US v. Lucero

• Decision Date: 25 May 1995
• Docket Number: No. 95-10036-01,95-10036-02.,95-10036-01
• Citation: 895 F. Supp. 1421
• Parties: UNITED STATES of America, Plaintiff, v. James H. LUCERO and Charles L. Lacroix, Defendants.
• Court: U.S. District Court — District of Kansas

895 F. Supp. 1421

UNITED STATES of America, Plaintiff, v. James H. LUCERO and Charles L. Lacroix, Defendants.

Nos. 95-10036-01, 95-10036-02.

United States District Court, D. Kansas.

May 25, 1995.

Craig Shultz, Shultz & Lonker, Chartered, Wichita, KS, for James H. Lucero and James H. Lucero, Wichita, KS, pro se.

Eric A. Commer, Wichita, KS, for Charles L. Lacroix and Charles L. Lacroix, Wichita, KS, pro se.

Debra L. Barnett and Annette B. Gurney, Office of United States Attorney, Wichita, KS, for the U.S.

MEMORANDUM AND ORDER

THEIS, District Judge.

Defendants are charged with interfering by physical obstruction with persons obtaining or providing reproductive health services in violation of the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248(a)(1). Specifically, the United States alleges that the defendants welded themselves into vehicles, thereby blocking the entrances to a clinic in Wichita, Kansas, where abortions are performed.

The matter is before the court on motions filed by the defendants and by the United States. Defendants move first for dismissal of the charges on the ground that the Freedom of Access to Clinic Entrances Act ("the Act") is unconstitutional. (Doc's 23, 29). Defendants also seek to present the defense of necessity/jury nullification at trial by calling witnesses to testify as to the scientific and philosophical implications of abortion. (Doc. 24). Finally, defendants present several discovery motions. (Doc.'s 15, 19, 25-28). The court held a hearing on May 15, 1995, at which several of these matters were discussed and at which the court set forth its expectations for trial procedure in this matter. As the court indicated at that hearing, the court has read the parties submissions and the relevant case law and is prepared to rule. Since the hearing, the government has filed a motion in limine (Doc. 37), and the defendants have filed a motion for a bill of particulars. (Doc. 36).

I. Motion to Dismiss

Defendants seek dismissal of the charges against them. Defendants argue that the Act is unconstitutional for several reasons. Defendants first contend, in a motion filed pro se, that the Supreme Court, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), determined that abortion is itself unconstitutional. This argument is based on a selective and mistaken reading of the Casey decision. The Supreme Court did not declare abortion unconstitutional and, in fact, reaffirmed the general right of a woman to choose to have an abortion. Id. at ___, 112 S.Ct. at 2804.

Defendants' second argument is that Congress had no power under the Commerce Clause or under section 5 of the Fourteenth Amendment to enact this legislation. Article I of the Constitution gives Congress the power to regulate commerce "among the several states." U.S. Const., Art. I, § 8, cl. 3. Under the Commerce Clause, Congress has the power to regulate not only the instrumentalities and channels of interstate commerce itself, but also intrastate activity which has a substantial effect on interstate commerce. United States v. Lopez, ___ U.S. ___, ___, 115 S.Ct. 1624, 1628, 131 L.Ed.2d 626 (1995). Legislation is valid under the Commerce Clause if Congress (1) had any rational basis to conclude that the regulated activity substantially affects interstate commerce and (2) chose a regulatory means reasonably adapted to its permissible ends. Hodel v. Virginia Surface Mining & Recl. Ass'n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981) (enunciating standard); Lopez, ___ U.S. at ___, 115 S.Ct. at 1630 (holding that proper question is whether regulated activity "substantially affects" interstate commerce).

Several district courts and the Fourth Circuit Court of appeals have addressed the constitutionality of the Access Act under the Commerce Clause, and only one district court has held the Act unconstitutional. American Life League v. Reno, 47 F.3d 642 (4th Cir.1995); Reno v. Dinwiddie, 885 F.Supp. 1286 (D.Mo.1995); Riely v. Reno, 860 F.Supp. 693 (D.Ariz.1994); Cook v. Reno, 859 F.Supp. 1008 (W.D.La.1994); Council for Life Coalition v. Reno, 856 F.Supp. 1422 (S.D.Cal.1994); (upholding statute). But see, United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995) (holding statute invalid under Commerce Clause). This court agrees with the Fourth Circuit and the majority of district courts which have addressed the issue that Congress acted within its Commerce Clause power in enacting the Access Act.

