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Archive-name: law/clinic-access See reader questions & answers on this topic! - Help others by sharing your knowledge
1. What is the Freedom of Access to Clinic Entrances Act (FACE)?
2. When was FACE enacted?
3. What kinds of activity does the statute prohibit?
4. What are the penalties for violating the law?
5. Doesn't FACE violate the First Amendment?
6. Isn't FACE so vague that it violates due process?
7. Isn't it illegal to single out one kind of business for protection?
8. Have the courts ruled on FACE's constitutionality?
Appendix A1. Complete text of the original Act
Appendix A2. Technical amendments of 9/94
Appendix B. Complete text of the U.S. District Court decision in
_Council for Life Coalition v. Reno_, No. 94-0843-IEG (CM)
(S.D. Cal. July 6, 1994)
The FACE FAQ is posted around the 10th day of each month. Comments or
suggestions are welcome, and should be sent to eck@panix.com. A current
version of the FAQ may always be obtained from <ftp://rtfm.mit.edu/pub/
usenet/news.answers/law/clinic-access>. If you do not have ftp access,
send a mail message to mail-server@rtfm.mit.edu with the line
send usenet/news.answers/law/clinic-access
in the body of the message.
Copyright 1994, 1995 by Mark Eckenwiler, except as to Appendices A1,
A2, and B (no claim to original U.S. government works). Permission is
granted to redistribute this article in its entirety for noncommercial
use provided that this copyright notice is not removed or altered. No
portion of this work may be sold, either by itself or as part of a
larger work, without the express written permission of the author;
this restriction covers all publication media, including (but not
limited to) CD-ROM.
The author is an attorney admitted to practice in the State of
New York and the Commonwealth of Massachusetts. Against his better
judgment, he continues to live and work in New York City.
This FAQ is provided for informational purposes only. The author has
neither formed an attorney-client relationship with nor offered legal
advice to the reader. For legal advice, consult individually with an
attorney admitted to practice in your state.
On the format of this FAQ:
Topic entries in the outline are flagged with "**" at the left
margin; to page through the topics one by one, search repeatedly for
"**".
---------
** 1. What is the Freedom of Access to Clinic Entrances Act (FACE)?
The Freedom of Access to Clinic Entrances Act -- often abbreviated as
FACE or FACEA -- is a United States law protecting reproductive health
service facilities and their staff and patients from violent threats,
assault, vandalism, and blockade. Despite its name, FACE also provides
the same protection to churches and other places of worship, and to their
congregants as well.
** 2. When was FACE enacted?
After a House-Senate conference committee resolved the differences
between the preliminary versions of FACE passed in the two chambers, the
House approved FACE on May 5, 1994 (Cong. Rec. H3116-3135). By a vote
of 69-30, the Senate passed the measure one week later (5/12/94 Cong.
Rec. S5595-5606). President Clinton signed the bill into law on May 26,
1994 (P.L. 103-259, 108 Stat. 694), and it took effect immediately.
The 1994 federal crime bill (P.L. 103-322, enacted 9/13/94) made minor
technical changes to FACE. See Appendix A2.
** 3. What kinds of activity does the statute prohibit?
FACE makes it illegal to use force, the threat of force, or "physical
obstruction" intentionally to
a) "injure"
b) "intimidate"
c) "interfere with," or
d) attempt to injure/intimidate/interfere with
someone because that person is engaged in "obtaining or providing
reproductive health services," as those terms are defined in the statute
(see below).
The same prohibition applies to these same acts committed against someone
"lawfully exercising or seeking to exercise the First Amendment right of
religious freedom at a place of religious worship."
Finally, the law punishes anyone who intentionally damages or destroys a
facility because it provides reproductive health services, or who
"intentionally damages or destroys the property of a place of
religious worship."
To clarify the meaning of the law and protect against a challenge that
the law is unconstitutionally vague, Congress included explicit
definitions for several of the key terms used above:
"The term 'interfere with' means to restrict a person's
freedom of movement."
"The term 'intimidate' means to place a person in reasonable
apprehension of bodily harm to him- or herself or to another."
"The term 'physical obstruction' means 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."
"The term '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 full text of the Act, which created a new statute codified at 18
U.S.C. sec. 248, is reproduced in Appendix A1 below. For information on
how to locate and research federal law, see the Legal Research FAQ,
posted monthly in news.answers, misc.legal, and other relevant
newsgroups.]
Note that the definition of "reproductive health services" covers
numerous facilities besides abortion clinics. Specifically, the law's
coverage of counselling/referral services "relating to pregnancy" makes
clear that FACE also protects pro-life counselling centers from attack.
Note also that FACE includes a "parental exemption" for activity
directed solely at a minor by a parent or guardian. For example, FACE
does not bar a parent from interfering with (or obstructing) a child's
efforts to obtain an abortion, to obtain counselling concerning
contraceptives, or to attend a particular place of worship. This
exemption does not apply to conduct directed at anyone other than the
minor (and therefore does not exempt threats directed at a clinic worker
providing counselling to the minor); likewise, it does not immunize a
parent/guardian from state laws that may limit such conduct.
** 4. What are the penalties for violating the law?
FACE provides for both civil remedies and criminal penalties.
The criminal penalties vary according to the severity of the offense and
the defendant's prior record of FACE violations. Generally, a first-
time offender cannot be sentenced to more than 1 year in prison and a
$100,000 fine. For a second or subsequent violation after a prior FACE
conviction, a defendant may be imprisoned for no more than 3 years and
fined $250,000. _See_ 18 U.S.C. secs. 3559 & 3571 (setting forth
applicable fines for different categories of federal offenses).
However, more lenient limits apply in cases of exclusively nonviolent
physical obstruction. A first-time "blockader" faces no more than 6
months and a $10,000 fine; for subsequent violations, the maximum penalty
is 18 months and $25,000.
On the other hand, if the offense results in bodily injury, the maximum
sentence increases to 10 years, regardless of whether it is a first
offense. If death results from the offense, the maximum sentence is life
imprisonment.
