No. 94-1867 In The Supreme Court of The United States OCTOBER TERM, 1995 AMERICAN LIFE LEAGUE, INC., ET AL., PETITIONERS v. JANET RENO, ATTORNEY GENERAL ON PETITION OF A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General MARK B. STERN Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether Congress lacked authority under the Commerce Clause and the Fourteenth Amendment to enact the Freedom of Access to Clinic Entrances Act of 1994. 2. Whether the Freedom of Access to Clinic En- trances Act is an unconstitutional content or view- point based restriction on speech. 3. Whether the Freedom of Access to Clinic En- trances Act is unconstitutionally vague or overbroad. 4. Whether the Freedom of Access to Clinic En- trances Act infringes on rights protected by the Free Exercise Clause of the First Amendment or the Re- ligious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. (1) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 1. Statutory background . . . . 2 2. Factual background . . . . 5 Argument . . . . 8 Conclusion . . . . 21 TABLE OF AUTHORITIES Cases: Cameron v. Johnson, 390 U.S. 611 (1968) . . . . 13, 18, 19 Cheffer v. Reno, 55 F.3d 1517 (1995) . . . . 12 Church of Lukumi Babalu Aye, Inc. v. Hialeah, 113 S. Ct. 2217 (1993) . . . . 7, 19 Council for Life Coalition v. Reno, 856 F. Supp. 1422 (S.D. Cal. 1994) . . . . 14 Cox v. Louisiana, 379 U.S. 536 (1965) . . . . 13 Employment Division v. Smith, 494 U.S. 872 (1990) . . . . 20 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) . . . . 10 Katzenbach v. McClung, 379 U.S. 294 (1964 ) . . . . 10 Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516 (1994) . . . . 13, 17, 18 National Org. for Women v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va. 1989), aff'd, 914 F.2d 582 (4th Cir. 1990), rev'd in part, vacated in part sub nom. Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753 (1993) . . . . 2, 3 Perez v. United States, 402 U.S. 146 (1971) . . . . 9-10 R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992 ) . . . . 13 Riely v. Reno, 860 F. Supp. 693 (D. Ariz. 1994) . . . . 14 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991) . . . . 10 United States v. Brock, 863 F. Supp. 851 (E.D. Wis. 1994), appeals pending, Nos. 95-1308, 95- 1309, 95-1333, 95-1430, 95-1488 & 95-1494 (7th Cir.) . . . . 14 United States v. Lopez, 115 S. Ct. 1624 (1995) . . . . 8, 9, 11 United States v. O'Brien, 391 U.S. 367 (1968) . . . . 7, 14 United States v. Robertson, 115 S. Ct. 1732 (1995) . . . . 9 Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . 17 Wickard v. Filburn, 317 U.S. 111 (1942) . . . . 9 Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993) . . . . 13, 16 Woodall v. Reno, 47 F.3d 656 (4th Cir. 1995) . . . . 6, 12 Constitution and statutes: U.S. Const.: Art. I, 8, Cl. 3 (Commerce Clause) . . . . 8, 12 Amend. I . . . . 7, 12, 13, 14, 16, 18, 19 Free Exercise Clause . . . . 7, 19, 20 Free Speech Clause . . . . 7 Amend. XIV, 5 . . . . 8, 12 Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259, 108 Stat. 694 (to be codified at 18 U.S.C. 248) . . . . 2 3, 108 Stat. 694-697: 18 U.S.C. 248 . . . . 2 18 U.S.C. 248(a) . . . . 4 18 U.S.C. 248(a)(1) . . . . 9, 11 18 U.S.C. 248(a)(2) . . . . 4 18 U.S.C. 248(a)(3) . . . . 4 18 U.S.C. 248(b) . . . . 5 18 U.S.C. 248(c) . . . . 5 ---------------------------------------- Page Break ---------------------------------------- V Statutes-Continued: Page 18 U.S.C. 248 (c) (1) . . . . 5 18 U.S.C. 248(c) (2) . . . . 5 18 U.S.C. 248 (c) (3) . . . . 5 18 U.S.C. 248 (d) (1) . . . . 4 18 U.S.C. 248 (e) . . . . 11, 13 18 U.S.C. 248 (e) (2) . . . . 13 18 U.S.C. 248 (e) (3) . . . . 13 18 U.S.C. 248 (e) (4) . . . . 14, 18 18 U.S.C. 248 (e) (5) . . . . 14 Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq . . . . 6, 20 42 U. S.C. 2000bb-1 (Supp. V 1993) . . . . 20 Miscellaneous: H.R. Conf. Rep. No. 488, 103d Cong., 2d Sess, (1994) . . . . 3 H. R. Rep, No. 306, 103d Cong., 1st Sess. (1993) . . . . 9, 10 S. Rep. No. 117, 103d Cong., 1st Sess. (1993) . . . . 2, 3, 9, 10, 11 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 94-1867 AMERICAN LIFE LEAGUE, INC., ET AL., PETITIONERS v. JANET RENO, ATTORNEY GENERAL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-24a) is reported at 47 F.3d 642. The opinion of the district court (Pet. App. 25a-37a) is reported at 855 F. Supp. 137. JURISDICTION The judgment of the court of appeals was entered on February 13, 1995. The petition for a writ of certiorari was filed on May 12, 1995. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Statutory Background Congress enacted the Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259, 108 Stat. 694 (the Access Act) (to be codified at 18 U.S.C. 248) 1. in response to a nationwide campaign of violent and obstructive interference with access to reproductive health services. From 1977 through April, 1993, more than 1,000 acts of violence against providers of abortion services were reported in the United States. S. Rep. No. 117, 103d Cong., 1st Sess. 3 (1993) (S. Rep.). Those acts included at least 36 bombings, 8l arsons, 131 death threats, 84 as- saults, two kidnappings, 327 clinic invasions, 71 chemical attacks, and one murder. Id. at 3,6. This violence endangered the lives of and inflicted injuries on physicians, clinic staff and patients, caused mil- lions of dollars of property damage, and curtailed access to health care for many women, particularly poor women who live in rural areas. Id. at 5. Groups opposed to abortion also organized block- ades designed to bar access to health care clinics and to overwhelm local law enforcement. S. Rep. 7. From 1977 through April, 1993, more than 6,000 clinic blockades and related disruptions were reported in the United States. Ibid.; see also National Org. for Women v. Operation Rescue, 726 F. Supp. 1483, 1489-1490 (E.D. Va. 1989), aff'd, 914 F.2d 582 (4th Cir. 1990), rev'd in part on other grounds, vacated in part sub nom. Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753 (1993). Providers of abortions also received numerous death threats. S. Rep. 10. ___________________(footnotes) 1 All references to 18 U.S.C. 248 are to the 1994 edition of the United States Code, in which that Section will be codified. ---------------------------------------- Page Break ---------------------------------------- 3 Violence aimed at abortion providers and facilities, including shootings, bombings, arson, death threats, chemical attacks, and clinic blockades, has occurred in at least 28 States, the District of Columbia, and dozens of cities. S. Rep. 12. Many of these activities have been organized nationwide and directed across state lines. Id. at 13. In addition, clinics and other providers of reproductive health services are involved in interstate commerce, both directly and indirectly. Id. at 31. Many patients seeking such services travel to obtain services in another State (ibid.), and clinic employees often travel across state lines to work (ibid.). The declared purpose of the violent and threaten- ing activities aimed at abortion providers, facilities, and patients has been to inhibit women's access to safe and legal abortion services. Id. at 11 & n.22; NOW, 726 F. Supp. at 1488. In some cases, the purpose was to eliminate access by intimidating physicians from performing abortions and closing clinics, Congress concluded that this violent and threatening conduct interfer[es] with the interstate commercial ac- tivities of health care providers, including the purchase and lease of facilities and equipment, sale of goods and services, employment of per- sonnel and generation of income, and purchase of medicine, medical supplies, surgical instru- ments and other supplies from other states. H.R. Conf. Rep. No. 488, 103d Cong., 2d Sess. 7 (1994). See also S. Rep, 11, 32. Congress found that federal, state, and local laws in effect prior to the enactment of the Access Act were inadequate to prevent violence at abortion facili- ties. S. Rep. 17. Congress passed the Access Act in ---------------------------------------- Page Break ---------------------------------------- 4 response to the record of nationwide violence and obstruction. President Clinton signed the bill into law on May 26, 1994. The Act provides civil and criminal penalties for anyone who: (1) by force or threat of force or by physical obstruction, intentionally injuries, 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 per- sons from, obtaining or providing reproductive health services; [or] * * * * * (3) intentionally damages or destroys the property of a facility, or attempts to do so, be- cause such facility provides reproductive health services. Access Act 3, 108 Stat. 694 (18 U.S.C. 248(a)). 2. In addition to defining a number of its terms, the Act provides, as one of its "Rules of Construction," that "[n]othing in this section shall be construed * * * (1) to prohibit any expressive conduct (in- cluding peaceful picketing or other peaceful demon- stration) protected from legal prohibition by the First Amendment to the Constitution." Access Act 3, 108 Stat. "696 (18 U.S.C. 248(d) (1)). The civil remedies prescribed by the Act include injunctive relief, compensatory or statutory damages, punitive damages, and costs and fees, Access Act 3, ___________________(footnotes) 2 The Act also prohibits the same activities if directed at any person lawfully exercising or seeking to exercise the right of religious freedom at a place of religious worship, or the property of a place of religious worship. Access Act 3, 108 Stat. 694 (18 U.S.C. 248(a) (2) and (3)). Petitioners do not challenge any of those provisions. ---------------------------------------- Page Break ---------------------------------------- 5 108 Stat. 695-696 (18 U.S.C. 248(c)). The Act au- thorizes civil actions by the Attorney General of the United States or a State Attorney General. Ibid. (18 U.S.C. 248(c) (2) and (3)). In such actions, the court may also impose a monetary penalty not exceeding a statutorily specified amount, which varies depending on the nature of the offense. Ibid. Persons involved in providing or seeking to provide, or obtain- ing or seeking to obtain, services in a facility that provides reproductive health services also may bring civil actions for certain civil remedies. Access Act 3, 108 Stat. 695 (18 U.S.C. 248(c) (1)). The criminal penalties prescribed by the Act vary with the nature of the violation, depending on whether the conviction is for a first offense and the level of violence involved. Access Act 3, 108 Stat. 695 (18 U.S.C. 248 (b)). 