- REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-20792

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK LAFAYETTE BIRD,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

________________________________________________

September 24, 1997

Before GARWOOD, DAVIS and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant, an abortion protester, appeals his conviction for

violating the Freedom of Access to Clinic Entrances Act. He

challenges the authority of the Congress to enact a statute under

the Commerce Clause that proscribes intrastate, noncommercial

activity and he raises First Amendment challenges to the scope of

the Act and to the terms of his supervised release. Because we

find that there was a sufficient basis for the Congress to have

determined that the activity proscribed by the Act, though

intrastate, could have a substantial affect on the congressionallyrecognized national market for abortion-related services, and
2

because we find that the Act, as applied, is neither unduly vague

nor overbroad, we affirm the judgment of the district court. We

also find that the district court did not abuse its discretion when

it set the terms of appellant’s supervised release.

Facts and Proceedings Below

The facts are few and undisputed. On December 13, 1994,

appellant Frank Bird (Bird), while protesting outside the America’s

Women Clinic in Houston, Texas, threw a bottle at a car driven by

Dr. Theodore Herring (Herring), an abortion provider, as he

attempted to enter the clinic premises. As Bird threw the bottle,

he yelled, “Herring, I’m going to get you. I’m going to kill you.”

Although Dr. Herring was not physically injured, the bottle

shattered the windshield of his car. Employees of the clinic

subsequently called the police, who arrived at the scene and

arrested Bird.

On March 29, 1995, Bird was charged in a one-count indictment

with violating 18 U.S.C. § 248(a)(1), the provision of the Freedom

of Access to Clinic Entrances Act (FACE or the Act) that

criminalizes certain threats and intimidation directed at providers

of abortion services.

The case was tried on June 12, 1995. The jury returned a

guilty verdict the same day. On September 14, 1995, the district

court sentenced Bird to imprisonment for one year followed by one

year of supervised release with the special condition that he stay

at least one thousand feet from any abortion clinic, specifically

the America’s Women Clinic in Houston. The district court also
3

ordered Bird to pay $820.67 in restitution and ordered an

assessment of $50.

Bird filed a timely notice of appeal. Although Bird

challenges the constitutionality of the Act, he does not otherwise

contest his guilt under the statutory scheme. He also objects to

the wording of the district court’s judgment and the terms of his

supervised release. We affirm.

Discussion

Some four years ago, this Court, emphasizing the

Constitution’s establishment of a national government of limited

and enumerated powers——in which the powers of the federal government

were designed to be “‘few and defined’”——held that Congress, by

enacting a statute making it a federal crime to possess a firearm

in a school zone, had exceeded its authority under the Commerce

Clause. United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993)

(quoting The Federalist No. 45, at 292 (C. Rossiter ed. 1961),

aff’d, 115 S.Ct. 1624 (1995). This case calls on us to visit again

the issue of Congress’s authority to regulate intrastate activity

pursuant to its Commerce Clause authority, this time aided by more

recent clarifying Supreme Court authority. As with any challenge

to the constitutional validity of an act duly passed by Congress,

we approach our task knowing that it is both “the gravest and most

delicate duty that this Court is called on to perform,” Blodgett v.

Holden, 48 S.Ct. 105, 107 (1927) (Opinion of Holmes, J.), and that

it “forms one of the most powerful barriers which has ever been

devised against the tyranny of political assemblies,” Alexis de
1 The Act defines several of its terms. “Facility” is defined

to include “a hospital, clinic, physician’s office, or other

facility that provides reproductive health services, and includes

the building or structure in which the facility is located.” 18

U.S.C. § 248(e)(1). “Interfere with” means “to restrict a person’s

freedom of movement.” Id. § 248(e)(2). “Intimidate” means “to

place a person in reasonable apprehension of bodily harm to him- or

herself or to another.” Id. § 248(e)(3). “Physical obstruction”

means “rendering impassable ingress to or egress from a facility

that provides reproductive health services . . . or rendering

passage to or from such a facility . . . unreasonably difficult or

hazardous.” Id. § 248(e)(4). “Reproductive health services” means

“reproductive health services provided in a hospital, clinic,

physician’s office, or other facility, and includes medical,

surgical, counseling or referral services relating to the human

4

Tocqueville, Democracy in America 76 (1956, Richard D. Heffner

ed.).

In 1994, reacting to a perceived nationwide problem of violent

protests and blockades directed at both providers and recipients of

abortion services, Congress enacted the Freedom of Access to Clinic

Entrances Act, an act making it a federal crime to engage in

certain prohibited activities interfering with the provision or

obtainment of “reproductive health services.” Specifically, the

Act provides:

“(a) Prohibited activities.--Whoever--

(1) by force or threat of force or by physical

obstruction, intentionally injures, intimidates or

interferes with or attempts to injure, intimidate

or interfere with any person because that person is

or has been, or in order to intimidate such person

or any other person or any class of persons from,

obtaining or providing reproductive health

services;

. . . . 

shall be subject to the penalties provided in subsection

(b) and the civil remedies provided in subsection (c),

except that a parent or legal guardian of a minor shall

not be subject to any penalties or civil remedies under

this section for such activities insofar as they are

directed exclusively at that minor.” 18 U.S.C. §

248(a)(1) (West Supp. 1997).1
reproductive system, including services relating to pregnancy or

the termination of a pregnancy.” Id. § 248(e)(5). 