Note that all of the above figures represent *maximum* sentences. (FACE
imposes no mandatory minimum sentences.) Offenders are sentenced
according to the separate United States Sentencing Guidelines, which
require a sentencing calculation based on the severity of the offense and
the defendant's prior convictions (whether for FACE violations or for
other crimes). Except for career criminals with lengthy records, the
Guidelines seldom impose a sentence near the statutory maximum. A first-
time nonviolent FACE offender with little or no criminal past would
normally be eligible for home detention, "supervised release"
(probation), or other alternatives to full incarceration.
Civil remedies:
A person injured by a FACE violation may bring a civil suit against the
offender. The statute allows a private plaintiff to obtain temporary,
preliminary, or permanent injunctive relief, and compensatory and
punitive damages, and fees for attorneys. In lieu of proving actual
compensatory damages, a plaintiff may elect to recover $5,000 for each
violation proven.
The U.S. Attorney General (or any state attorney general) may also bring
suit in federal court on behalf of third parties injured by FACE
violations. In such actions, the court may award the injured parties the
types of remedy listed above; moreover, the court may impose civil fines
on defendants according to the following schedule:
- first offense, nonviolent physical obstruction: $10,000
- other first offenses: $15,000
- subsequent offenses for nonviolent physical obstruction: $15,000
- other subsequent offenses: $25,000
Finally, note that FACE does not limit the availability of civil
remedies or criminal penalties allowed under state law for the same
conduct.
** 5. Doesn't FACE violate the First Amendment?
No. FACE does not infringe the free speech rights of anti-abortion
protesters. The law covers only unprotected conduct -- assault,
trespass, and vandalism -- that is already the subject of criminal
penalties in most states. Clinic protesters remain free to pray, sing
hymns, carry signs, and distribute pro-life literature outside clinics.
Note also that FACE does not discriminate on the basis of viewpoint.
The law provides the same protection to pro-life counselling centers as
to abortion clinics. Likewise, it applies to *anyone* who commits the
prohibited acts, regardless of the actor's motives; a disgruntled ex-
employee who firebombs a clinic or assaults clinic staff in revenge is
chargeable under FACE.
For information on relevant court rulings, see section 8 and Appendix B
below.
** 6. Isn't FACE so vague that it violates due process?
No. Under the Supreme Court's "vagueness" doctrine, a criminal law does
not violate the notice requirement of the Constitution's Due Process
guarantees if a person of ordinary intelligence can determine whether or
not his conduct violates the statute. _Papachristou v. City of
Jacksonville_, 405 U.S. 156, 162 (1972).
The text of FACE satisfies this standard; it makes clear the meaning of
such terms as "physical obstruction" and "intimidate" by providing
specific definitions.
For information on relevant court rulings, see section 8 and Appendix B
below.
** 7. Isn't it illegal to single out one kind of business for
protection?
No. Congress (and state legislatures as well) have the power to address
specific problems with narrowly tailored legislation. This includes the
power to regulate (or offer protection to) an individual class of
businesses.
Thus, federal law explicitly makes it a felony to rob a bank or S&L (18
U.S.C. sec. 2113), but imposes no corresponding penalty for robbing a
convenience store or racetrack. Likewise, a 1992 federal law passed in
response to animal-rights vandalism makes it a felony to damage the
property of an "animal enterprise" (i.e., research laboratory, livestock
operation, zoo, aquarium, circus, or rodeo). _See_ 18 U.S.C. sec. 43.
** 8. Have the courts ruled on FACE's constitutionality?
As of mid-April 1995, eight different federal courts have ruled in
response to broad-based constitutional challenges to FACE invoking (among
other things) the First and Fifth Amendments. Seven courts -- six
district courts and one circuit court (the Fourth Circuit) -- have
rejected the challenges in their entirety and held that FACE is
constitutional; a lone district court in Wisconsin held unconstitutional
the Act's prohibition on nonviolent physical obstruction (not on First
Amendment grounds, but on Congress's purported lack of authority to enact
the legislation).
Following is a list of the decisions to date; other cases are pending in
various federal courts across the U.S.
Upholding the statute:
======================
_American Life League v. Reno_, No. 94-1869, United States Court of
Appeals, Fourth Circuit, Feb. 13, 1995. (Judges Michael, Hall, &
Chapman.) Reported at 47 F.3d 642 (1995).
# _United States v. Brock_, No. 94-CR-86 (JPS), United States District
Court, Eastern District of Wisconsin, September 23, 1994. (District
Judge Stadtmueller, appointed in 1987 by President Reagan.)
- _Reily v. Reno_, No. CIV-94-1058-PHX-RGS, United States District
Court, District of Arizona, August 12, 1994. (District Judge
Strand, appointed in 1985 by President Reagan.)
_Cook v. Reno_, No. Civ. A. 94-0980, United States District Court,
Western District of Louisiana, August 5, 1994. (District Judge
Little, appointed in 1984 by President Reagan.)
+ _Cheffer v. Reno_, No. 94-0611-CIV-ORL-18, United States District
Court, Middle District of Florida, July 26, 1994. (District Judge
Sharp, appointed in 1983 by President Reagan.)
_Council for Life Coalition v. Reno_, No. 94-0843-IEG (CM), United
States District Court, Southern District of California, July 6, 1994
(reported at 856 F. Supp. 1422). (District Judge Gonzalez,
appointed in 1992 by President Bush.) [attached as Appendix B below]
! _American Life League v. United States_, No. CIV. A. 94-700-A, United
States District Court, Eastern District of Virginia, June 16, 1994
(reported at 855 F. Supp. 137). (District Judge Brinkema, appointed
in 1993 by President Clinton; formerly a U.S. Magistrate Judge
appointed under President Reagan, 1985-1993.)
Invalidating the statute in part:
=================================
# _United States v. Wilson_, No. 94-CR-140, United States District Court,
Eastern District of Wisconsin, March 16, 1995. (District Judge Randa.)