2. Factual Background Petitioner's Second Amended Complaint was dis- missed for failure to state a claim upon which relief could be granted. The following statement therefore assumes the truth of the facts stated in that complaint: Petitioner American Life League, Inc., conducts educational and legislative activities regarding the rights of "persons born and unborn." See Pet. App. 3a (quoting Second Amended Complaint). The five individual petitioners oppose abortion "upon theolog- ical, moral and other grounds." Ibid. One petitioner has often prayed near clinics that perform abortions and the other petitioners have conducted peaceful demonstrations that have physically obstructed access to abortion clinics. Ibid. ---------------------------------------- Page Break ---------------------------------------- 6 Petitioners filed this action against the Attorney General of the United States alleging that the indi- vidual petitioners' continuing anti-abortion activities put them in jeopardy of violating the Access Act and that the Act violates the Constitution and the Religi- ous Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. Pet. App. 3a. Additional de- fendants were allowed to intervene, including a re- productive health clinic, two physicians, and the Na- tional organization for Women. Id. at 4a. The district court dismissed petitioners' complaint for failure to state a claim upon which relief could be granted, Pet. App. 25a-37a. The court of appeals affirmed. Id. at la-24a. 3. The court concluded that Congress had the authority under the Commerce Clause to enact the Access Act. Id. at 7a. The court found that, "[b]ased on an extensive legislative rec- ord, Congress rationally concluded that violence, threats of force, and physical obstructions aimed at persons seeking or providing reproductive health services affect interstate commerce." Ibid. The court reviewed the congressional findings and concluded that Congress found that interstate commerce was threatened, Ibid. It also ruled that the regulatory means chosen by Congress are reasonably adapted to the Act's permissible ends, including protecting the flow of goods and services in commerce, protecting patients in their use of lawful reproductive health clinic services, protecting women exercising their con- ___________________(footnotes) 3 Breed on its decision in this case, the court of appeals also affirmed the dismissal of the complaint in Woodall v. Reno, 47 F.3d 656 (4th Cir. 1995). The Court denied a petition for a writ of certiorari in that case on June 19, 1995. Woodall V. Reno, No. 94-1417. ---------------------------------------- Page Break ---------------------------------------- 7 stitutional right to choose an abortion, protecting the safety of reproductive health care providers, and pro- tecting reproductive health care facilities from physi- cal destruction and damage. Ibid. The court also held that the Access Act does not violate the First Amendment's Free Speech Clause. The court reasoned that the Act targets constitu- tionally unprotected activities such as violence, threats and blockades. To the extent it incidentally proscribes some conduct with expressive elements, such as peaceful but obstructive picketing, the Act is content and viewpoint neutral and therefore sub- ject to intermediate scrutiny under United States v. O'Brien, 391 U.S. 367 (1968). Pet. App. 11a-13a. The court found that the Act serves substantial gov- ernment interests, is not aimed at expression, is nar- rowly tailored, and leaves open ample alternative means for communication. Id. at 14a-17a. The court rejected petitioners' claim that the Act is unconsti- tutionally vague or overbroad. Id. at 17a-18a. Finally, the court of appeals ruled that the Act does not violate the First Amendment's Free Exer- cise Clause or RFRA. The court reasoned that the Access Act "punishes conduct for the harm it causes, not because the conduct is religiously motivated." Pet. App. 20a. The court held that, unlike the ordinances at issue in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 113 S. Ct. 2217 (1993), which singled out religious practices for discriminatory treatment, the Access Act is a "generally applicable law, neutral toward religion," and therefore does not violate the Free Exercise Clause, Pet. App. 20a. With regard to RFRA, the court ruled that the Access Act serves compelling government interests and is narrowly ---------------------------------------- Page Break ---------------------------------------- 8 tailored to prohibit only activity that Congress found to be a national problem, i.e., force, threats of force, and physical obstruction. Id. at 23a. The court pointed out that "those opposed to abortion or to any other reproductive health service retain the freedom to express their deeply-held moral or reli- gious views in a peaceful, non-obstructive way." Id. at 24a. ARGUMENT 1. Petitioners contend (Pet. 7-12) that Congress exceeded its authority under the Commerce Clause by enacting the Access Act. Petitioners argue (Pet. 9) that the Act is invalid under United States v. Lopez, 115 S. Ct. 1624 (1995), because the activity it prohibits does not substantially affect interstate commerce. 