Criminal penalties under the Act depend upon whether the

offense involved violence and upon whether the offender has

previously violated the Act. Id. § 248(b).

2 “2. FINDINGS AND PURPOSE

The Senate Bill, but not the House Amendment,

contains a Congressional Statement of Findings and

Purpose.

The House recedes with an amendment. The amendment

deletes the Findings but incorporates a portion of them

in the Purpose section. The Conferees note that Congress

has found:

(1) An interstate campaign of violent, threatening,

obstructive and destructive conduct aimed at providers of

reproductive health services across the nation has

injured providers of such services and their patients,

and the extent and interstate nature of this conduct

place it beyond the ability of any single state or local

jurisdiction to control;

(2) Such conduct, which has included blockades and

invasions of medical facilities, arson and other

destruction of property, assaults, death threats,

attempted murder and murder, infringes upon the exercise

of rights secured by federal and state law, both

statutory and constitutional;

(3) Such conduct also burdens interstate commerce

by forcing patients to travel from states where their

access to reproductive health services is obstructed to

5

The Act itself states that it was passed “[p]ursuant to the

affirmative power of Congress to enact . . . legislation under

section 8 of article I of the Constitution, as well as under

section 5 of the fourteenth amendment to the Constitution.”

Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-

259, § 2, 108 Stat. 694, 694. Although the Act itself does not

contain congressional findings, the “Joint Explanatory Statement of

the Committee of Conferees” to Senate Bill 636, which was

ultimately adopted as the Act, sets forth a number of relevant

findings.2
other states, and by interfering with the interstate

commercial activities of health care providers, including

the purchase and lease of facilities and equipment, sale

of goods and services, employment of personnel and

generation of income, and purchase of medicine, medical

supplies, surgical instruments and other supplies from

other states;

(4) Prior to the Supreme Court’s decision in Bray

v. Alexandria Women’s Health Clinic, 113 S.Ct. 753

(1993), the conduct described in paragraphs (1) through

(3) above was frequently enjoined by federal courts in

actions brought under 42 U.S.C. 1985(3), but in that case

the Court denied a remedy under such sections to persons

injured by the obstruction of access to abortion-related

services; and

(5) Violent, threatening, obstructive and

destructive conduct aimed at providers of reproductive

health services can be prohibited, and the right of

injured parties to seek redress in the courts can be

established, without abridging the exercise of any rights

guaranteed under the First Amendment to the Constitution

or under any other law.” H. Conf. Rep. No. 103-488, at

7-8 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724-25

(emphasis added).

S. 636, as passed by the Senate, contained additional, more

detailed findings that were ultimately not included in the

Conference Committee report, some of which are as follows:

“(8) the entities that provide pregnancy or abortionrelated services engage in commerce by purchasing and

leasing facilities and equipment, selling goods and

services, employing people, and generating income;

(9) such entities purchase medicine, medical supplies,

surgical instruments, and other supplies produced in

other States;

(10) violence, threats of violence, obstruction, and

property damage directed at abortion providers and

medical facilities have had the effect of restricting the

interstate movement of goods and people.” S. 636, 103d

Cong. §§ 8-10 (1993) (as engrossed).

6

I.

Bird makes a number of arguments challenging the

constitutionality of the Act. First, he argues that section

248(a)(1) was beyond the authority granted to Congress under either
3 “The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the several

States, and with the

Indian

Tribes.” U.S. Const., art. I, § 8, cl. 3.

4 

“Section 1. All Persons born or

naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

. . . . 

Section 5. The Congress shall have power

to enforce, by appropriate legislation, the

provisions of this article.” U.S. Const.

amend. XIV, §§ 1, 5.

7

the Commerce Clause3 or Section Five of the Fourteenth Amendment.4

Second, he argues that the Act is “invidiously discriminatory”

because it protects certain familial relationships and fails to

protect others. Third, he contends that the Act is

constitutionally overbroad. Finally, he challenges the Act on

vagueness grounds.

Five other circuits have addressed the constitutionality of

the Act, each finding it to be a legitimate exercise of Congress’s

authority under the Commerce Clause. Terry v. Reno, 101 F.3d 1412

(D.C. Cir. 1996), cert. denied, 117 S.Ct. 2431 (1997); United

States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 117

S.Ct. 613 (1996); United States v. Wilson, 73 F.3d 675 (7th Cir.
5 Cook v. Reno, 74 F.3d 97 (5th Cir. 1996), involved

an appeal from a dismissal of a request for a preliminary

injunction. Cook was remanded to the district court for

reconsideration of the plaintiffs’ standing. This Court

did not reach the merits of the constitutional challenge

to the Act.