An extensive legislative record supports Congress' determination of the substantial effect on interstate commerce of violence, threats, and physical obstructions at reproductive health facilities. American Life League, 47 F.3d at 647. Such activities by opponents of abortion have been documented throughout the country and have been organized across state lines. Furthermore, Congress found that many patients travel across state lines to obtain reproductive health services and other medical services, and that physicians travel across state lines to provide such services. Reproductive health facilities buy medical and office supplies that move in interstate commerce. S.Rep. No. 117 at 3; H.R.Conf.Rep. No. 488 at 7.

One of the primary stated purposes of the regulated anti-abortion activities has been to close abortion clinics by causing physical destruction of facilities, causing or threatening physical injury to physicians, clinic workers and patients, and by physically blocking access to clinics. The regulated activities have, in fact, caused some clinics to close, at least temporarily. Many of these clinics provide medical and related services other than abortion.¹

There is no dispute that the provision of reproductive health services and other medical and related services constitutes commerce. Moreover, the court holds that Congress rationally concluded that the regulated activities substantially affect interstate commerce, due to the interstate movement of supplies, as well as interstate travel by providers and patients. In this way, the Access Act differs significantly from the Gun Free School Zones Act, which the Supreme Court recently struck down in Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626. The Gun Free School Zones Act "by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at ___, 115 S.Ct. at 1630-31. The Access Act, by contrast, regulates conduct which, by its very design, threatens a particular type of commerce—the provision of reproductive health services.²

Finally, the court agrees with the Fourth Circuit's determination that Congress chose means reasonably adapted to permissible ends. Id. at 647. The Act's prohibitions and penalties are reasonably designed to protect the free flow of goods and services in interstate commerce, as well as protect the safety of patients seeking and clinic workers providing abortions and other medical and related services and protect reproductive health care facilities from physical destruction and damage. Id.

Because the court concludes that the Access Act was properly enacted under Congress' Commerce Clause power, the court need not address the defendants' arguments relating to Congress' power under section 5 of the Fourteenth Amendment.

Next, defendants argue that the Act violates their First Amendment rights. As an initial matter, the court concludes that the Access Act is viewpoint neutral. Id. at 648-51. The Act applies equally to abortion opponents and abortion rights supporters. Id. at 649. The Access Act's motive element does not render the Act viewpoint based. Id. at 650 (citing Wisconsin v. Mitchell, ___ U.S. ___, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), in which the Supreme Court upheld state statute providing enhanced penalty for aggravated battery when victim selected because of race). Rather, the motive requirement targets the precise conduct which Congress has determined affects reproductive health services as an aspect of interstate commerce. Furthermore, the Access Act is not viewpoint based simply because one side of the abortion debate is more likely to violate the law. Id. at 651 (citing United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (upholding statutory prohibition on burning draft cards)).

Where, as here, in regulating nonspeech elements of conduct, a viewpoint-neutral statute may incidentally limit speech, the court applies intermediate scrutiny, under which the statute is constitutional "if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

The Access Act furthers important governmental interests in protecting patients, physicians and clinic staff from harm and preventing physical destruction of medical and related facilities, which, as described above, have various ties to interstate commerce. American Life League, 47 F.3d at 651. Furthermore, the government has a strong interest in protecting persons from violence when they seek to exercise their constitutional rights, including the right to terminate or continue a pregnancy, obtain contraception, and otherwise seek medical and related services. Id.

Second, the Access Act is not related to the suppression of expression. As discussed above, it is viewpoint neutral and is aimed at harmful conduct rather than expression.

Third, any incidental restriction on alleged First Amendment freedoms is no greater than necessary to meet the government's interests. Id. at 652. Threats and violence are entitled to no protection as expression. Id. The Act also prohibits some nonviolent protest, but only that by which the actor intends to physically block access to a clinic. This...