4. The Court in Lopez reaffirmed Congress's power under the Commerce Clause to regulate three broad categories of conduct. 115 S. Ct. at 1629-1630. First, Congress is empowered to regulate the use of the channels of interstate commerce. Id. at 1629. Second, Congress is empowered to "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce." Ibid. Third, Con- gress is empowered to regulate or prohibit "activities that substantially affect interstate commerce." Id. at 1629-1630. ___________________(footnotes) 4 Petitioners also contend (Pet. 12-14) that Congress did not have authority to enact the Access Act under Section 5 of the Fourteenth Amendment. In light of its ruling that the Access Act is within Congress' commerce power, the court of appeals did not reach this issue. Pet. App. 6a. ---------------------------------------- Page Break ---------------------------------------- 9 The Access Act passes muster under two of the categories identified by the Court in Lopez. First, the Act may be sustained as a proper exercise of Congress's power to regulate or protect "persons or things in interstate commerce." 115 S. Ct. at 1629. Congress reasonably concluded that "persons [who are] * * * obtaining or providing reproductive health services," Access Act 3, 108 Stat. 694 (18 U.S.C. 248(a) (1)), often move in interstate com- merce. As the Senate Report observed, "many of the patients who seek services from [abortion pro- viders] engage in interstate commerce by traveling from one state to obtain [the abortion] services in another." S. Rep. 31; accord H.R. Rep. No. 306, 103d Cong., 1st Sess. 10 ( 1993) (H.R. Rep.). Addi- tionally, physicians and other reproductive health services providers often travel across state lines to provide abortion services. Ibid. Substantial evidence also demonstrated that Reproductive health services facilities acquire and dispense equipment, "medicine, medical supplies, surgical instruments and other nec- essary medical products * * * from other States." S. Rep. 31. Cf. United States v. Robertson, 115 S. Ct. 1732, 1733 (1995) (per curiam). The Access Act may also be sustained as an exer- cise of Congress's power to regulate "activities that substantially affect interstate commerce. " Lopez, 115 S. Ct. at 1630. Congress is empowered to regulate conduct that "substantially affects" interstate com- merce when considered in the aggregate. Wickard v. Filburn, 317 U.S. 111, 127-128 (1942). "Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power `to excise, as trivial, individual instances' of the class." Perez v. United States, 402 U.S. 146, 154 ---------------------------------------- Page Break ---------------------------------------- 10 (1971) (emphasis omitted) (upholding federal law criminalizing loan sharking without regard to whether particular loan transaction affected interstate com- merce); see also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257-258 (1964) (motel catering to interstate guests) ; Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 329-330 (1991) ( boycott against one ophthalmologist affects interstate com- merce). As indicated above, Congress had ample basis for con- cluding that reproductive health services substantially involve interstate commerce: Providers purchase sup- plies from sources in other States; clinic employees and doctors often cross state boundaries to get to work; and many patients who seek abortion services "engage in interstate commerce by traveling from one state to obtain services in another." S. Rep. 31. Congress also had ample basis for concluding that the violent and obstructive conduct proscribed by the Access Act may have an adverse impact on this in- terstate commerce. S. Rep. 14, 17, 31; H.R. Rep. 8-9. Such conduct has forced some clinics to close, caused millions of dollars in damages to others, and reduced the availability of reproductive health serv- ices and the interstate movement of people and goods. S. Rep. 5, 17, 31; H.R. Rep. 8. The purpose of the conduct is to suppress commerce in abortion services. S. Rep. 32. Extensive evidence that interference with abortion services is a problem of national scope fur- ther buttresses Congress's conclusion that the pro- scribed conduct has a substantial effect on interstate commerce. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 300-301 (1964 ) ("nationwide scope" of the prob- lem of discrimination supported Congress's conclusion that it substantially affected interstate commerce). ---------------------------------------- Page Break ---------------------------------------- 11 The Access Act differs in several relevant respects from the statute held invalid in Lopez. In Lopez, the Court held invalid the provision of the Gun Free School Zones Act that made criminal the possession of a firearm in the vicinity of a school. The Court reasoned that the statute "by its terms has nothing to do with `commerce' or any sort of economic enter- prise." 115 S. Ct. at 1630-1631; id. at 1640 (Ken- nedy, J., joined by O'Connor, J., concurring). The Court concluded that "possession of a firearm in a local school zone does [not] substantially affect inter- state commerce, " id. at 1632, noting that possession of a gun in the vicinity of a school zone bore such an attenuated relationship to interstate commerce that the Court would be required to "pile inference upon inference" to conclude that the regulated conduct affects commerce, id. at 1634. The Court also noted the absence of evidence or congressional findings dem- onstrating that the regulated conduct substantially affects interstate commerce. Id. at 1631. In contrast, the Access Act "by its terms" directly addresses "commercial activity" and "economic enter- prises," and prohibits interference with persons be- cause they are engaging in commercial transactions, 3, 108 Stat. 694, (18 U.S.C. 248(a) (1) ("obtain- ing or providing reproductive health services") ). It also prohibits blockading of commercial facilities, 3, 108 Stat. 696 (18 U.S.C. 248 (e)), Such blockading interferes with the provision of an interstate com- mercial service and threatens in the aggregate to eliminate abortion services from national commerce. See S. Rep. 3. The "design of the statute ha[s] an evident commercial nexus, " Lopez, 115 S. Ct. at 1640. It ensures access to a particular commercial service ---------------------------------------- Page Break ---------------------------------------- 12 and is designed to prevent elimination of that service from the national commerce. No inferential leaps are required-the purpose and effect of the prohib- ited conduct are to halt a service that Congress con- cluded is part of interstate commerce. The Access Act is also supported by a legislative record contain- ing abundant evidence and specific congressional find- ings of the effect, of the proscribed conduct on inter- state commerce. The district court decision in United States v. Wilson, 880 F. Supp. 621, (E.D. Wis. 1995), appeal pending No. 95-1871 (7th Cir.), does not justify re- view by this Court at this juncture. In holding that the statute exceeds congressional authority to legis- late under the Commerce Clause and the Fourteenth Amendment, the Wilson court parted company with every other court that has considered the validity of the Access Act. The opinion in Wilson was issued prior to this Court's opinion in Lopez, and, for the reasons already noted, its holding is incorrect. In an opinion issued after the Court's opinion in Lopez, the Eleventh Circuit upheld the Access Act as within Congress's Commerce Clause power and expressly re- jected the reasoning of the district court in Wilson. Cheffer v. Reno, 55 F.3d 1517, 1521 n.6 (1995). The Wilson case is currently pending on appeal before the Seventh Circuit. Such an erroneous district court decision creates no conflict in the circuits calling for this Court's review. 2. Petitioners contend (Pet. 19-26) that the Ac- cess Act is facially invalid under the First Amend- ment because it is a content and viewpoint based re- striction on speech. Petitioners' arguments in this regard are substantially similar to those raised by petitioners in Woodall v. Reno, No. 94-1-417, which ---------------------------------------- Page Break ---------------------------------------- 13 the Court declined to review. See note 3, supra. The Court should deny review of these issues in the pres- ent case for the same reasons. a. Petitioners' argument is based cm a funda- mental misunderstanding of the prohibitions con- tained in the Access Act. The Act regulates conduct, not speech. The Act does not prohibit speech-even speech that strongly opposes abortion-in the imme- diate vicinity of facilities that provide abortions. Instead, it prohibits the use of "force," the "threat of force," and "physical obstruction" to achieve cer- tain ends. As this Court has made clear, such con- duct is outside the scope of First Amendment protec- tion. See Wisconsin v. Mitchell, 113 S. Ct. 2194, 2199 (1993 ) (violence and physical assaults not pro- tected by First Amendment) ; Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516, 2529 (1994) (threats not protected by First Amendment); R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2546 (1992) (same); Cox v. Louisiana, 379 U.S. 536, 555 (1965) (First Amendment does not create right to cordon off streets or entrances to a building) ; Cameron v. Johnson, 390 U.S. 611 (1968) (upholding statute forbidding unreasonable interference with access to buildings). 