+ Indicates that appeal of this decision has been filed
- Indicates that appeal has lapsed
! Indicates decision affirmed on appeal
# Indicates conflict with another decision in the same court
Despite what you may have heard, the Supreme Court has not yet ruled
on FACE's constitutionality. In the _Madsen_ case handed down in June
1994 -- a case involving various "buffer zones" imposed at a Florida
abortion clinic -- the Supreme Court considered only the
constitutionality of a special injunction (i.e., court order) requiring
protesters to refrain from certain activities within a 300-foot perimeter
(and to remain entirely outside a 36-foot zone around the clinic). That
injunction was not issued under FACE. _Madsen v. Women's Health Ctr._,
114 S. Ct. 2516 (June 30, 1994).
In _Madsen_, the Supreme Court upheld (by a 6-3 vote) the 36- foot
exclusion zone, which had been imposed by a lower court only after a
narrower injunction was repeatedly violated by protesters. The Court
also upheld an "excessive noise" prohibition. At the same time,
however, the Court struck down a 300-foot zone in which protesters were
barred from approaching staff or patients without their consent; a ban
on signs or images visible from the clinic was also invalidated. Chief
Justice Rehnquist wrote for the majority, joined by Justices Blackmun,
O'Connor, Stevens, Souter, and Ginsburg; Justices Scalia, Kennedy, and
Thomas dissented.
While it does not address FACE directly, _Madsen_ reaches several legal
conclusions that strongly suggest FACE will ultimately survive review in
the Supreme Court. Most importantly, the majority opinion expressly
rejected the argument that the Florida injunction violated the First
Amendment by discriminating against a particular viewpoint. _See_ 114
S. Ct. at 2523-24.
The only negative effect _Madsen_ has on FACE is to define the limits of
injunctions that judges may constitutionally impose when they grant
relief to civil plaintiffs under FACE (or any other statute authorizing
injunctive relief). While FACE itself does not automatically create
buffer zones around clinics -- contrary to the false claims made by some
Usenetters -- its provisions for granting injunctive relief undoubtedly
permit judges to order such exclusion zones under appropriate
circumstances.
To obtain a copy of the _Madsen_ decision from Cornell's mail server,
send email to liideliver@fatty.law.cornell.edu with the following line in
the body of the message:
request 93-880
** Appendix A1. Complete text of the original Act
PL 103-259, May 26, 1994, 108 Stat 694
FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994
An Act to amend title 18, United States Code, to assure freedom of
access to reproductive services.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Freedom of Access to Clinic Entrances
Act of 1994".
SEC. 2. PURPOSE.
Pursuant to the affirmative power of Congress to enact this
legislation under section 8 of article I of the Constitution, as well as
under section 5 of the fourteenth amendment to the Constitution, it is
the purpose of this Act to protect and promote the public safety and
health and activities affecting interstate commerce 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.
SEC. 3. FREEDOM OF ACCESS TO CLINIC ENTRANCES.
Chapter 13 of title 18, United States Code, is amended by adding at
the end thereof the following new section:
"sec. 248 Freedom of Access to CLINIC ENTRANCES.
"(a) PROHIBITED ACTIVITIES.--Whoever--
"(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;
"(2) 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 lawfully exercising or
seeking to exercise the First Amendment right of religious freedom at a
place of religious worship; or
"(3) intentionally damages or destroys the property of a facility, or
attempts to do so, because such facility provides reproductive health
services, or intentionally damages or destroys the property of a place
of religious worship,
shall be subject to the penalties provided in subsection (b) and the
civil remedies provided in subsection (c), except that a parent or legal
guardian of a minor shall not be subject to any penalties or civil
remedies under this section for such activities insofar as they are
directed exclusively at that minor.
"(b) PENALTIES.--Whoever violates this section shall--
"(1) in the case of a first offense, be fined in accordance with this
title, or imprisoned not more than one year, or both; and
"(2) in the case of a second or subsequent offense after a prior
conviction under this section, be fined in accordance with this title,
or imprisoned not more than 3 years, or both;
except that for an offense involving 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; and the fine shall be not more than $25,000 and the length of
imprisonment shall be not more than 18 months, or both, for a subsequent
offense; and except that if bodily injury results, the length of
imprisonment shall be not more than 10 years, and if death results, it
shall be for any term of years or for life.
"(c) CIVIL REMEDIES.--
"(1) RIGHT OF ACTION.--
"(A) IN GENERAL.--Any person aggrieved by reason of the conduct
prohibited by subsection (a) may commence a civil action for the
relief set forth in subparagraph (B), except that such an action may
be brought under subsection (a)(1) only by a person involved in
providing or seeking to provide, or obtaining or seeking to obtain,
services in a facility that provides reproductive health services, and
such an action may be brought under subsection (a)(2) only by a person
lawfully exercising or seeking to exercise the First Amendment right
of religious freedom at a place of religious worship or by the entity
that owns or operates such place of religious worship.
"(B) RELIEF.--In any action under subparagraph (A), the court may
award appropriate relief, including temporary, preliminary or
permanent injunctive relief and compensatory and punitive damages, as
well as the costs of suit and reasonable fees for attorneys and expert
witnesses. With respect to compensatory damages, the plaintiff may
elect, at any time prior to the rendering of final judgment, to
recover, in lieu of actual damages, an award of statutory damages in
the amount of $5,000 per violation.
"(2) ACTION BY ATTORNEY GENERAL OF THE UNITED STATES.--
"(A) IN GENERAL.--If the Attorney General of the United States has
reasonable cause to believe that any person or group of persons is
being, has been, or may be injured by conduct constituting a violation
of this section, the Attorney General may commence a civil action in
any appropriate United States District Court.