8

1995), cert. denied, 117 S.Ct. 47 (1996); Cheffer v. Reno, 55 F.3d

1517 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d

642 (4th Cir.), cert. denied, 116 S.Ct. 55 (1995). The

constitutionality of the Act is a question of first impression in

this Circuit.5 Although we agree with their ultimate holdings, we

nevertheless set forth our reasoning, which differs in some

respects from that of our sister circuits.

A. Congress’s Commerce Clause Authority

Relying on United States v. Lopez, 115 S.Ct. 1624 (1995), Bird

argues that section 248(a)(1) criminalizes private, noneconomic

conduct that is neither commercial in nature nor “‘an essential

part of a larger regulation of economic activity.’” Accordingly,

because the Act lacks a jurisdictional element that would ensure

that each instance of proscribed activity had an effect on

interstate commerce, Bird contends that the Act “‘neither regulates

a commercial activity nor contains a requirement that the

[prohibited activity] be connected to interstate activity.’” Bird

further argues that the congressional findings set forth in the

Act’s legislative history are not relevant to our inquiry because

Congress cannot use findings that a noncommercial activity

“affected interstate commerce” to support a statute that regulates

intrastate conduct. Finally, Bird attacks the “regulatory means”
9

chosen by the Act as not “‘reasonably adapted to the end permitted

by the Constitution.’” In this regard, Bird contends that the

statutory definitions of “facility” and “reproductive health

services” sweep too broadly and exceed the reach of Congress’s

Commerce Clause authority.

The United States defends the Act as a proper exercise of

Congress’s authority under the Commerce Clause. First, also

relying on Lopez, 115 S.Ct. at 1629-30, the United States argues

that the Act is “a proper exercise of Congress’ power to ‘protect

. . . persons or things in interstate commerce.’” Second, the

government contends that the Act may be “sustained as an exercise

of Congress’ power to regulate ‘activities that substantially

affect interstate activity.’” The government emphasizes the

congressional findings that the proscribed activity “threatens in

the aggregate to eliminate abortion services from the national

commerce.” The government also maintains that no jurisdictional

element is required provided a criminal statute addresses a “class

of activity” that, in the aggregate, substantially affects

interstate commerce. Finally, the government argues that the

regulatory scheme adopted by the Act is reasonably adapted to a

permissible end.

The Supreme Court’s opinion in United States v. Lopez, 115

S.Ct. 1624, guides our inquiry. In Lopez, the Court set forth the

three areas of permissible congressional regulation pursuant to the

Commerce Clause. “First, Congress may regulate the use of channels

of interstate commerce.” Id. at 1629 (citing United States v.
10

Darby, 61 S.Ct. 451, 457 (1941); Heart of Atlanta Motel, Inc. v.

United States, 85 S.Ct. 348, 357 (1964)). “Second, Congress is

empowered to regulate and protect the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities.”

Id. (citing Shreveport Rate Cases, 34 S.Ct. 833 (1914); Southern

Ry. Co. v. United States, 32 S.Ct. 2 (1911); Perez v. United

States, 91 S.Ct. 1357, 1359 (1971)). “Finally, Congress’ commerce

authority includes the power to regulate those activities having a

substantial relation to interstate commerce, i.e., those activities

that substantially affect interstate commerce.” Id. (citing NLRB

v. Jones & Laughlin Steel Corp., 57 S.Ct. 615, 624 (1937); Maryland

v. Wirtz, 88 S.Ct. 2017, 2024 n.27 (1968)). Lopez did not set

forth the precise standard by which the federal judiciary shall

examine Congress’s legislative determination that a particular

statute has a nexus with interstate commerce under the third

category; rather, the Court emphasized that whether Congress had a

rational basis for determining that a regulated activity

“sufficiently affected interstate commerce” was “‘ultimately a

judicial rather than a legislative question.’” Id. at 1629 & n.2

(quoting Heart of Atlanta Motel, 85 S.Ct. at 366 (Black, J.,

concurring); Hodel v. Virginia Surface Mining & Reclamation Ass’n,

Inc., 101 S.Ct. 2352, 2391 (1981) (Rehnquist, J., concurring)

