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http://laws.findlaw.com/4th/941869p.html |
Filed: March 20, 1995
American Life League, Inc., et al,
Plaintiffs - Appellants,
versus
Janet Reno, et al,
Defendants - Appellees.
The Court amends its opinion filed February 13, 1995, as follows:
On page 2, section 2, line 1 -- Appellants' counsel's firm is corrected to read "Law Office Marion Edwyn Harrison."
On page 2, section 2, line 6 -- The following counsel are added to the ON BRIEF section: "John A. Baker, Jr., Grover Joseph Rees, Daniel M. Redmond, LAW OFFICES MARION EDWYN HARRISON, Falls Church, Virginia, for Appellants."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMERICAN LIFE LEAGUE,
INCORPORATED; DAVID G. P.
ENGLEFIELD; PATRICIA LOHMAN;
GERALD WEYMES, Reverend;
ANTOINETTE C. CLEARY; PATRICIA
SAVINO,
Plaintiffs-Appellants,
v.
JANET RENO; NATIONAL ABORTION
No. 94-1869
FEDERATION; COMMONWEALTH
WOMEN'S CLINIC; CAPITOL WOMEN'S
CENTER, INCORPORATED; GEORGE
TILLER, Doctor; SUSAN WICKLUND,
Doctor; NATIONAL ORGANIZATION FOR
WOMEN,
Defendants-Appellees.
AMERICAN CIVIL LIBERTIES UNION;
ACLU FOUNDATION OF VIRGINIA,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-700-A)
Argued: November 3, 1994
Decided: February 13, 1995
Before HALL and MICHAEL, Circuit Judges,
and CHAPMAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Hall and Senior Judge Chapman joined.
_________________________________________________________________
COUNSEL
ARGUED: Marion Edwyn Harrison, LAW OFFICES MARION
EDWYN HARRISON, Falls Church, Virginia, for Appellants. Mark
I. Levy, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Deborah A. Ellis, NOW LEGAL
DEFENSE AND EDUCATION FUND, New York, New York, for
Appellees. ON BRIEF: John A. Baker, Jr., Grover Joseph Rees,
Daniel M. Redmond, LAW OFFICES MARION EDWYN HARRISON, Falls
Church, Virginia, for Appellants. Frank W. Hunger, Assistant Attorney
General, Helen F. Fahey, United States Attorney, Mark B. Stern, Jonathan
R. Siegel, Civil Division, Deval L. Patrick, Assistant Attorney Gen-
eral, William R. Yeomans, Counsel to the Assistant Attorney General,
Civil Rights Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C.; Martha F. Davis, NOW LEGAL DEFENSE
AND EDUCATION FUND, New York, New York; Catherine Albisa,
CENTER FOR REPRODUCTIVE LAW & POLICY, New York,
New York, for Appellees. Catherine Weiss, Louise Melling, Karen
Leiter, Reproductive Freedom Project, Steven R. Shapiro, AMERI-
CAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York; Stephen B. Pershing, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for
Amici Curiae.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
Plaintiffs, the American Life League, Inc. and five individuals, all
actively opposed to abortion, appeal from a judgment upholding the
validity of the Freedom of Access to Clinic Entrances Act of 1994
(the Access Act or Act), Pub. L. No. 103-259, 108 Stat. 694 (1994)
(to be codified at 18 U.S.C. § 248). We affirm.
In affirming we first conclude that the Access Act is within the
commerce power of Congress and that congressional action here was
not barred by principles of federalism. Second, we decide that the Act
does not violate the First Amendment's Free Speech Clause. The Act
targets unprotected activities, such as violence and clinic blockades.
However, to the extent that the Act might incidentally proscribe some
conduct with expressive elements (such as peaceful but obstructive
picketing), we examine it under the First Amendment. Because we
find that the Act is content and viewpoint neutral, we subject it to
intermediate scrutiny. Under that level of scrutiny we conclude that
the Act serves substantial government interests, that it is not aimed at
expression, and that it is narrowly tailored. We also conclude that the
Act is neither overbroad nor vague. The Act's liquidated damages
provision also withstands the First Amendment challenge. Third, we
conclude that the Act does not violate the First Amendment's Free
Exercise Clause or the Religious Freedom Restoration Act (RFRA),
42 U.S.C. §§ 2000bb to 2000bb-4.
I.
On May 26, 1994, the same day the President signed the Access
Act into law, plaintiffs filed this action to challenge it in the United
States District Court for the Eastern District of Virginia.
Plaintiffs allege the following in their second amended complaint.
Plaintiff American Life League, Inc. (ALL) conducts educational and
legislative activities "relating to the human rights of persons born and
unborn." The five individual plaintiffs, Antoinette C. Cleary, David
G. P. Englefield, Patricia Lohman, Patricia Savino and the Reverend
Gerald Weymes, all oppose abortion "upon theological, moral and
other grounds." The Reverend Mr. Weymes has often prayed near
clinics that perform abortions. The other individual plaintiffs and
some ALL members have "demonstrated, prayed and sidewalk-
counseled within the vicinity of abortion clinics." Plaintiffs' activities
have been peaceable, and they do not condone "nonpeaceable or vio-
lent conduct." Their actions, however, have physically obstructed
access to abortion clinics.