"(B) RELIEF.--In any action under subparagraph (A), the court may
award appropriate relief, including temporary, preliminary or
permanent injunctive relief, and compensatory damages to persons
aggrieved as described in paragraph (1)(B). The court, to vindicate
the public interest, may also assess a civil penalty against each
respondent--
"(i) in an amount not exceeding $10,000 for a nonviolent physical
obstruction and $15,000 for other first violations; and
"(ii) in an amount not exceeding $15,000 for a nonviolent physical
obstruction and $25,000 for any other subsequent violation.
"(3) ACTIONS BY STATE ATTORNEYS GENERAL.--
"(A) IN GENERAL.--If the Attorney General of a State has reasonable
cause to believe that any person or group of persons is being, has
been, or may be injured by conduct constituting a violation of this
section, such Attorney General may commence a civil action in the name
of such State, as parens patriae on behalf of natural persons residing
in such State, in any appropriate United States District Court.
"(B) RELIEF.--In any action under subparagraph (A), the court may
award appropriate relief, including temporary, preliminary or
permanent injunctive relief, compensatory damages, and civil penalties
as described in paragraph (2)(B).
"(d) RULES OF CONSTRUCTION.--Nothing 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;
"(2) to create new remedies for interference with activities protected
by the free speech or free exercise clauses of the First Amendment to
the Constitution, occurring outside a facility, regardless of the point
of view expressed, or to limit any existing legal remedies for such
interference;
"(3) to provide exclusive criminal penalties or civil remedies with
respect to the conduct prohibited by this section, or to preempt State
or local laws that may provide such penalties or remedies; or
"(4) to interfere with the enforcement of State or local laws
regulating the performance of abortions or other reproductive health
services.
"(e) DEFINITIONS.--As used in this section:
"(1) FACILITY.--The term 'facility' includes a hospital, clinic,
physician's office, or other facility that provides reproductive health
services, and includes the building or structure in which the facility
is located.
"(2) INTERFERE WITH.--The term 'interfere with' means to restrict a
person's freedom of movement.
"(3) INTIMIDATE.--The term 'intimidate' means to place a person in
reasonable apprehension of bodily harm to him- or herself or to
another.
"(4) PHYSICAL OBSTRUCTION.--The term 'physical obstruction' means
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.
"(5) REPRODUCTIVE HEALTH SERVICES.--The term '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.
"(6) STATE.--The term 'State' includes a State of the United States,
the District of Columbia, and any commonwealth, territory, or
possession of the United States.".
SEC. 4. CLERICAL AMENDMENT.
The table of sections at the beginning of chapter 13 of title 18,
United States Code, is amended by adding at the end the following new
item:
"248. Blocking access to reproductive health services.".
SEC. 5. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or circumstance
is held to be unconstitutional, the remainder of this Act, the amendments
made by this Act, and the application of the provisions of such to any
other person or circumstance shall not be affected thereby.
SEC. 6. EFFECTIVE DATE.
This Act takes effect on the date of the enactment of this Act, and
shall apply only with respect to conduct occurring on or after such date.
Approved May 26, 1994.
** Appendix A2. Technical amendments of 9/94
[From P.L. 103-322:]
Section 330023. TECHNICAL CORRECTION RELATING TO SECTION 248
OF TITLE 18, UNITED STATES CODE
(a) IN GENERAL.--Chapter 13 of title 18, United States Code, is
amended--
(1) in the chapter analysis so that the item relating to
section 248 reads as follows:
"248. Freedom of access to clinic entrances.";
(2) so that the heading of section 248 reads as follows:
"$ 248. Freedom of access to clinic entrances"; and
(3) in section 248(b) by inserting ", notwithstanding
section 3571," before "be not more than $25,000".
(b) EFFECTIVE DATE.--The amendments made by this subsection (a)
shall take effet on the date of enactment of the Freedom of
Access to Clinic Entrances Act of 1994.
[Comment:
Parts (a)(1) and (2) merely revise the headings, and do not change the
statute itself. Part (a)(3) reinforces the $25,000 limit on fines for
repeat non-violent offenses. The section referred to, section 3571(a)
of title 18, allows a maximum fine of $250,000 for certain federal
felonies; under section 3571(e), individual laws may prescribe lower
maximum penalties only if they expressly state that section 3571(a) does
not apply. The revision in (a)(3) above corrects this omission from the
original FACE legislation, and makes the change applicable
retroactively, assuring that non-violent FACE offenders will not be
fined more than $25,000 for any single offense.
-M. Eckenwiler]
** Appendix B. Complete text of the U.S. District Court decision in
_Council for Life Coalition v. Reno_, No. 94-0843-IEG
(CM) (S.D. Cal. July 6, 1994)
Council for Life Coalition, Jim Harnsberger, Kathy Harnsberger, Jim
Baxter, Sammy Wilson, Eric Camillo, and Barbara Blackledge,
Plaintiffs,
v.
Hon. Janet Reno, Attorney General of the United States of America,
Defendant.
No. 94-0843-IEG (CM).
United States District Court,
S.D. California.
July 6, 1994.
The following motions came on regularly for hearing on June 29,
1994, at 2:00 p.m., in Courtroom 11 of the above-entitled Court, the
Honorable Irma E. Gonzalez presiding: 1) Defendant's Motion to
Dismiss; 2) Plaintiffs' Motion for a Preliminary Injunction; 3)
Proposed Intervenors' Motion to Intervene; and 4) Proposed Amici
Curiae's Motion for Leave to file a Brief Amici Curiae in support of
defendant's motion to dismiss.
At the hearing on the foregoing motions, there being no opposition
and for good cause shown, the Court GRANTED the Proposed Intervenors'
motion to intervene as defendants in this action pursuant to Rule
24(a)(2) of the Federal Rules of Civil Procedure. The Court also
GRANTED the Proposed Amici Curiae's motion for leave to file a brief
amici curiae in support of defendant's motion to dismiss. The
following order thus addresses the defendant's motion to dismiss and
the plaintiffs' motion for a preliminary injunction.
I.