(“[S]imply because Congress may conclude that a particular activity

substantially affects interstate commerce does not necessarily make

it so.”)).
6 There is no congressional finding that federal

regulation of interstate violence or the like against

abortion clinics, providers, or patients can be

effectively accomplished only if intrastate conduct of

the same kind is also federally regulated; nor, so far as

we can asertain, was there any evidence to that effect

before Congress; and, we are not aware of anything which

would support such a conclusion. Cf. Lopez, 2 F.3d at

1351, 1367 n.51 (noting that federal regulation of

intrastate drug trafficking had been sustained on the

basis of congressional findings that the fungible and

11

1. Channels of Interstate Commerce

The first Lopez category of permissible interstate regulation,

involving regulation of the channels of interstate commerce, is

plainly not applicable to the Act. This category, as described in

Perez, 91 S.Ct. at 1359, reaches the “misuse” of the channels of

interstate commerce. Oft-cited examples include the transportation

or shipment of: stolen goods, 18 U.S.C. § 2314, et seq.; kidnaped

persons, 18 U.S.C. § 1201, et seq.; prostitutes, 18 U.S.C. § 2421;

and drugs, 21 U.S.C. § 841(a); see also United States v. Robertson,

115 S.Ct. 1732, 1733 (1995) (affirming federal RICO conviction

because gold mine was “engaged in commerce”); United States v.

Darby, 61 S.Ct. 451 (1941) (upholding the authority of Congress to

prohibit the interstate shipment of goods produced by workers whose

wages violated the Fair Labor Standards Act); The Lottery Case, 23

S.Ct. 321 (1903) (affirming conviction for interstate

transportation of foreign lottery tickets under the Federal Lottery

Act of 1895). Section 248(a) “is not a regulation of the use of

the channels of interstate commerce, nor is it an attempt to

prohibit the interstate transportation of a commodity through the

channels of commerce.” Lopez, 115 S.Ct. at 1630.6
untraceable characteristics of narcotis rendered such

regulation necessary to the effective regulation of

interstate trafficking).

12

2. Persons or Things in Interstate Commerce

The government argues that the Act falls within the second

category of permissible interstate regulation, specifically the

protection of persons or things in interstate commerce. The

government argues that Congress determined, through legislative

inquiry, that (1) doctors travel interstate to provide abortion

services, (2) patients travel interstate to receive abortion

services, and (3) clinics use medical supplies and equipment that

have traveled interstate.

We do not find the Act to be a valid exercise of Congress’s

Commerce Clause authority under the second Lopez category.

Although unquestionably many——perhaps most——abortion clinics employ

out-of-state doctors, serve out-of-state patients, and utilize

medical supplies and equipment that have traveled interstate, there

is no allegation or showing that, in the present case, America’s

Women Clinic ever employed physicians, treated patients, or used

supplies that so qualified. Congressional regulation or protection

of persons or things that move in interstate commerce must ensure

that, in fact, a particular “threat”——whether posed by an interstate

or intrastate activity——actually threatens persons or things with

a plain and clear nexus to interstate commerce. Of course, neither

medical doctors nor their patients are by their nature involved in

interstate commerce. Nor, for that matter, are medical supplies

inherently interstate commodities. In the absence of such a plain
13

and clear nexus, a statute must employ some mechanism to ensure the

federal regulation in fact regulates persons or things in

interstate commerce. Traditionally, this has been achieved by a

jurisdictional element or a statutory presumption. In this regard,

the Court in Lopez, 115 S.Ct. at 1629, cited federal statutes

criminalizing the destruction of aircraft employed in interstate

commerce, 18 U.S.C. § 32(a)(1) (criminalizing the destruction of

any aircraft “used, operated, or employed in interstate, overseas,

or foreign air commerce”), and theft from interstate commerce, 18

U.S.C. § 659 (criminalizing the theft of “any goods or chattels

moving as or which are a part of or which constitute an interstate

or foreign shipment”).

Congress did not set forth a jurisdictional element in section

248(a)(1). Even if there had been such a jurisdictional element,

or even if we were able to read the language of the Act to imply

such a requirement, United States v. Bass, 92 S.Ct. 515, 522-23

(1971) (requiring the government to demonstrate “the requisite

nexus with interstate commerce” for each element of a federal

firearm statute ambiguously containing the phrase “in commerce or

affecting commerce”), there was absolutely no allegation nor any

evidence produced at trial that America’s Women Clinic in Houston

employed out-of-state personnel, utilized out-of-state medical

supplies, or treated out-of-state patients. To the contrary, Dr.

Herring, the only witness, testified that he resided in Dallas,

Texas; he was never questioned concerning the supplies or equipment

used by the clinic, nor was he asked whether the clinic treated
14

patients from outside of the Houston area, let alone from outside

of Texas generally. No documentary evidence addressing the

interstate nature of the clinic’s business was produced by the

government at trial. Without evidence that America’s Women Clinic

used out-of-state staff or supplies, or that it provided abortion

services to out-of-state patients, it is difficult to see how

Bird’s actions had any affect on interstate commerce in medical

supplies, medical personnel, or the provision of medical services

to out-of-state patients.