Plaintiffs also allege that their continuing anti-abortion activities
put them in jeopardy of violating the Access Act. They claim that the
Act, by outlawing their activities, violates the Constitution and
RFRA.
Plaintiffs brought this action against Janet Reno, Attorney General
of the United States. The district court allowed five additional defen-
dants to intervene: the National Abortion Federation; the National
Organization for Women; Commonwealth Women's Clinic and Capi-
tol Women's Center, two reproductive health clinics that provide
counseling, birth control advice, contraceptives, medicine, pre-natal
care and abortions; and Dr. George Tiller and Dr. Susan Wickland,
two physicians who perform abortions. The district court accepted (as
did we) an amicus brief from the American Civil Liberties Union and
the ACLU Foundation of Virginia.
On June 1, 1994, five days after the complaint was filed, the Attor-
ney General filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The district court acted with dispatch, holding a
hearing on June 10, 1994, and issuing an opinion and order dismiss-
ing the second amended complaint with prejudice on June 16, 1994.
See American Life League, Inc. v. Reno , 855 F. Supp. 137 (E.D. Va.
1994). Plaintiffs now appeal that order.
II.
Congress passed the Access Act in response to protracted and
nationwide violence and access obstruction at facilities providing
abortions. Between 1977 and early 1993, more than 1,000 acts of vio-
lence against abortion providers and more than 6,000 clinic blockades
were reported in the United States. S. Rep. 117, 103d Cong. 1st Sess.
31 (1993); H. R. Rep. No. 306, 103d Cong. 2d Sess. 6-7 (1993)
reprinted in 1994 U.S.C.C.A.N. 699, 703. "These acts included at
least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kid-
nappings, 327 clinic invasions, and one murder." Id. Congress con-
cluded that state and local law enforcement agencies were often
unable and sometimes unwilling to protect the patients and staffs of
these clinics from violence and severe disruption. S. Rep. No. 117 at
3, 18-21; H. R. Rep. No. 306 at 10.
The Access Act aims to protect and promote public safety and
health "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." Act, § 2. To that
end the Act provides criminal and civil penalties against anyone who:
(1) by force or threat of force or by physical obstruc-
tion, 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;
. . . or
(3) intentionally damages or destroys the property of a
facility, or attempts to do so, because such facility provides
reproductive health services . . . .
Act, § 3(a). 1
The Access Act defines its key terms. Act, § 3(e). The term "inter-
fere with" means "to restrict a person's freedom of movement." "In-
timidate" means "to place a person in reasonable apprehension of
bodily harm to him- or herself or to another." "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." "Repro-
ductive 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 Act also provides a rule of construction: "[n]othing in this sec-
tion shall be construed -- (1) to prohibit any expressive conduct
(including peaceful picketing or other peaceful demonstration) pro-
tected from legal prohibition by the First Amendment to the Constitu-
tion." Act, § 3(d).
The criminal penalties prescribed by the Act vary with the nature
of the violation. For example, a first offense involving only a nonvio-
lent physical obstruction carries a penalty of imprisonment for not
more than six months or a fine of not more than $10,000. An offense
resulting in death carries a penalty of imprisonment for any term of
years or for life. Act, § 3(b).
The civil remedies prescribed by the Act include injunctive relief,
compensatory or statutory damages ($5,000 per violation), punitive
damages, and costs and fees. Act, § 3(c). These civil remedies are
available to any person injured in providing or obtaining services at
a reproductive health facility. Finally, the Act also authorizes civil
actions by the Attorney General of the United States or any State
Attorney General. Id.
We turn now to plaintiffs' several challenges to the Act.
III.
A.
As a threshold matter plaintiffs argue that Congress lacks the
power to pass the Access Act. The Act identifies the Commerce
Clause and section 5 of the Fourteenth Amendment as the sources of
congressional power in this instance. Act, § 2. We conclude that the
commerce power permits Congress to regulate activities affecting
reproductive health services. As a result, we need not reach plaintiffs'
argument that section 5 of the Fourteenth Amendment does not pro-
vide Congress with authority.
A federal statute is valid under the Commerce Clause if Congress
(1) rationally concluded that the regulated activity affects interstate
commerce and (2) chose a regulatory means reasonably adapted to a
permissible end.
Hodel v. Virginia Surface Mining & Recl. Ass'n
,
452
U.S. 264, 276
Based on an extensive legislative record, Congress rationally con-
cluded that violence, threats of force, and physical obstructions aimed
at persons seeking or providing reproductive health services affect
interstate commerce. Congress marshaled, among others, the follow-
ing facts to establish the interstate connection. Many women travel
across state lines to seek reproductive health care. S. Rep. 117, 103d
Cong. 1st Sess. 31 (1993); H. R. Conf. Rep. No. 488, 103d Cong. 2d
Sess. 7 (1994) reprinted in 1994 U.S.C.C.A.N. 724. Reproductive
health facilities engage doctors and other staff in an interstate market.
For example, Dr. David Gunn, who was murdered in Florida in 1993,
performed abortions in several states. S. Rep. No. 117 at 3; H. R. Rep.
No. 306, 103d Cong. 2d Sess. 6-7 (1993) reprinted in 1994
U.S.C.C.A.N. 699, 704. These facilities buy medical and office sup-
plies that move in interstate commerce. S. Rep. No. 117 at 3; H. R.