This is an action for declaratory and injunctive relief seeking to
enjoin the enforcement of The Freedom of Access to Clinic Entrances
Act of 1994, 18 U.S.C. sec. 248 ("FACE") that President Clinton signed
into law on May 26, 1994. The critical portion of FACE at issue here
provides that 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" shall be subject to certain criminal
penalties and civil remedies. (FACE, sec. 3).
FACE specifically defines several of its key terms. (Id.). The term
"interfere with" means "to restrict a person's freedom of movement"
(Id.). The term "intimidate" means "to place a person in reasonable
apprehension of bodily harm to him-or herself or to another" (Id.).
The term "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" (Id.). The term "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" (Id.).
The stated purpose of FACE is to "protect and promote the public
safety and health and activities affecting interstate commerce 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." (FACE, sec. 2). In
enacting FACE, which is enforceable criminally and civilly by the
Attorney General, and civilly by State attorneys general and
individuals who are victimized by the prohibited conduct, Congress
compiled and responded to a substantial legislative record of the use
of violence, threats of violence, mass blockades, invasions of
abortion clinics, and destruction of' medical facilities by bombings,
arson, and acid and gas attacks. See, e.g., S.Rep. No. 117, 103d
Cong., 1st Sess. 3 (1993) ("Senate Report"). Congress determined that
existing laws were inadequate to stop this violence, and that federal
legislation was necessary and appropriate.
Plaintiff Council for Life Coalition is an unincorporated California
association whose members are opposed to abortion on theological,
moral and other grounds. Individual plaintiffs Jim Harnsberger, Kathy
Harnsberger, Jim Baxter, Sammy Wilson, Eric Camillo and Barbara
Blackledge (collectively the "individual plaintiffs") are all citizens
of the United States residing in San Diego County who are opposed to
abortion on theological, moral and other grounds. The individual
plaintiffs allege that they have peaceably demonstrated, prayed,
distributed materials and "sidewalk counseled" in the proximity of
abortion clinics.
Plaintiffs seek a preliminary injunction against the enforcement of
FACE on a variety of constitutional and statutory grounds. Defendant
Janet Reno, Attorney General of the United States of America opposes
plaintiffs' application for a preliminary injunction and moves to
dismiss this action pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. In the motion to dismiss, defendant
argues that this action is non-justiciable and that, in any case,
plaintiffs have failed to state a claim upon which relief can be
granted.
At the hearing on these motions, defendant conceded that, in light
of the first amended complaint and accompanying supplemental
declarations of the individual plaintiffs filed after the motion to
dismiss, [1] there no longer is an issue regarding the
justiciability of this action. Accordingly, the Court addresses
defendant's alternative argument that plaintiffs have failed to state
a claim upon which relief can be granted.
[1] In their supplemental declarations, the individual plaintiffs state
that they:
wish and intend to engage in the activities prohibited by Section 248(a)(1)
of FACE, which include, but are not limited to, shouting and/or gesturing,
and communicating (either orally and/or with signs and/or by my demeanor
and/or expression) threats of force in order to intimidate or interfere
with individuals who have or are about to obtain or provide reproductive
health services; standing and/or marching in single file on public
sidewalks that are in front of entrances to facilities that provide
reproductive health services; and demonstrating, praying, distributing
materials, carrying signs, sidewalk counseling, and exercising my rights to
freedom of speech and exercise of religion.
See, e.g., Supplemental Declaration of Jim Harnsberger Dated June 22, 1994
at P 2 (emphasis added).
In addition, according to the supplemental declaration of Sammy Wilson, the
San Diego County Sheriff's department has indicated that if he continues
with his "abortion protest activities" and if he "stood or marched on the
public sidewalk" in front of a local abortion clinic with a "sign
protesting" he would be arrested under FACE after first being warned to
cease and desist.
See Supplemental Declaration of Jim Harnsberger Dated June 22, 1994 at P 4.
II. Plaintiffs seek to enjoin the enforcement of FACE on the ground
that it abridges freedom of expression and association protected by
the first amendment, violates the establishment clause and the free
exercise clause of the first amendment, violates the Religious Freedom
Restoration Act of 1993, and that Congress had no authority to pass
FACE either pursuant to Section 5 of the fourteenth amendment or the
Commerce Clause. The Court first addresses plaintiffs' core claim
that FACE abridges freedom of expression.
A. Freedom of Expression
The fundamental flaw underlying plaintiffs, arguments that FACE
violates the free exercise clause of the first amendment is their
assertion that FACE applies to protected expression. In fact, by its
terms, FACE proscribes only conduct--"force," -the "threat of force,"
and "physical obstruction," which is used intentionally to injure,
intimidate, or interfere with persons because they seek to obtain or
provide reproductive health services. The Court rejects as
insupportable any suggestion that shootings, arson, death threats,
vandalism, or other violent and destructive acts addressed by FACE are
protected by the first amendment merely because those engaged in such
conduct " 'intend[ ] thereby 'to express an idea.' " Wisconsin
v. Mitchell, 113 S.Ct. 2194, 21913 (1993) (quoting United States
v. O'Brien, 391 U.S. 367, 376 (1968.)). "[V]iolence or other types of
potentially expressive activities that produce special harms distinct
from their communicative impact ... are entitled to no constitutional
protection." Roberts v. United States Jaycees, 468 U.S. 609, 628
(1984); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916
(1982). Thus, like the statute that was upheld on first amendment
grounds in Wisconsin v. Mitchell, FACE is aimed at conduct, not
expression.
Plaintiffs attempt to argue that FACE penalizes "anyone who
'injures' anyone involved in the abortion process," and that because
their demonstrations, prayers, distribution of materials, and
sidewalk-counselling may inflict emotional. and psychological
"injuries," these activities are proscribed by FACE. (Memorandum of
Points and Authorities in Support of Plaintiff's Application for
Preliminary Injunction at pp. 8-11) ("P. Brief"). However,
plaintiffs misread the statute. FACE does not apply to "anyone who
'injures' anyone involved in the abortion process." Instead, FACE
criminalizes the use of "force" the "threat of force" and "physical
obstruction" which are acts that are outside the scope of the first
amendment's protections. Thus, those peaceable activities engaged in
by plaintiffs that are not accompanied by the use of force, the threat
of force, or physical obstruction, are not proscribed by FACE.
