilyn R. Hatch.

Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges.

POSNER, Chief Judge.

The defendants appeal from their convictions for violating the Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248, raising a variety of constitutional questions. The Act, which already has survived similar constitutional challenges in three other circuits, United States v. Dinwiddie, 76 F.3d 913 (8th Cir.1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.1995), was passed in the wake of continuing violence against, and other forcible interference with, abortion clinics, their staffs, and their clientele by radical elements of the anti-abortion movement. Murder, arson, kidnappings, bombings and bomb threats, assaults, death threats, trespasses, vandalism, gas attacks, military-style assaults, and blockades of entrances to clinics--a concerted nationwide wave of violence, intimidation, and obstruction that had overwhelmed the local authorities in some areas and that local authorities in other areas were unwilling to take action against--impelled the passage of the Act with strong bipartisan support. See, e.g., S.Rep. No. 117, 103d Cong., 1st Sess. (1993). Although as its title implies the Act is concerned primarily with the protection of abortion clinics, the drafters cast the net of liability wider. The Act forbids the use of force or threats of force or physical obstruction deliberately to injure, intimidate, or interfere with people seeking to obtain or to provide any reproductive medical or other health services, not just abortion, and also people seeking to exercise their religious rights in a church or other house of worship. 18 U.S.C. § 248(a). Substantial criminal as well as civil penalties are authorized for violations of the Act; but where the violation "involv[es] exclusively a nonviolent physical obstruction, the fine shall be not more than $10,000 and the length of imprisonment shall be not more than six months, or both, for the first offense." § 248(b). The statutory term "physical obstruction" is defined as "rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous." § 248(e)(4).

Early one morning in 1994, the six defendants in our case (one of whom has abandoned his appeal) blockaded the two entrances to an abortion clinic in Milwaukee. Four of the defendants blocked one entrance with a combination of a disabled automobile, a large drum filled with concrete and steel, and their bodies. The automobile was placed on the sidewalk directly in front of the recessed alcove of the entrance; the drum, two of the defendants, and a child occupied the alcove itself. Two other defendants sat on the ground with their bodies extending upright into the car through holes cut in the car's floor, their bodies being attached to the car by handcuffs, welding, and other means. The doors of the car had been welded shut and the car was leaking gasoline. The remaining two defendants were similarly fastened to a station wagon that was blocking the other entrance to the clinic. It took the fire department several hours to take the cars apart, extricate the defendants from the cars without injuring the defendants, and clear the entrances. The defendants offered no resistance; there was no violence; there were no threats of violence, or even displays of anger, on the part of the defendants or their supporters, who were picketing in the vicinity. (All these things are apparent from the videotapes of the incident, which are a part of the record.) But during much of the period in which the fire department was working to clear the entrances, the members of the clinic's staff could not enter the clinic and patients with appointments to have abortions or other procedures or consultations could not be served.

The defendants, all of whom had been arrested for similar conduct in other states, were convicted after a bench trial (their demand for trial by jury having been refused) of physical obstruction of the staff and clientele of the clinic. As first offenders under the Freedom of Access to Clinic Entrances Act convicted only of nonviolent obstruction, the defendants received prison sentences ranging from 30 days to 6 months and fines ranging from $500 to $3,500.

The defendants argue that the Act exceeds the Constitution's grant of authority to Congress to regulate interstate commerce. We rejected the argument in United States v. Wilson, 73 F.3d 675 (7th Cir.1995). A number of abortion clinics draw both staff and patients from across state lines (the clinic doctor in this case lives in Illinois, though the clinic is in Wisconsin) and purchase many of their medical and other supplies in interstate commerce, S.Rep. No. 117, supra, at 31; and the anti-abortion movement, through tactics such as those prohibited by the Act, has succeeded in curtailing the number and activities of abortion clinics. So this is a statute that really does seek to remove a significant obstruction, in rather a literal sense, to the free movement of persons and goods across state lines. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). The boycott of a single ophthalmological surgeon was held in Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329-30, 111 S.Ct. 1842, 1846-47, 114 L.Ed.2d 366 (1991), to be within the power of Congress to prevent because of the potential impact on the market for ophthalmological services in Los Angeles. The Court emphasized that the test was not the effect of the particular conduct alleged, but that effect cumulated over all the conduct subject to the statute. Id. at 331-32, 111 S.Ct. at 1847-48; see also Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 781 (7th Cir.1994). The market in reproductive health services is as large nationwide as the Los Angeles market in ophthalmological services; is as much or more an interstate market because of interstate movement of patients, staff, and supplies; and is as likely to be disrupted by the kind of activity in which the defendants in this case engaged as the Los Angeles market in ophthalmological services was likely to be disrupted by the antitrust violations with which the defendant hospital chain was charged.

The fact that the motive for the Freedom of Access to Clinic Entrances Act was not to increase the gross national product by removing a barrier to free trade, but rather to protect personal safety and property rights, is irrelevant. Heart of Atlanta Motel, Inc. v. United States, supra, 379 U.S. at 256-57, 85 S.Ct. at 356-58. Congress can regulate interstate commerce for any lawful motive. See, e.g., Champion v. Ames, 188 U.S. 321, 356-63, 23 S.Ct. 321, 327-30, 47 L.Ed. 492 (1903) (interstate transportation of lottery tickets); Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1300-03 (3d Cir.1996) (same); Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913) (interstate transportation of prostitutes); Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699 (1925) (interstate transportation of stolen cars).

But the defendants also argue that the Act violates the First Amendment. They point out that they blockaded the clinic in order to express their opposition (the sincerity of which is not in question) to abortion, that they did not injure or threaten to injure anybody, and that the First Amendment protects nonverbal as well as verbal expressive activity--protects, for example, the burning of the American flag. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990). They do not question the right of government to prevent physical obstruction of access to buildings as well as to prevent violence. They argue rather that the...

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