Conf. Rep. No. 488 at 7. "[C]linics have been closed because of
blockades and sabotage and have been rendered unable to provide ser-
vices." S. Rep. No. 117 at 31. From these facts Congress concluded
that interstate commerce was threatened. S. Rep. No. 117 at 31; H. R.
Rep. No. 306 at 8-9.
Congress also chose regulatory means reasonably adapted to per-
missible ends. The Act's criminal and civil penalties are designed to
deter violent, obstructive and destructive conduct. The penalties are
reasonably adapted to the Act's following permissible ends: (1) pro-
tecting the free flow of goods and services in commerce, (2) protect-
ing patients in their use of the lawful services of reproductive health
facilities, (3) protecting women when they exercise their constitu-
tional right to choose an abortion, (4) protecting the safety of repro-
ductive health care providers, and (5) protecting reproductive health
care facilities from physical destruction and damage.
Together, these findings, these means and these objectives are
more than ample to justify Congress's invocation of the commerce
power. See Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241
(1964); Katzenbach v. McClung , 379 U.S. 294 (1964).
B.
In a final, brief subpoint under their argument that "there is no con-
stitutional authority for [the Access Act]," plaintiffs urge us to reject
the Act as an unwarranted "incursion upon federalism and the federal
judiciary." Brief for Appellants at 39, 44. First, plaintiffs suggest that
any public safety problems at reproductive health facilities should be
handled under existing state laws. Second, they express concern that
the Access Act gives federal courts "undue jurisdiction" and will add
a flood of new cases to already crowded federal dockets. We must
reject these arguments. Congress, not the courts, determines the need
for new federal laws. And Congress, subject only to Article III of the
Constitution, establishes the jurisdiction of the inferior federal courts.
See , e.g. , Kline v. Burke Constr. Co. , 260 U.S. 226, 233-34 (1922);
Sheldon v. Sill , 49 U.S. (8 How.) 441, 448 (1850).
IV.
A.
The Constitution ordains that "Congress shall make no law . . .
abridging the freedom of speech." U.S. Const. amend I. Plaintiffs
claim that the Access Act abridges this freedom.
We begin our consideration of plaintiffs' freedom of speech claims
by repeating the elements of a basic offense under the Act. A violator
must (1) "by force or threat of force or by physical obstruction," (2)
"intentionally injure[ ], intimidate[ ], or interfere[ ] . . . with any per-
son," (3) "because that person [the victim] is . . . obtaining or provid-
ing reproductive health services." Act, § 3(a).
The government's first defense is that the Act does not implicate
the First Amendment at all; rather, it regulates conduct that is outside
the First Amendment. According to the government, the Act leaves
plaintiffs free to engage in any form of protected speech they choose.
In many respects the government is correct. The Access Act does
not prohibit protestors from praying, chanting, counseling, carrying
signs, distributing handbills or otherwise expressing opposition to
abortion, so long as these activities are carried out in a non-violent,
non-obstructive manner. What the Act does prohibit is force, the
threat of force and physical obstruction intended to deprive someone
of the lawful right to use or provide reproductive health services.
The use of force or violence is outside the scope of First Amend-
ment protection. Wisconsin v. Mitchell , 113 S. Ct. 2194, 2199 (1993)
("a physical assault is not by any stretch of the imagination expressive
conduct protected by the First Amendment"). True threats of force
also lie outside the First Amendment.
Watts v. United States
,
394 U.S.
705, 707
guished from what is constitutionally protected speech"); see R.A.V.
v. City of St. Paul , 112 S. Ct. 2538, 2546-47 (1992). Finally, certain
physical obstructions, such as a blockade of pedestrian traffic, are not
protected by the First Amendment.
See Cameron v. Johnson
,
390 U.S.
611, 617
interference with access to a courthouse was a "valid law . . . and the
fact that free speech is intermingled with such conduct does not bring
with it constitutional protection").
Thus, the Act does target unprotected activities. But the Act cannot
escape First Amendment scrutiny entirely. The Act might incidentally
affect some conduct with protected expressive elements, such as
peaceful but obstructive picketing. The right to peaceful protest lies
near the heart of the freedom of speech. Accordingly, we examine the
Act under the First Amendment.
B.
The first step in our First Amendment inquiry is to determine
whether the Act is content and viewpoint neutral. Plaintiffs argue that
the Act is a content- or viewpoint-based restriction because it outlaws
conduct for its anti-abortion message. If plaintiffs are correct, then we
subject the Act to strict scrutiny. To pass this test a law must be nec-
essary to serve compelling governmental interests by the least restric-
tive means available. See , e.g. , R.A.V. , 112 S. Ct. at 2549-50 (1992);
Burson v. Freeman , 112 S. Ct. 1846, 1851 (1992) (plurality). If plain-
tiffs are incorrect, if the Act is content and viewpoint neutral, then we
subject it to intermediate scrutiny. To pass this test a law must be nar-
rowly tailored to serve substantial governmental interests. See , e.g. ,
Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989); Clark v.
Community for Creative Non-Violence , 468 U.S. 288, 293 (1984).
The neutrality inquiry does not focus on the motive of the violator.