Plaintiffs further contend that FACE imposes content-based and
viewpoint-based restrictions on protected expression because it
applies only to conduct intended to injure, intimidate, or interfere
with a person who seeks to obtain or provide reproductive health
services, and not to conduct intended to injure, intimidate, or
interfere with a person for any other reason. They argue that FACE
is unconstitutional because it singles out for special punishment acts
committed in the course of anti-abortion protests.
However, nothing in the plain words of the statute supports
plaintiffs' arguments here. FACE applies to "[w]hoever" engages in
the prohibited conduct, with the requisite intent to injure,
intimidate or interfere with "any person" who is entering a facility
to obtain reproductive health services or providing such services.
Moreover, the broad statutory definition of "reproductive health
services" to include "counselling or referral services relating to the
human reproductive system" encompasses more than just abortion
clinics. Thus, although the statute is subject-specific, it is
viewpoint neutral.
The fact that FACE singles out for punishment violence at
reproductive health facilities or against those who provide and obtain
abortion services does not render the statute discriminatory on the
basis of content. The key inquiry in determining whether a statute is
content-neutral is "whether the government has adopted a regulation of
speech 'without reference to the content of the regulated speech.' "
Madsen v. Women's Health Center, Inc., 94 Daily Journal D.A.R. 9272,
9276 (U.S. Sup.Ct. June 30, 1994) (quoting Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989)). In making this determination, the
threshold consideration is the government's purpose in enacting the
legislation. Id.
Here, it is evident from the legislative record that the decision of
Congress to prohibit violent conduct at abortion facilities or against
those who provide and seek abortion services reflects Congress'
concern over the severe impact of that violence, rather than a desire
to curb any anti-abortion message some people wish to convey. Thus,
as the Supreme Court held in Wisconsin v. Mitchell, the State's
desire to redress particular harms "provides an adequate explanation
for the particular statute over and above mere disagreement with the
offenders' beliefs or biases." 1l3 S.Ct. at 2201.
In addition, FACE's intent element does not restrictany type of
message and, like the motive element under the Wisconsin statute
upheld by the U.S. Supreme Court in Wisconsin v. Mitchell, it "plays
the same role under (FACE) as it does under federal and state
antidiscrimination laws, which [the Supreme Court has] previously
upheld against constitutional challenge." 113 S.Ct. at 2200. E.g.,
Roberts v. United States Jaycees, 468 U.S. at 628.
Much of plaintiffs' first amendment challenge to FACE is directed
toward FACE's prohibition against the "threat of force" to intimidate
or interfere with access to reproductive health services. How,ever,
in this regard, the Court notes that FACE is similar to numerous
criminal statutes that prohibit intimidating or interfering with a
person engaged in an activity of some federal interest. E.g., 18
U.S.C. 5 112(b) (making it unlawful to "intimidate[ ], coerce[ ],
threaten[ ], or harass[ ] a foreign official ... in the performance of
his duties"); 18 U.S.C. sec. 245(b) (providing that one who "by force or
threat of force willfully injuries, intimidates or interferes with, or
attempts to injure, intimidate or interfere with--any person because
he is or has been, or in order to intimidate such person or any other
person or any class of persons from [exercising certain designated
rights]" violates the law); 18 U.S.C. sec. 372 (making it unlawful to
"conspire to prevent, by force, intimidation, or threat, any person
from accepting or holding any office"); 18 U.S.C. 871(a)
(criminalizing threats of violence made against the President or Vice
President); 26 U.S.C. sec. 7212(a) (prohibiting attempts to interfere
with internal revenue laws by one who "corruptly or by force or
threats of force (including any threatening letter or communication)"
endeavors to, intimidate or impede any officer or employee of the
United States, acting in an official capacity).
Despite the ancillary impact that these statutes may have on a
defendant's speech or expressive conduct, courts have consistently
upheld such statutes against first amendment challenge. E.g., Watts
v, United States, 394 U.S. 705, 707-08 (1969) (finding 18
U.S.C. 871(a) constitutional on its face and distinguishing "a threat
... from what is constitutionally protected speech").
As the Supreme Court held in R.A.V. v. St. Paul, 112 S.Ct. 2538
(1992), such laws do not violate the first amendment, even though a
defendant may be expressing a message while engaged in the proscribed
conduct, because the "government [has] not target[ed] conduct on the
basis of its expressive content." at 2546-47. Persons who interfere
with access to reproductive health services "are not shielded from
regulation merely because they express a[n] ... idea or philosophy."
at 2547. Similarly, as the Ninth Circuit observed in United States
v. Gilbert, 813 P.2d 1523 (9th Cir.), cert. denied, 484 U.S. 860
(1987):
If conduct contains both speech and non-speech elements, and if
Congress has the authority to regulate the non-speech conduct,
incidental restrictions on freedom of speech are not constitutionally
invalid.
813 F.2d at 1529.
Plaintiffs rely heavily on R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992)
which invalidated a city ordinance that explicitly barred any
"symbol," "appellation," or "graffiti," that expressed hostility based
on race, color, creed, or gender. However, as the U.S. Supreme Court
observed in Wisconsin, there is a distinction between invalid laws
explicitly directed at protected expression, such as the city
ordinance reviewed in R.A.V., and valid laws aimed at unprotected
conduct as is the case here. Thus, the Court held, "whereas the
ordinance struck down in R.A.V. was explicitly directed at expression
(i.e., 'speech' or 'messages') [the Wisconsin statute] is aimed at
conduct unprotected by the First Amendment." 113 S.Ct. at 2201
(citations omitted).
