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