Rather, a statute regulating expressive conduct is neutral if it is justi-
fied without reference to the content of the violator's message or
point of view. Madsen v. Women's Health Center, Inc. , 114 S. Ct.
2516, 2523-24 (1994); Ward , 491 U.S. at 791 . Congress's purpose is
the main consideration. Id.
The Access Act identifies its purpose in plain language:
the purpose of this Act [is] to protect and promote public
safety and health and activities affecting interstate com-
merce 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 reproduc-
tive health services.
Act, § 2. The Act also includes 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 Constitu-
tion;
(2) to create any new remedies for interference with activi-
ties 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 . . . .
Act, § 3(d). Together, the Act's statement of purpose and rules of
construction indicate that the Act was not passed to outlaw conduct
because it expresses an idea. Instead, Congress passed the Act to pro-
mote public safety and health and to protect interstate commerce from
disruption.
Plaintiffs insist that these lofty statements of purpose and construc-
tion are subterfuge. They say Congress really intended to "suppress
only the anti-abortion side of a fierce national debate." Brief for
Appellants at 8. This argument ignores the Act's substantive provi-
sions. These unambiguous provisions do not target any message based
on content or viewpoint.
The Act protects reproductive health services and those who use
and provide them. Reproductive health services embrace "medical,
surgical, counseling, or referral services relating to the human repro-
ductive system." Act, § 3(e). The Act thus protects access to all repro-
ductive health services, including both abortion and services
connected with carrying a fetus to term. It applies, for example, to
facilities opposing abortion and to facilities offering pregnant women
counseling about alternatives to abortion. For example, AAA Women
for Choice, Inc., a facility run by plaintiff Patricia Lohman, would be
protected. AAA Women for Choice offers "counsel, comfort and
alternatives other than abortion to pregnant women." Second
Amended Complaint at ¶ 6.
Moreover, the Act punishes anyone who engages in the prohibited
conduct. For example, anyone who, with the requisite intent, blocks
a person from entering a facility to obtain or provide reproductive
health services violates the Act. The viewpoint of the obstructer is
irrelevant. The Act forbids the obstructive conduct not because of the
content of any message that conduct might convey, but because of its
harmful effects.
Plaintiffs press on and say that the Act's apparent neutrality is not
enough. They charge that the inclusion of protection for anti-abortion
services is a ruse to make the Act look neutral. In reality, they argue,
the Act aims to suppress the anti-abortion movement. They note that
one is a wrongdoer under the Act only when he commits the pro-
scribed conduct because the victim is obtaining or providing repro-
ductive health services. The "because" element is the Act's Achilles's
heel, according to plaintiffs. They say only people who oppose abor-
tion will be punished under the Act; those who protest at reproductive
health facilities for reasons unrelated to the abortion issue will never
violate the law. As examples, plaintiffs say those protesting at clinics
on labor and environmental issues would not violate the Act. On this
basis plaintiffs conclude that the Act is aimed at their motives for pro-
testing and thus at their message and its viewpoint.
This lack-of-neutrality argument overlooks the distinction between
what the Act does and does not regulate. Again, the Act does not pro-
hibit peaceful protestors from praying, chanting, counseling, carrying
signs, distributing handbills, or otherwise expressing their opposition
to abortion. What the Act does prohibit is force, the threat of force,
and physical obstruction, when carried out because a person is using
or providing reproductive health services. The "because" or motive
element does not render the Act content or viewpoint based. As we
explain below, the Act's motive requirement simply narrows its
reach, and this narrowing is within congressional prerogative.
In Wisconsin v. Mitchell , 113 S. Ct. 2194 (1993), the Supreme
Court upheld a Wisconsin law that enhanced the sentence for the
crime of aggravated battery when the defendant intentionally selected
his victim because of the victim's race. Just like plaintiffs here, the
defendant argued that he was being punished for his motive for act-
ing. The unanimous Supreme Court rejected that argument, saying
"[m]otive plays the same role under the Wisconsin statute as it does
under the federal and state anti-discrimination laws, which we have
previously upheld against constitutional challenge." Id. at 2200. The
Court reasoned that "the penalty-enhancement statute [was] aimed at
conduct unprotected by the First Amendment." Id. at 2201. Thus,
Wisconsin's statute did not target conduct on the basis of its expres-
sive elements. Mitchell 's conclusion was consistent with the Supreme
Court's prior recognition that "where government does not target con-
duct on the basis of its expressive content, acts are not shielded from
regulation merely because they express a discriminatory idea or phi-
losophy." R.A.V. v. City of St. Paul , 112 S. Ct. 2538, 2546-47 (1992).
As the Supreme Court observed in both Mitchell and R.A.V. , the
distinction between targeting the expressive elements of conduct and
targeting the proscribable elements of conduct undergirds many fed-
eral laws. For example, Title VII includes a motive requirement. Title
VII makes it unlawful for an employer to discriminate against an
employee " because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The
Supreme Court has held that Title VII does not infringe an employer's
First Amendment rights. Hishon v. King & Spalding , 467 U.S. 69, 78
(1984). Another example is a provision in the Fair Housing Act that
prohibits using force or the threat of force to injure, intimidate, or
interfere with a person " because " he is participating in certain housing
programs. 42 U.S.C. § 3631 (emphasis added). That provision,
despite its motive requirement, has been upheld as a content- and
viewpoint-neutral regulation. United States v. Hayward , 6 F.3d 1241,
1249-51 (7th Cir. 1993), cert. denied , 114 S. Ct. 1369 (1994); United
States v. Gilbert
, 813 F.2d 1523, 1529-31 (9th Cir.),
cert. denied
,
484
U.S. 860
Thus, Congress may enact laws to punish proscribable conduct
even though the conduct is motivated by certain biases or beliefs.