Plaintiffs further argue that FACE is overbroad because it reaches
peaceable and constitutionally-protected activities in which they
engage to dissuade women from having abortions. Plaintiffs contend
that such activities conceivably might cause psychological injury to
these women, and therefore be proscribed under FACE. Plaintiffs
further allege that FACE is unconstitutionally "vague" and fails to
give them fair notice of whether it prohibits the conduct they
contemplate.
In a facial challenge such as here, a law is deemed "overbroad" only
where it reaches, a " 'substantial amount of constitutionally
protected conduct.' " Houston v. Hill, 482 U.S. 451, 458 (1987)
(quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494 (1982)). This requires the court to find either that "
'every, application of the statute create[s] an impermissible risk of
suppression of ideas' " or " 'a realistic danger that the statute
itself will significantly compromise recognized First Amendment
protections of parties not before the court.' " New York State Club
Association v. New York, 487 U.S. 1, 11 (1988) (quoting City Council
of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 801
(1984)). Plaintiffs thus must demonstrate from the text of FACE and
from actual fact that a substantial number of instances exist in which
FACE cannot be applied constitutionally. Id., 487 U.S. at 14. Absent
such a showing, whatever overbreadth may exist can be cured through
case-by-case analysis of the fact situations to which FACE's
prohibitions may not be applied. Id.
Plaintiffs contend that a "plausible reading" of several FACE
provisions "is that they may be violated by the very things pro-life
protesters and counsellors try to do every day on the streets and
sidewalks outside clinics," and that these provisions have an
"impermissible, chilling effect" upon the exercise of first amendment
rights. (P. Brief at pp. 19-20).
Here, the Court concludes that plaintiffs have failed to carry their
burden of demonstrating that FACE reaches a substantial amount of
protected conduct. FACE does not apply to a substantial amount of
protected conduct in that by its terms, it is directed at unprotected
conduct, and not speech, and plaintiffs have failed to cite sufficient
factual scenarios which convince the Court that FACE could potentially
reach protected conduct. Where, as here, "conduct and not merely
speech is involved ... the overbreadth ... must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
E.g., Cameron v. Johnson, 390 U.S. 611, 617 (1968) (rejecting similar
overbreadth challenge to statute that like FACE, prohibits obstruction
of access to specified facilities).
The Court also finds that FACE is not unconstitutionally vague. In
order to be unconstitutionally vague, the statute must be
"impermissibly vague in all of its applications." Hoffman Estates
v. Flipside, Hoffman Estates, 455 U.S. at. 499. A statute is
unconstitutionally vague only if people " 'of common intelligence must
necessarily guess at its meaning.' " Hynes v. Oradell, 425 U.S. 610,
620 (1976) (quoting Connally v. General Construction Co., 269
U.S. 385, 391 (1926)).
Here, not only does FACE include specific definitions for such key
terms as "intimidate," "interfere," and "physical obstruction," most
of the operative words come from other statutes which the U.S. Supreme
Court and other courts have construed and found not unconstitutionally
vague. Thus, for example, in Cameron v. Johnson, the Court held that
a state statute prohibiting "picketing or mass demonstrations in such
a manner as to obstruct or unreasonably interfere with free ingress or
egress" was not unconstitutionally vague. 390 U.S. at 612 n. 1, 616;
see also Grayned v. Rockford, 408 U.S. 104 (1972).
Similarly, in United States v. Gilbert, the Ninth Circuit held that
the Federal Fair Housing Act's prohibition against the use of "force
or threat of force" to injure, intimidate or interfere with anyone who
is lawfully aiding or encouraging others in "occupying ... any
dwelling" was not unconstitutionally vague. 813 F,.2d at 1530.
Indeed, the Ninth Circuit observed even more broadly that "legislation
which proscribes the use of force or the threat of force should not be
found to be void for vagueness." Id.
Finally, plaintiffs contend that FACE's provision allowing the
recovery in a civil action against violators of $5,000 in statutory
damages is unconstitutional under NAACP v. Claiborne Hardware Co., 458
U.S. 886 (1982), because the damages may be assessed against protected
conduct. However, not only has the Court determined that FACE does
not apply to protected conduct, plaintiffs' argument here also fails
because it is wholly speculative and is more properly raised in the
context of an actual dispute in which a plaintiff attempts to invoke
this provision in connection with particular conduct. [2]
[2]. The Court also rejects plaintiffs' claim that FACE impermissibly
infringes their freedom of association guaranteed by the first amendment.
FACE does not prohibit plaintiffs from associating with others or from
joining with them to express a particular viewpoint. As the U.S. Supreme
Court recently observed, "the First Amendment does not extend to joining
with others for the purpose of depriving third parties of their lawful
rights." Madsen, 94 Daily Journal D.A.R. at 9280.
B. Free Exercise Clause and Religious Freedom Restoration Act
Plaintiffs argue that FACE violates their rights under the free
exercise clause of the first amendment and the Religious Freedom
Restoration Act, 42 U.S.C. sec. 2000bb, et seq.
A law that is neutral toward religion and is generally applicable
does not offend the free exercise clause, even if it has an incidental
effect on religious practice. See Church of the Lukumi Babalu Aye,
Inc. v. Hialeah, 113 S.Ct. 2217, 2226 (1993). The Court finds that
plaintiffs' strained attempts to cast FACE as a law that is not
neutral towards religion are unavailing. Not only does the text of
FACE itself refute any such suggestion, there is nothing in FACE's
legislative history that supports the conclusion that Congress enacted
the statute for an impermissible religious purpose. The statute
prohibits certain conduct regardless of whether religious conviction
motivated the actor, and it neither favors certain religions over
others nor favors no religion over religion.
The Religious Freedom Restoration Act provides in pertinent part:
Government may substanially burden a person's exercise of religion
only if it demonstrates that application of the burden to the person
1) is in furtherance of a compelling governmental interest and 2) is
the least restrictive means of furthering that compelling governmental
interest.