5. ___________________(footnotes) 5 The Act also provides narrowing definitions of several key terms that further limit the conduct it proscribes. Access Act 3, 108 Stat. 696 (18 U.S.C. 248(e)). The Act defines "interfere with" to mean "to restrict a person's freedom of movement ." Ibid. (18 U.S.C. 248 (e) (2)). "Intimidate" means "to place a person in reasonable apprehension of bodily harm to him- or herself or to another." Ibid. (18 U.S.C. 248 (e) (3) ). "Physical obstruction" means "rendering im- passable ingress to or egress from a facility that provides reproductive health services * * *, or rendering passage to ---------------------------------------- Page Break ---------------------------------------- 14 The Act does not restrict petitioners' ability to communicate with their desired audience. The Act permits speech, signs, prayer, non-obstructive picket- ing, distribution of handbills, and other peaceful forms of expression, even in the immediate vicinity of covered facilities and regardless of the content of the speech. See United States v, Brock, 863 F. Supp. 851, 864-865 (E.D. Wis. 1994), appeals pending, Nos. 95-1308, 95-1309, 95-1333, 95-1430, 95-1488, 95-1494 (7th Cir. ) ; Riely v. Reno, 860 F. Supp. 693, 700-704 (D. Ariz. 1994) ; Council for Life Coalition v. Reno, 856 F. Supp. 1422, 1426-1427 (S.D. Cal. 1994) . b. Even if the conduct regulated by the Access Act had sufficient expressive content to implicate the First Amendment, the Act would easily survive scru- tiny under the test set forth by this Court in United States v. O'Brien, 391 U.S. 367 (1968). The Act (a) serves a substantial governmental interest, (b) re- stricts conduct for reasons unrelated to its expressive content, and (c) does not impinge unnecessarily on expression. See id. at 377, The Act serves at least three substantial and legiti- mate governmental interests: preventing violence, preserving public access to health care, and protect- ing the exercise of the right to abortion. Those inter- ests are unrelated to any expressive content the for- or from such a facility * * * unreasonably difficult or hazard- ous." Ibid. (18 U.S.C. 248(e) (4)). "Reproductive health services" means reproductive health services provided in a hospital, clinic, physician's office, or other facility, and in- cludes medical, surgical, counseling or referral services re- lating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy." 3, 108 Stat. 696-697 (18 U.S.C. 248(e) (5)). ---------------------------------------- Page Break ---------------------------------------- 15 bidden conduct may have. Nor does the Access Act proscribe conduct with reference to its expressive content, if any. As explained above, the Act permits the expression of any message, including a message of hostility to abortion. In addition, the Act does not limit its protection to "abortion clinics"; it covers all facilities offering reproductive health services, including facilities of- fering services related to carrying pregnancies to term. The use of force or physical obstruction to blockade such a facility violates the Act as does a blockade of a facility offering abortion services. Nor does conduct violate the Act only when cor- related with a particular message or viewpoint. For example, a person who supports the right to abortion might have purely personal reasons for desiring to stop a particular woman from having a particular abortion; the use of force to achieve this end would violate the Act. Petitioners' assertion that the Act applies only to those who oppose abortion is incorrect: the Act proscribes conduct without regard to the message conveyed (if any) or the viewpoint of the person engaging in that conduct. Petitioners assert (Pet. 18) that the legislative history of the Act shows that the Act's purpose was to restrain anti-abortion protests. The violence and blockades in which some anti-abortion protesters en- gaged were catalysts that led to passage of the Act; the legislative history, however, shows no congres- sional animus toward the message conveyed by such protesters. Congress designed the Act to proscribe unprotected conduct, while leaving protesters com- pletely free to convey their message by lawful means. The Act proscribes certain conduct only when a person directs that conduct at another "because" the ---------------------------------------- Page Break ---------------------------------------- 16 other seeks to obtain or provide reproductive health services. This requirement concerns the motive of a violator, not the message that person wishes to con- vey. The First Amendment does not prevent a civil or criminal statutory provision from turning on such a motive. Wisconsin v. Mitchell, 113 S. Ct. 2194, 2199 (1933). 