More important for this case, Congress can exercise its prerogative to
single out and address "conduct thought to inflict greater individual
and societal harm" by using a motive requirement to narrow the reach
of a law. Mitchell , 113 S. Ct. at 2201; see FCC v. Beach Communica-
tions, Inc. , 113 S. Ct. 2096, 2102-03 (1993). Indeed, in passing the
Access Act Congress determined that intentional interference with
access to reproductive health services is more damaging to federal
interests than activity that affects such access only incidentally, e.g. ,
labor or environmental protesting. We repeat, Congress may choose
to legislate only against actions it considers to be more serious. More-
over, a statute is not rendered non-neutral simply because one
ideologically defined group is more likely to engage in the proscribed
conduct. See United States v. O'Brien , 391 U.S. 367 (1968) (uphold-
ing a statutory prohibition on burning draft cards despite the fact that
most violators would likely oppose the Vietnam War).
For these reasons, we find that the Access Act is content and view-
point neutral. The Act is justified without reference to the violator's
viewpoint or the content of his message. Therefore, we subject the
Act to intermediate scrutiny.
C.
Intermediate scrutiny is required when a statute potentially regu-
lates conduct that has protected expressive elements. The intermediate
scrutiny test was first enunciated by the Supreme Court in O'Brien .
O'Brien was convicted under a federal statute which made it a
crime to destroy a draft card knowingly. In the Supreme Court
O'Brien argued that his "act of burning his [draft card] was protected
´symbolic speech' within the First Amendment."
O'Brien
,
391 U.S.
at 376
gress could regulate conduct that has an expressive element, given
sufficient justification:
even on the assumption that the alleged communicative ele-
ment in O'Brien's conduct is sufficient to bring into play the
First Amendment, it does not necessarily follow that the
destruction of a [draft card] is constitutionally protected
activity. This Court has held that when "speech" and "non-
speech" elements are combined in the same course of con-
duct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limi-
tations on First Amendment freedoms.
Id. The Court then laid down a test for reviewing a statute, such as
the Access Act, that may incidentally affect speech as it regulates
conduct. Under O'Brien 's test such a statute passes constitutional
muster "if it [1] furthers an important or substantial governmental
interest; if [2] the governmental interest is unrelated to the suppres-
sion of free expression; and if [3] the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the fur-
therance of that interest." Id. at 377.
1.
O'Brien 's first prong asks whether the Act furthers important or
substantial government interests. For easier discussion we group the
several interests suggested by the government.
One group relates to protecting public health, safety and com-
merce. This interest includes protecting patients and staff from vio-
lence and harm and protecting reproductive health facilities from
physical destruction or damage. It also includes protecting interstate
patient traffic and the interstate market for the services of doctors,
nurses, counselors, and other staff.
A second group of interests relates to protecting women and men
from violence and threats in the exercise of their rights. The Supreme
Court has recognized that government "has a strong interest in pro-
tecting a woman's freedom to seek lawful medical or counseling ser-
vices in connection with her pregnancy." Madsen v. Women's Health
Center, Inc. , 114 S. Ct. 2516, 2526 (1994). This freedom includes the
constitutional right to terminate a pregnancy.
See Roe v. Wade
,
410
U.S. 113
(1992). Also, both women and men have the constitutional right to
obtain and use contraceptives.
See Eisenstadt v. Baird
,
405 U.S. 438,
440
use reproductive health facilities to exercise this right.
Together, or separately, these interests are significant. The govern-
ment has a substantial interest in acting to protect them, as Congress
did by passing the Access Act.
2.
O'Brien next asks whether the government's interests relate to sup-
pressing free expression. This analysis is essentially the same as the
content- and viewpoint-neutrality test we applied earlier. See IV.B.,
supra . We concluded that the Act was justified without reference to
the message or viewpoint of anyone who might violate it. Relying on
the Act's plain language, we also noted that its purpose was not
related to suppressing expression. Instead, we found that the Act out-
lawed certain actions because of their harmful effects. We next
rejected plaintiffs' contention that the Act's avowed purpose shrouded
an illicit purpose. We believe this analysis is sufficient for the Act to
pass the second prong of the O'Brien test. 3
3.
Under O'Brien 's third prong we consider whether the incidental
restriction on alleged First Amendment freedoms is no greater than
required to meet the government's interests. This has been interpreted
as a requirement for "narrow tailoring." Ward v. Rock Against
Racism , 491 U.S. 781, 799 (1989). The statute must not "burden sub-
stantially more speech than is necessary to further the government's
legitimate interests." Id.