As a threshold matter as discussed above, plaintiffs have failed to
demonstrate that FACE substantially burdens any person's exercise of
religion. plaintiffs do not seriously argue that their exercise of
religion entails the use of force or threats of force. Instead, they
are primarily concerned that they will be prevented from engaging in
peaceful religious activities, such as prayer and attempts to dissuade
individuals, on religious grounds, from seeking abortions. It appears
that plaintiffs believe that these activities will be substantially
burdened by the prohibition of physical obstruction. However,
plaintiffs do not contend that it is part of their exercise of
religion to make ingress to or egress from a facility impossible,
unreasonably difficult, or hazardous, which is what is prohibited by
the statute.
Even assuming that FACE substantially burdened plaintiffs' exercise
of religion, application of that burden is in furtherance of a
compelling governmental interest and is the least restrictive means of
furthering that compelling interest. Congress unquestionably has a
compelling interest in prohibiting the use of force and threats of
force and physical obstruction of facilities providing reproductive
health services. As plaintiffs admit, such conduct is already
unlawful under state and local laws. in addition, the evidence before
Congress established that such obstruction has seriously impeded the
access of women to important health services, including the
constitutionally protected right to have an abortion. Congress found
that physical obstruction hag imposed serious medical risks on women
and has an effect on interstate commerce.
Moreover, FACE is a carefully drawn statute that addresses the
precise interest that Congress identified and nothing more. it
addresses a narrow and carefully proscribed set of actions that
contribute directly to the compelling problems for which it sought to
provide a remedy. Its prohibitions are limited to the use of force,
threats of force, and physical obstruction. It requires that
violators act with an intent to injure, intimidate, or interfere with
a person. And the statute is limited to those persons who engage in
such conduct because someone sought or provided reproductive health
services. Finally, Congress provided definitions for certain key
terms that focus the statute on the specific problems that it was
addressing.
Accordingly, the Court concludes that FACT does not violate the free
exercise clause or the Religious Freedom Restoration Act. [3]
[3] Similarly, plaintiffs' challenge based on the establishment clause
also fails as a matter of law because, as discussed above, FACE clearly has
a secular purpose, and it neither fosters excessive government entanglement
with religion nor has a primary effect of advancing or inhibiting
religion. See, e.g., Harris v. McRae, 448 U.S. 297, 319-20 (1980).
C. Congressional Power to Pass FACE
Plaintiffs argue that Congress lacked power under the commerce
clause to pass FACE, and that Congress therefore enacted FACE in
violation of the tenth amendment. Plaintiffs further argue that
Congress also lacked the authority to pass FACE under sec. 5 of the
fourteenth amendment.
When considering whether a particular exercise of congressional power
is valid under the commerce clause, the Court must merely determine:
1) whether Congress had a basis for finding that the regulated
activity affects interstate commerce, and 2) whether the means it
selected to eliminate the problem are reasonable and appropriate. See
Hodel v. Virginia Surface Mining & Reclamation Association, 452
U.S. 264, 276 (1981). In considering these questions, the "court must
defer to a congressional finding that a regulated activity affects
interstate commerce, if there is any rational basis for such a
finding" and end its inquiry "once [it] determines that Congress acted
rationally in adopting a particular regulatory scheme." id.
In passing FACE, Congress collected ample evidence that the conduct
prohibited under FACE affects interstate commerce. Thus, for example,
Congress concluded that "[c]linics and other abortion service
providers clearly are involved in interstate commerce, both directly
and indirectly. They purchase medicine, medical supplies, surgical
instruments and other necessary medical products, often from other
States; they employ staff; they own and lease office space; they
generate income." Senate Report, at p. 31. Also, "many of the
patients who seek services from these facilities engage in interstate
commerce by traveling from one state to obtain services in another."
Id. Clinic employees and physicians also travel across state lines to
work. Furthermore, Congress found that the types of activities
proscribed by FACE have a negative impact on interstate commerce,
reducing the availability of abortion services and the interstate
movement of people and goods. Id. Finally, Congress found that the
problem addressed by FACE is nationwide and beyond the ability of
individual states to control. Id.
The Court further finds that the prohibitions in FACE are a
reasonable and appropriate means to address the problem of violence at
reproductive health service facilities. The Court concludes that
Congress had the power under the commerce clause to enact FACE. [4]
Having so concluded, the Court need not address plaintiffs' remaining
argument that sec. 5 of the fourteenth amendment does not give Congress
the independent authority to enact FACE.
[4] Plaintiffs cite United States v. Cortner, 834 F.Supp. 242 (M.D.
Tenn.1993) in support of their argument that Congress had no power to enact
FACE pursuant to the commerce clause. In that case, the U.S. District
Court for Middle District of Tennessee held that Congress lacked the
authority under the commerce clause to enact the Anti Car Theft Act of
1992, 18 U.S.C. sec. 2119, because there is an insufficient nexus between
"carjacking" and interstate commerce. Id. at 243-44. In contrast to the
facts of Cortner, as discussed above, there is a sufficient nexus
between the activities that are the subject of FACE and interstate commerce
to support Congressional authority to enact FACE pursuant to the commerce
clause. Moreover, even if that case were on point, it is not binding
authority here and, in any case, its reasoning has since been rejected by
at least one other court addressing precisely the same argument concerning
precisely the same federal statute. See, e.g., United States v. Payne,
841 F.Supp. 810 (S.D. Ohio 1994) (upholding Congress' power under the
commerce clause to enact the Anti Car Theft Act of 1992).
D. Conclusion
For the foregoing reasons, the Court concludes that FACE does not
infringe plaintiffs' rights under the first and fifth amendments, or
their putative statutory rights under the Religious Freedom
Restoration Act, and Congress had full authority to enact FACE under
the Commerce Clause. Because plaintiffs have failed to state a claim
upon which relief can be granted, defendant's motion to dismiss the
complaint is GRANTED and this action is DISMISSED.
Because this action is dismissed for failure to state a claim upon
which relief can be granted, plaintiffs' motion for a preliminary
injunction is DENIED AS MOOT.
IT IS SO ORDERED.
[end of FAQ]
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