6. The fact that the majority of persons who wish to engage in conduct that would violate the Access Act may, in practice, be persons who desire to express a message of hostility to abortion does not under- mine the constitutionality of the Act. As O'Brien established, if a statute neutrally proscribes conduct, the fact that people who follow a particular ideology are more likely than others to engage in that con- duct, or that such people wish to use illegal activity to express a message, does not affect the validity of the prohibition. The law at issue in O'Brien forbade the destruction of draft cards-conduct that, at the time the law was passed, was generally engaged in only by persons intending to express a message of hostility to the Vietnam war. But the law was none- theless constitutional because it proscribed conduct without regard to any intended or unintended mes- sage. The Access Act similarly proscribes violent, threatening or obstructive conduct, regardless of any ___________________(footnotes) 6 The motive requirement of the Access Act limits the cover- age of the law to conduct that implicates federal concerns. It distinguishes the use of force for the deliberate purpose of interfering with access to reproductive health services from, for example, a random attack of a woman on her way to receive such services, by an offender who neither knew nor cared where his victim was going. Such an attack would not implicate the federal concerns that led to passage of the Access Act, and Congress has chosen to leave such conduct to state regulation. ---------------------------------------- Page Break ---------------------------------------- 17 viewpoint of the violator or content of the message he or she may want to send. The Access Act is narrowly tailored so as not to impinge unnecessarily on expression. Narrow tailor- ing is satisfied if a prohibition "promotes a sub- stantial government interest that would be achieved less effectively absent" the restriction, and if the pro- hibition does not "burden substantially more speech than is necessary to further the government's legiti- mate interests." Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). The Act easily meets that test. It is narrowly drawn to prohibit only unpro- tected conduct, not speech. Its limiting definitions of key statutory terms further ensure that it proscribes only force, threats, and blockades that interfere with access to reproductive health care. The Act does not unnecessarily impinge on expression; indeed, even in the immediate vicinity of covered facilities, the Act leaves open every peaceful and non-obstructive means for people to express their views. This Court's recent decision in Madsen v. Women's Health Ctr., Inc., supra, confirms the Act's constitu- tionality. Madsen concerned protests outside a wom- en's health clinic in Florida. A state court enjoined the defendants and those acting in concert with them from, inter alia, engaging in essentially the same conduct that is forbidden by the Access Act: (1) in- terfering with access to, ingress into, and egress from the clinic; (2) physically abusing, intimidating, ha- rassing, touching, or assaulting persons entering or leaving the clinic; and (3) harassing, intimidating or threatening any doctor or other employee of the clinic. See 114 S. Ct. at 2522. The injunction was limited in its application to the named, pro-life activ- ist defendants and those acting in concert with them. ---------------------------------------- Page Break ---------------------------------------- 18 This Court nevertheless held the injunction to be content neutral; the Court concluded that the restric- tions were unrelated to the defendants' message and that any effect on their expression was incidental to the government's regulation of threatening conduct. Id. at 2524. 7. 3. Petitioners assert (Pet. 24-25) that the Access Act is unconstitutionally vague and overbroad. As noted above, however, the Act prohibits only the use of force, the threat of force, or physical obstruction to achieve certain ends. The term "physical obstruc- tion" is defined to meanrendering impassable ingress to or egress from a facility that provides reproductive health serv- ices * * * or rendering passage to or from such a facility * * * unreasonably difficult or haz- ardous. Access Act 3, 108 Stat. 696 (18 U.S.C. 248(e) (4)). This provision is almost identical to one this Court upheld against a vagueness challenge in Cameron v. Johnson, supra. That case concerned a Mississippi law that made it a crime for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from [specified buildings]. ___________________(footnotes) 7 Madsen held that a more stringent First Amendment test applies to content-neutral injunctions than to content-neutral statutes. 114 S. Ct. at 2524-2526. Madsen accordingly demon- strates the error of petitioners' assertion (Pet. 19-20) that the Access Act should be subject to more stringent scrutiny than the Madsen injunction. ---------------------------------------- Page Break ---------------------------------------- 19 Id. at 612 n.1. As in Cameron, the statute here "clearly and precisely delineates its reach in words of common understanding." Id. at 616. 