The Act meets this standard. Much of the conduct (force and vio-
lence) outlawed under the Act lacks any protected expressive element
at all. Of course, peaceful but obstructive protesting, which plaintiffs
argue has expressive elements, could run afoul of the Act. For ex-
ample, protesters blocking a clinic door as they pray might violate the
Act's prohibition on physical obstruction. However, such a violation
would be simply a consequence of the government's lawful aim to
protect access to reproductive health services. And the Act proscribes
no more expressive conduct than necessary to protect safe and reliable
access to reproductive health services. After all, the Act leaves open
ample alternative means for communication. In a non-violent, non-
obstructive manner, protestors may still stand outside reproductive
health facilities and express their anti-abortion message. They may
still proclaim their views and make their pleas by voice, signs, hand-
bills, symbolic gestures and other expressive means. 4
4.
In sum, the Access Act serves substantial government interests
such as preventing violence, preserving public access to reproductive
health services, and protecting citizens in their exercise of constitu-
tional rights. It is not aimed at expression, and it is narrowly tailored.
It passes O'Brien 's test.
D.
Plaintiffs next assert that the Act is unconstitutionally overbroad
and vague. They claim that "[t]housands of persons who daily engage
in peaceful activities around abortion clinics now risk arrest [and]
prosecution" for exercising their First Amendment rights. Brief for
Appellants at 29. They specifically point to "sign-carrying . . . and
rosary-carrying processions outside clinics." Id. at 28. Plaintiffs' argu-
ment is this: the Act's alleged overbreadth and vagueness will have
a "chilling effect" on such activities.
As for overbreadth, "[o]nly a statute that is substantially overbroad
may be invalidated on its face." Houston v. Hill , 482 U.S. 451, 458
(1987) (citations omitted). Such an invalid statute proscribes so much
protected speech that it must be struck down entirely. Accordingly,
the overbreadth doctrine is "strong medicine" to be applied "sparingly
and only as a last resort." Broadrick v. Oklahoma , 413 U.S. 601, 613
(1973). Even though the Act might be applied to some protected
expression, such as peaceful picketing, that picketing would be pro-
hibited only in the most narrow and justifiable circumstances. Under
the Act, "physical obstruction" involves intentionally "rendering
impassable ingress or egress from a facility . . . or rendering passage
to or from such a facility . . . unreasonably difficult or hazardous."
Act, § 3(e)(4). Thus, it is difficult to see how the Act is substantially
overbroad in relation to its legitimate scope of outlawing violence and
barriers to access.
The vagueness doctrine is concerned with clarity. A statute is
unconstitutionally vague if it does not give a "person of ordinary
intelligence a reasonable opportunity to know what is prohibited
. . . ." Grayned v. City of Rockford , 408 U.S. 104, 108 (1972). The
vagueness doctrine protects both free speech and due process values.
The Access Act's anti-obstruction provisions closely resemble a
statute the Supreme Court upheld against a vagueness challenge in
Cameron v. Johnson , 390 U.S. 611 (1968). In Cameron arrested civil
rights protestors challenged Mississippi's Anti-Picketing Law, which
provided:
1. It shall be unlawful for any person, singly or in con-
cert with others, to engage in picketing or mass demonstra-
tions in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from any public
premises . . . .
Id. at 613. The Supreme Court rejected the vagueness challenge on
the grounds that the terms "obstruct," "unreasonably" and "interfere
with" were perfectly clear, widely used, and well understood. Accord-
ing to the Court, the statute "precisely delineates its reach in words
of common understanding." Id. at 616.
Like the Anti-Picketing Law upheld in Cameron , the Act here
speaks in clear, common words. Moreover, the Act goes beyond the
statute in Cameron by defining many of its terms. The Act defines
"interfere with" to mean "restrict a person's freedom of movement."
Act, § 3(e)(2). It defines "intimidate" to mean "place a person in rea-
sonable apprehension of bodily harm . . . . " Act, § 3(e)(3). These and
other narrowing definitions in the Act should inform those opposed
to abortion that they will not offend this law by peaceful, non-
obstructive picketing.
We conclude that the Access Act is neither overbroad nor vague.
E.
Plaintiffs' final freedom of expression challenge to the Access Act
concerns a civil damage provision. The Act authorizes injured persons
to file private actions, and it permits them to elect to recover $5,000
per violation in lieu of actual damages. Act, § 3(c). Plaintiffs claim
that this damage provision is unconstitutional under NAACP v. Clai-
borne Hardware Co. , 458 U.S. 886 (1982).
Specifically, plaintiffs say that under Claiborne Hardware only
actual damages caused by unprotected conduct may be recovered. But
that is not what Claiborne Hardware says. Claiborne Hardware
involved a money judgment imposing joint and several liability
against ninety-two participants in a mass boycott of white-owned
businesses. The Supreme Court addressed whether all members of the
group could be held liable for the violent acts of a few. "Civil liability
may not be imposed merely because an individual belonged to a
group," the Court said. Id. at 920. The Court did not consider what
the constitutional measure of damages might be after a defendant was
found liable for an unprotected act.
The Act here does not subject anyone to damages caused by pro-
tected expression. It does subject violators to limited liquidated dam-
ages for unprotected conduct. We know of no rule prohibiting a
liquidated damages provision that may in a particular case impose
more than actual damages for unprotected activity. 5
V.
Plaintiffs' last claims concern protections afforded religion. Specif-
ically, they argue that the Access Act offends the First Amendment's
Free Exercise Clause and the Religious Freedom Restoration Act of
1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4.