Congress’s finding that “many of the patients who seek

services from [abortion providers] engage in interstate commerce by

traveling from one state to obtain [the abortion services] in

another,” S. Rep. No. 103-117, at 31; H. Conf. Rep. No. 103-488, at

7, and that physicians and other related medical personnel often

travel across state lines to provide abortion services, is not

sufficient to support section 248(a)(1) under this second Lopez

category. That “many,” “substantial numbers,” or “a majority” of

patients and doctors travel interstate to obtain or to provide

abortion services does not establish that this particular clinic

was ever so served or attended. Nor can the government’s citation

of cases involving specific, individualized findings relating to

other clinics in unrelated litigation involving a different statute

serve as a proxy for the individualized inquiry heretofore required

for each violation under this second Lopez category. See, e.g.,

Bray v. Alexandria Women’s Health Clinic, 113 S.Ct. 753, 782, 792

(1993) (Stevens, J., dissenting) (stating that between twenty and
7 There is no congressional finding, nor (so far as

we can ascertain) any evidence before Congress, that in

order to effectively protect from violence clinics,

providers, or patients which were in interstate commerce

it was necessary to also extend such protection to

clinics, providers, and patients having no connection to

interstate commerce, and we are not aware of anything

which would support such a conclusion.

15

thirty percent of patients at a targeted Virginia abortion clinic

were from outside Virginia and a majority at one of the Maryland

clinics were from outside Maryland); New York State N.O.W. v.

Terry, 886 F.2d 1339, 1360 (2d Cir. 1989) (“women referred by outof-state clinics often travel to New York City seeking its superior

medical services”), cert. denied, 110 S.Ct. 2206 (1990); Pro-Choice

Network v. Project Rescue, 799 F. Supp. 1417, 1430 (W.D.N.Y. 1992)

(“Plaintiffs’ health care facilities render services to patients

from other states, especially Pennsylvania[,] Ohio, and Canada”);

Lucero v. Operation Rescue, 772 F. Supp. 1193, 1195 (N.D. Ala.

1991) (finding 1.5% of patients resided outside of Alabama).7

3. Intrastate Activity that “Substantially Affects” Interstate

Activity

That the Act fails to qualify under the first two Lopez

categories of permissible Commerce Clause regulation is not

surprising in light of what appears to be Congress’s purpose to

reach the prohibited activity at as many abortion clinics as

possible. Indeed, the government concedes as much, emphasizing

that Congress has the authority to regulate intrastate activity

that, in the aggregate, has a substantial effect on interstate

commerce.

As a federal criminal statute regulating intrastate,
16

noncommercial conduct, section 248(a)(1) must be justified, if at

all, as “an essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut unless

the intrastate activity were regulated.” Lopez, 115 S.Ct. at 1631.

From the outset, we note, and reject, both the government’s and

Bird’s view of permissible congressional regulation in this Lopez

category. 

Bird insists that Lopez requires a statute regulating

intrastate activity pursuant to the Commerce Clause to contain a

jurisdictional element. Furthermore, Bird maintains that the

intrastate activity that may be regulated must, at a minimum, be

commercial. We do not read Lopez so broadly. First, though a

jurisdictional element may help to ensure that the exercise of

Congress’s Commerce Clause authority extends only to those

activities that substantially affect interstate commerce, it is

only one method, and not always a necessary one, by which Congress

may achieve that end. See, e.g., Terry, 101 F.3d at 1418 (“Lopez’s

fundamental proposition is that Congress must ensure that its

Commerce Clause power to regulate noncommercial activities extends

to only those activities that substantially affect interstate

commerce. Congress may do so either through its own legislative

findings or by including a jurisdictional element in the statute;

it need not do both.”); Wilson, 73 F.3d at 685 (“In discussing the

lack of a jurisdictional element in Lopez, the Court simply did not

state or imply that all criminal statutes must have such an

element, or that all statutes with such an element would be
8 In any event, jurisdictional elements do not

necessarily preclude “as-applied” Commerce Clause

challenges. See, e.g., United States v. Collins, 40 F.3d

95, 99-101 (5th Cir. 1994) (reversing Hobbs Act

conviction because of the “absence of evidence showing

some direct or substantial indirect effect on interstate

commerce”).

9 See also Russell v. United States, 105 S.Ct. 2455

(1985) (upholding the federal arson statute, 18 U.S.C. §

844(i), which criminalizes the destruction or attempted

destruction by arson of “property used in . . . any

activity affecting interstate or foreign commerce”);

United States v. Corona, 108 F.3d 565 (5th Cir. 1997)

(affirming a conviction under 18 U.S.C. § 844(i) for the

destruction of commercial property, but questioning

whether an unlimited “effects test” would permit the

“speculative” aggregation of negligible effects on

interstate commerce to support a conviction for the

burning of a private residence); Stirone v. United

17

constitutional, or that any statute without such an element is per

se unconstitutional.”).8 Second, the Court in Lopez did not

overrule——indeed, it expressly reaffirmed——the proposition set forth

in Wickard v. Filburn concerning congressional regulation of

intrastate, noncommercial activity:

“‘[E]ven if appellee’s activity be local and though it

may not be regarded as commerce, it may still, whatever

its nature, be reached by Congress if it exerts a

substantial economic effect on interstate commerce, and

this irrespective of whether such effect is what might at

some earlier time have been defined as “direct” or

“indirect.”’” Lopez, 115 S.Ct. at 1628 (quoting Wickard,

63 S.Ct. 82, 87 (1942)).

The Supreme Court reiterated that intrastate, noncommercial

activities can, in certain circumstances, substantially affect

interstate commerce when considered in the aggregate. After

Wickard——and its reaffirmance in Lopez——there can be no question

that Congress is able to regulate noncommercial, intrastate

activity that substantially affects interstate commerce,9 an
States, 80 S.Ct. 270 (1960) (upholding the Hobbs Act, 18

U.S.C. § 1951, which criminalizes certain noncommercial

activities that “affect[] commerce or the movement of any

article or commodity in commerce”); United States v.

Coleman, 78 F.3d 154, 158-60 (5th Cir.) (upholding the

federal car-jacking statute, 18 U.S.C. § 2119, which

criminalizes car jacking “a motor vehicle that has been

transported, shipped, or received in interstate or

foreign commerce”), cert. denied, 117 S.Ct. 230 (1996).

Cf. Katzenbach v. McClung, 85 S.Ct. 377 (1964), and Heart

of Atlanta Motel, Inc. v. United States, 85 S.Ct. 348

(1964) (upholding anti-discrimination in service

provisions of Title II of the Civil Rights Act of 1964 as

applied to restaurants and hotels engaged in interstate

commerce).

10 The Tenth Amendment contains no substantive

restriction on the legitimate exercise of Congress’s

Commerce Clause authority; that is, the boundaries of the

Commerce Clause power are not delineated by the Tenth

Amendment. But, the Tenth Amendment plainly does confirm

that the commerce power is not limitless, that hence such

boundaries do exist, and that they must not be

transgressed.

18

admittedly broad power not without danger to the federalism that is

the most fundamental postulate of our constitutional order.10 The

question remains in any given case, however, whether Congress’s

exercise of power in this manner is properly limited. It is the

government’s view of this limiting principle that we find flawed.

Under the government’s view, Congress need only identify a

broad “class of activities” and determine that, viewed in the

aggregate, the class “substantially affects” interstate commerce.

Of course, the only “limits” provided by such a construction as

thus stated are the depths of judicial imagination. The government

made a similar, unrestricted argument to justify the Gun Free

School Zones Act in Lopez. This Court characterized the

government’s version of the “class of activities” argument as
19

lacking a limiting feature such as the existence of a national

market:

“The government seeks to rely on the rule that ‘[w]here

the class of activities is regulated and that class is

within the reach of the federal power, the courts have no

power “to excise as trivial, individual instances” of the

class.’ This theory has generally been applied to the

regulation of a class of activities the individual

instances of which have an interactive effect, usually

because of market or competitive forces, on each other

and on interstate commerce. A given local transaction in

credit, or use of wheat, because of national market

forces, has an effect on the cost of credit or price of

wheat nationwide. Some such limiting principle must

apply to the ‘class of activities’ rule, else the reach

of the Commerce Clause would be unlimited, for virtually

all legislation is ‘class based’ in some sense of the

term.” Lopez, 2 F.3d at 1367 (quoting Perez, 91 S.Ct. at

1361; Wirtz, 88 S.Ct. at 2022).

We believe that a requirement for such a limiting principle in the

absence of a jurisdictional element, although not expressly adopted

by the Supreme Court, is the only legitimate reading of the

Wickard-Perez line of cases. Unless there is something that

relevantly ties the separate incidents and their effects on

interstate commerce together, aside from the desire to justify

congressional regulation, the government’s “class of activities”

interpretation would transform Justice Breyer’s Lopez dissent into

the constitutional rule. See Lopez, 115 S.Ct. at 1659-62 (Breyer,

J., dissenting) (arguing that guns in schools undermine the quality

of education which, in turn, leads to “lagging worker productivity”

and, eventually, the erosion of “our [Nation’s] economic ‘standing

in the international marketplace’”); id. at 1632 (criticizing the

government’s “costs of crime” and “national productivity”
11 These considerations similarly inform us that, in

determining whether the regulated intrastate activity

substantially affects interstate commerce, “substantial”

must be understood to have reference not only to a

quantitative measure but also to qualitative ones;

effects which are too indirect, remote, or attenuated——or

are seen only by piling “inference upon inference”——are

not substantial. Our use of “substantially” hence

embraces both quantitative and qualitative measures.

20

arguments).11 Wickard itself offered, as a limiting principle, the

national wheat market. Perez cited the national market for

commercial credit. The “fungible and untraceable” characteristic

of narcotics——which Congress found made federal regulation of

intrastate trafficking an operationally necessary prerequisite to

effective regulation of the interstate activity——was itself a tying

feature (albeit one which was more relevant to bring intrastate

activity within the reach of Lopez’s first category). See Lopez,

2 F.3d at 1351, 1367 n.51 (citing United States v. Lopez, 459 F.2d

949, 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United

States, 93 S.Ct. 130 (1972)).