8. 4. a. Petitioners assert (Pet. 27-28) that the Ac- cess Act violates the Free Exercise Clause because its object is to restrict practices due to their religious motivation. Petitioners contend that the Act is in- valid under Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993), because the Act is an attempt by abortion advocates "to suppress the religiously motivated expression and conduct of their opponents." Pet. 27. In Lukumi, the Supreme Court struck down city ordinances prohibiting the ritual slaughter of ani- mals as practiced by the Santeria religion. The Court found that the city council, although ostensibly act- ing toward secular ends such as the protection of animal welfare, in fact adopted laws that pursued those ends only with regard to conduct motivated by religion, and carefully exempted conduct, such as hunting, that involved an identical degree of harm to animals but was not religious in nature. See 113 S. Ct. at 2222, 2229. The legislative history of the laws also showed extreme, express hostility by city council members toward the disfavored religion. Id. at 2231. In contrast, the Access Act forbids specified con- duct without regard to whether it was undertaken ___________________(footnotes) 8 Petitioners also challenge (Pet. 25-26) the provision for awarding damages under the Access Act cent ending that the Act impermissibly requires payment of damages for commer- cial injuries caused in whole or in part by First Amendment expression. The court of appeals correctly rejected the claim because the Access Act "does not subject anyone to damages caused by protected expression," but only for unprotected conduct. Pet. App. 18a-19a. ---------------------------------------- Page Break ---------------------------------------- 20 for religious or secular reasons. Whether a violator acts out of religious conviction or because of a com- pletely secular view makes no difference under the Act. The same conduct is forbidden for all. The Court has held that neutral, generally applicable law does not offend the Free Exercise Clause, regardless of whether it has an incidental effect on religious prac- tices. Employment Division v. Smith 494 U.S. 872 (1990). The Act does not have the hidden effect of proscribing only religious conduct. Nor is there evi- dence of legislative hostility toward religion 9. In any event, the Act serves compelling government inter- ests, including protection of public health and safety. See p. 21, infra. b. Petitioners also assert (Pet. 28-29) that the Access Act violates RFRA, 42 U.S.C. 2000bb et seq. RFRA provides that the government may not "sub- stantially burden a person's exercise of religion" un- less it "demonstrates that the 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 * * * in- terest." 42 U.S.C. 2000bb-1 (Supp. V 1993). Peti- tioners' exercise of religion is not substantially bur- dened here. They do not contend that physical ob- struction of clinics is necessary to their observance of their faith. Pet. App. 36a. They allege that they desire to pray for the souls of women obtaining abor- tions and for the souls of unborn children. Ibid. The Act does not preclude petitioners from such prayer, even in the vicinity of abortion clinics. They are simply precluded from using force threats of ___________________(footnotes) 9 The Access Act was passed by the same Congress that passed the Religious Freedom Restoration Act, and the Access Act itself provides new protection against interference with religious activities at places of religious worship. ---------------------------------------- Page Break ---------------------------------------- 21 force, or physical obstruction; and petitioners do not assert that the use of force, the threat of force or physical obstruction is a part of their exercise of religion. Because the Access Act forbids only activi- ties that are not alleged to be part of petitioners' religions, while leaving them free to engage in reli- gious activities such as prayer, it places no burden on their exercise of religion. Moreover, the court of appeals correctly ruled that the Access Act serves compelling governmental inter- ests-''[a]fter all, the Act protects public health by promoting unobstructed access to reproductive health facilities. It also protects public safety by proscrib- ing all violent, threatening or obstructive conduct specifically aimed at patients and providers of repro- ductive health services." Pet. App. 23a. The court of appeals also correctly ruled that the Act is suffi- ciently narrowly tailored. Ibid. As discussed above, the prohibitions of the Act, and the definitions of the Act's terms, are directed only to conduct involving force, threats of force, or obstruction that Congress found to be a grave national problem. The Act does not sweep within its scope activities unrelated to the evil Congress sought to address. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General FRANK W. HUNGER Assistant Attorney General MARK B. STERN Attorney JULY 1995