A.
The Free Exercise Clause provides that "Congress shall make no
law . . . prohibiting the free exercise" of religion. U.S. Const. amend.
I. The clause forbids government from adopting laws designed to sup-
press religious belief or practice. Church of Lukumi Babalu Aye, Inc.
v. Hialeah , 113 S. Ct. 2217, 2222 (1993). However, a neutral, gener-
ally applicable law does not offend the Free Exercise Clause, even if
the law has an incidental effect on religious practice. Employment
Div., Dept. of Human Resources v. Smith , 494 U.S. 872, 878-79
(1990).
Relying on Church of Lukumi Babalu Aye , plaintiffs claim that the
Access Act violates the Free Exercise Clause. They say it aims to
restrict nonviolent protest because of the protestors' religious motiva-
tion. In Church of Lukumi Babalu Aye the Supreme Court examined
city ordinances aimed at suppressing the Santeria religion. The ordi-
nances prohibited ritual animal slaughter, a Santeria religious prac-
tice. The ordinances carefully outlawed only animal sacrifice and the
possession of animals for sacrificial purposes. They did not outlaw
hunting, fishing, or the killing of animals for food. In short, the ordi-
nances accomplished a religious gerrymander. They singled out reli-
gious practices for discriminatory treatment. The Supreme Court
subjected the ordinances to the same level of exacting (strict) scrutiny
it applies to content-based restrictions on speech. Church of Lukumi
Babalu Aye , 113 S. Ct. at 2233-34. The ordinances were held uncon-
stitutional.
By contrast, the Access Act punishes conduct for the harm it
causes, not because the conduct is religiously motivated. See IV.B.,
supra . By necessity, then, the Act does not punish religious belief. It
proscribes violent, forceful or threatening conduct without regard to
expressive content or viewpoint. See IV.B., supra . Under the Act it
makes no difference whether a violator acts on the basis of religious
conviction or temporal views. The same conduct is outlawed for all.
Therefore, the Act is a generally applicable law, neutral toward reli-
gion. It does not offend the First Amendment's Free Exercise Clause.
B.
The Religious Freedom Restoration Act (RFRA) mandates that
government shall not "substantially burden a person's exercise of reli-
gion" unless the government demonstrates that the burden furthers a
"compelling governmental interest" by the "least restrictive means."
42 U.S.C. § 2000bb-1.
The Access Act and RFRA were passed by the same Congress, but
RFRA was passed first. RFRA's rule of construction says that federal
statutes enacted after RFRA are subject to its provisions unless the
later statute "explicitly excludes [RFRA's] application by reference to
[the RFRA statute]." Id. at § 2000bb-3(b). The Access Act does not
exclude RFRA's application, so we examine plaintiffs' claim that the
Access Act violates RFRA.
The threshold inquiry under RFRA concerns burden. If a statute
does not substantially burden a religious practice, then the statute
does not implicate RFRA.
Plaintiffs' complaint alleges that they do not "condone . . . non-
peaceable or violent conduct." Accordingly, a proscription on vio-
lence and force cannot substantially burden their religious exercise.
However, plaintiffs' complaint also alleges that their opposition to
abortion (on religious grounds) requires them to obstruct physically,
through peaceful picketing, access to clinics offering abortion ser-
vices. We will assume that this allegation, coupled with plaintiffs'
assertion that the Access Act violates their RFRA rights, satisfies
their obligation to plead a substantial burden on their religious exer-
cise. See Fed. R. Civ. P. 8. This requires us to move to RFRA's next
level: an examination of whether the alleged substantial burden
imposed by the Access Act furthers a "compelling governmental
interest" by the "least restrictive means" available.
We begin with some background. Congress passed RFRA as a
response to Employment Div., Dep't of Human Resources v. Smith ,
494 U.S. 872 (1989). The "findings" section of RFRA states that
Smith "virtually eliminated the requirement that government justify
burdens on religious exercise imposed by laws neutral toward reli-
gion." 42 U.S.C. § 2000bb(a). The "purpose" section adds that RFRA
aims "to restore the compelling interest test as set forth in Sherbert
v. Verner , 374 U.S. 398 (1963), and Wisconsin v. Yoder , 406 U.S. 205
(1972)." Id. at § 2000bb(b). 6
In Sherbert South Carolina denied unemployment benefits to a
Seventh-day Adventist fired for refusing to work on her Sabbath. The
Supreme Court reversed. It found uncompelling South Carolina's
asserted interest in deterring "unscrupulous claimants feigning reli-
gious objections to Saturday work." Sherbert , 374 U.S. at 407 . In
Yoder Wisconsin convicted three Amish parents for refusing to send
their children to school beyond the eighth grade. Wisconsin's highest
court reversed the convictions, and that result stood in the United
States Supreme Court. Wisconsin's asserted interest of preparing self-
reliant citizens for participation in society was rejected as uncompel-
ling by the Supreme Court. The Amish had introduced convincing
evidence that accommodating their religious objections by excusing
a year or two of compulsory schooling would not impair the physical
or mental health of the children or undermine their ability to be self-
supporting and good citizens. Yoder , 406 U.S. at 221 -29. In both
Sherbert and Yoder the Supreme Court carefully distinguished cases
involving the government's paramount interest in protecting physical
or mental health, public safety, or public welfare.