In other words, although activities proscribed by an act of

Congress may constitute, generically, a “class of activities,” and,

when viewed in the aggregate, these activities may “substantially

affect” interstate commerce in some broad and general sense, these

two features, alone, are not sufficient to justify congressional

legislation pursuant to the Commerce Clause. What was missing in

Lopez, and what is needed to justify congressional action under the

“substantial effects” category, are “judicially enforceable outer
12 While certain language in United States v.

Robinson, 119 F.3d 1205 (5th Cir. 1997), read in

isolation, might be understood to embrace a somewhat farreaching “class of activities” analysis, the opinion must

be read in the context of what was before the panel

there, namely a prosecution under the Hobbs Act, a

statute specifically providing for an interstate commerce

nexus, for robberies of businesses directly engaged in

interstate commerce (in addition to dealing in

merchandise from out of state, “[t]he stores provided

check-cashing services . . . the stores cashed out-ofstate checks, payroll checks, and government benefit

checks”) with a direct impact on the interstate commerce

of the locations robbed (“one store was forced to close

permanently for lack of capital, and the others were

unable to cash checks for a finite period of time”). Id.

at 1208. Here, by contrast, the statute requires no

nexus whatever to interstate commerce, and the evidence

does not establish that the victim clinic or doctor was

(then or ever) engaged in interstate commerce (i.e.,

serving interstate patients or utilizing out-of-state

providers or the like).

21

limits.” Lopez, 115 S.Ct. at 1633.12

Accordingly, our inquiry must determine not simply whether

section 248(a)(1) proscribes intrastate activity that has (or might

have) a substantial affect on interstate commerce, but rather

whether there is a national commercial market in abortion-related

services such that the regulated conduct——considered in light of

the size and scope of the benchmark market——substantially affects

interstate commerce. In other words, Congress must have divined

the existence of a national commercial market in abortion-related

services in which the closing down or obstruction of any clinic (or

clinics) in one state (even if only serving local patients with

local doctors) substantially affects the ability of clinics in

other states to provide abortion-related services. To this end we

must examine the congressional findings, the committee reports, and
13 We do not suggest that simply because a type of

antisocial conduct (which any state could validly

proscribe) can fairly be described as a “national”

problem in the sense that many (or even all) states

experience more instances of it than are desirable or

desired, that this of itself suffices to bring such

conduct within the scope of Congress’s Commerce Clause

power. Plainly it does not. Ever since a time well

before the Constitutional Convention,

there have been every year in each of the several states

more murders than desirable or desired, but it is

nevertheless plain that the Commerce Clause does not

authorize Congress to enact legislation punishing any and

all murders throughout the nation. As Chief Justice

Marshall wrote for a unanimous Court in Cohens v.

Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821), “Congress has

. . . no general right to punish murder committed within

any of the states,” id. at 426, and “[i]t is clear, that

Congress cannot punish felonies generally.” Id. at 428.

Here, it is also true that the proscribed offenses all

share a relatively narrow common goal or motivation and

are all directed at a relatively narrow common set of

victims, and further that many of the proscribed offenses

involve common perpetrators traveling in interstate

commerce and victims engaged in interstate commerce. As

the proscribed conduct is present nationally, these

factors may have some tendency to support the statute,

but are not collectively of themselves alone sufficient

to bring it within the Commerce Clause where the statute

has no jurisdictional nexus and neither the allegations

nor the evidence show that the defendant traveled in

22

the relevant testimony.

We are persuaded that section 248(a)(1) is a legitimate

regulation of intrastate activity having a substantial affect on

interstate commerce. First, Congress made findings, supported by

the testimony presented to the House and Senate committees charged

with considering the Act, that there was an interstate commercial

market for abortion services. Second, Congress found that the

activity prohibited by the Act constituted a nationwide problem,

regularly causing the interruption of abortion services at the

clinics where the prohibited activity occurred.13 Third, Congress
interstate commerce (or acted in concert with those who

did) or that either the clinic or provider was engaged in

interstate commerce (and there being no showing or

congressional finding that regulation of intrastate

perpetrators or protection of intrastate victims was

necessary to effectively either regulate interstate

perpetrators or protect interstate victims).