Sherbert
,
374 U.S.
at 403
gious accommodation could be denied when the accommodation, by
allowing non-uniform treatment, presented a problem of sufficient
magnitude to render a statutory scheme unworkable.
Sherbert
,
374
U.S. at 408
In Free Exercise Clause decisions cited by or following Sherbert ,
the Supreme Court has recognized these compelling governmental
interests in a variety of situations. For instance, the Court found the
need for uniformity paramount in a case requiring an Amish employer
to pay Social Security taxes for Amish employees, United States v.
Lee , 455 U.S. 252, 258-59 (1982), and in a case denying Jewish ser-
vicemen the right to wear a yarmulke,
Goldman v. Weinberger
,
475
U.S. 503, 508-510
case enforcing the draft against persons who considered a particular
war "unjust," Gillette v. United States , 401 U.S. 437, 462 (1971), and
in a case denying tax exemptions to educational institutions with
racially discriminatory policies, Bob Jones University v. United
States , 461 U.S. 574, 604 (1983). The Court found the public health
and safety interest decisive in upholding mandatory vaccination,
Jacobson v. Massachusetts , 197 U.S. 11 (1905), 7 and in enforcing
child labor laws, Prince v. Massachusetts , 321 U.S. 158, 168-70
(1944) (finding that a state's interest in protecting health justified pro-
hibiting a nine-year-old Jehovah's Witness from distributing religious
literature).
Finally, we do not think the Free Exercise Clause shields conduct
violating a criminal law that protects people and property from physi-
cal harm. Cf. Reynolds v. United States , 98 U.S. (8 Otto) 145, 166
(1878) (posing the following rhetorical question: "[s]uppose one
believed that human sacrifices were a necessary part of religious wor-
ship, would it be seriously contended that the civil government under
which he lived could not interfere to prevent a sacrifice?").
With this background in mind we measure the Access Act against
RFRA. First, we believe the Access Act serves sufficiently com-
pelling governmental interests. After all, the Act protects public
health by promoting unobstructed access to reproductive health facili-
ties. It also protects public safety by proscribing all violent, threaten-
ing or obstructive conduct specifically aimed at patients and providers
of reproductive health services.
Second, we believe the Access Act is sufficiently narrow. The
Act's prohibitions are directed only to those actions Congress found
to be a national problem, specifically force, threat of force and physi-
cal obstruction. The Act does not sweep within its prohibitions activ-
ity unrelated to the serious trouble Congress sought to address.
We conclude that the Access Act serves sufficiently compelling
government interests by the least restrictive means available. It there-
fore does not violate RFRA.
VI.
"There are manifold restraints to which every person is necessarily
subject for the common good. On any other basis organized society
could not exist with safety to its members." Jacobson v.
Massachusetts , 197 U.S. 11, 26 (1905) (Harlan, J.). In passing the
Access Act, Congress acted to ensure that violence and aggressive
obstruction are not used as means of settling what has become a loud
and vexing public dispute.
The Access Act strikes a balance among competing rights holders.
It protects those who seek or provide reproductive health services
without suppressing robust debate about abortion. Those opposed to
abortion or to any other reproductive health service retain the freedom
to express their deeply-held moral or religious views in a peaceful,
non-obstructive way.
The district court's order dismissing the complaint is affirmed.
AFFIRMED
lawfully exercising or seeking to exercise the right of religious freedom
at a place of religious worship or (ii) the property of a place of religious
worship. Act, § 3(a). Those portions of the Act are not at issue in this
case.
threat of force [to] willfully injure[ ], intimidate[ ], or interfere[ ] with
. . . any person because " that person is voting or working for the federal
government) (emphasis added); and 42 U.S.C. § 1971(b) (Voting Rights
Act) (providing that no person "shall intimidate, threaten, [or] coerce
. . . for the purpose of interfering with" a person's right to vote) (empha-
sis added).
that "the national campaign of violent and obstructive pro-life protests
was the catalyst that led to passage of the Act." Brief for Appellee United
States at 22 n.7. This acknowledgment does not mean that Congress
acted to curb protected expression. Protecting reproductive health facili-
ties, patients, and providers is a legal purpose, unrelated to suppressing
free expression.
the reasoning that compels us not to apply the overbreadth doctrine. See
IV.D., infra .
per violation is not at issue here.
Smith when applying the statute's compelling interest standard. See 42
U.S.C. § 2000bb(a)(5) (finding that the "compelling interest test as set
forth in prior Federal court rulings [prior to Smith ] is a workable test");
S. Rep. 111, 103d Cong. 1st. Sess. 8 reprinted in 1993 U.S.C.C.A.N.
1892, 1898 (noting that the "committee expects that courts will look to
free exercise cases decided prior to Smith for guidance"); id. at 9 (stating
that "the compelling interest generally should not be construed more
stringently or more leniently than it was prior to Smith ") (footnote omit-
ted).
however, discuss fundamental "liberty" interests. 197 U.S. at 26 -27 and
38-39. Sherbert , 374 U.S. at 403 , and Yoder , 406 U.S. at 230 , construe
Jacobson as a health and safety case.