23

found that the interruption of abortion services due to the

activities prohibited by the Act caused (or was likely to cause)

women to travel from the states where abortion services were

interrupted to clinics, often out of state, that were able to

provide unobstructed abortion services. Finally, it is a fair

inference, supported by congressional testimony, that the

proportionate increase in demand at unobstructed clinics brought

about by those women forced to seek abortion services in the

national commercial market because of intrastate activity

obstructing local abortion clinics both increased (or was likely to

increase) the cost of abortion services and reduced (or was likely

to reduce) the availability of abortion services at the

unobstructed clinics. Accordingly, in light of the national

commercial market in abortion-related services recognized by

Congress, we hold that Congress was justified in concluding that

the regulation of intrastate activity——the activity prohibited by

the Act——was necessary to ensure the availability (both in terms of

access and price) of abortion services in the national commercial

market. Consistent with Lopez’s admonition, we note that the

presence of a national commercial market in abortion-related

services, together with the effects on such market of the

proscribed conduct, serves as a limiting principle circumscribing
14 Use of legislative history in this manner is

entirely consistent with our responsibility to gauge the

regulated activity’s effect on interstate commerce. See

Lopez, 115 S.Ct. at 1631 (“[A]s part of our independent

evaluation of constitutionality under the Commerce Clause

we of course consider the legislative findings, and

indeed even the congressional committee findings,

regarding the effect on interstate commerce . . . .”);

Presseault v. ICC, 110 S.Ct. 914, 924-25 (1990)

(discussing the House and Senate reports accompanying the

National Trails System Act); Bass,

92 S.Ct. at 520-21 (examining House and Senate floor

statements to discern link to interstate commerce);

Coleman, 78 F.3d at 158-59 (quoting House Report and

House and Senate floor statements).

24

Congress’s regulation of intrastate activity under the Act.

In reaching our determination that the Act satisfies the

“substantially affects” category, we note that the finding set

forth in the Conference Committee Report, stating that the activity

proscribed by the Act “burdens interstate commerce by forcing

patients to travel from states where their access to reproductive

health services is obstructed to other states” is a conclusion

derived from months of legislative hearings, research, and debate.

As such, it is entitled to deference and should be interpreted,

insofar as it is consistent with the information before the

Congress at the time of enactment, to support a constitutional

reading of the Act.14 Cf. Rust v. Sullivan, 111 S.Ct. 1759, 1771

(1991) (“‘The elementary rule is that every reasonable construction

must be resorted to, in order to save a statute from

unconstitutionality.’”) (quoting Hooper v. California, 15 S.Ct.

207, 211 (1895)).

a. National Market for Abortion-Related Services

Congress found that doctors travel across state lines to
25

provide abortion services and that patients also travel interstate

to obtain such services. S. Rep. No. 103-117, at 31 (1993)

(“[M]any of the patients who seek services from these facilities

engage in interstate commerce by traveling from one state to obtain

services in another.”); H. Rep. No. 103-306, at 8 (1993) (“Many of

the counties that have providers are urban centers. A rural

provider is often the only provider in a large geographical area.

. . . The facts are that only 17 percent of U.S. counties have an

abortion provider and that clinic owners face a shortage of doctors

willing to perform abortions.”), reprinted in 1994 U.S.C.C.A.N.

699, 705. Indeed, it is the very shortage of abortion-related

services that appears to have created the national market for these

services. See S. Rep. at 17 & n.29 (“The availability of abortion

services is already very limited in many parts of the United

States. Nationwide, 83% of counties have no abortion provider. In

South Dakota, the only physician who performs abortions commutes

from Minnesota.”).

The House and Senate reports accurately reflect the testimony

presented to the respective committees. See Abortion Clinic

Violence: Hearings Before the Subcomm. on Crime and Criminal

Justice of the Comm. on the Judiciary, 103d Cong., at 3 (1993)

[hereinafter House Hearings] (letter of Atty. Gen Reno) (stating

that “patients and staff frequently travel interstate” to receive

or to administer abortion-related services); The Freedom of Access

to Clinic Entrances Act of 1993: Hearing Before the Comm. on Labor

and Human Resources, 103d Cong., at 11, 16-17 (1993) [hereinafter
26

Senate Hearings] (statement of Atty. Gen. Reno) (stating that

abortion clinics are engaged in interstate commerce and that

clinics serve significant numbers of out-of-state patients); id. at

59, 64-65 (statement of Willa Craig, Executive Director, Blue

Mountain Clinic, Missoula, MT) (“A large number of our abortion and

our prenatal patients travel an average of 120 miles to their

appointments at our clinic due to a lack of services in their own

areas. These areas include Idaho, eastern Washington, Wyoming and

Canada.”); see also 139 Cong. Rec. S15, 658 (daily ed. Nov. 16,

1993) (statement of Sen. Kennedy) (noting the nationwide shortage

of abortion-related services).

b. Activity Proscribed by the Act Threatens the Availability

of Abortion-Related Services

Congress found that the activity proscribed by the Act

constituted a national problem, regularly causing the interruption

of abortion-related services at the clinics where prohibited

activity occurred. The Senate Report states that clinic blockades

and violent protests had “a significant adverse impact not only on

abortion patients and providers, but also on the delivery of a wide

range of health care services. This conduct has forced clinics to

close, caused serious and harmful delays in the provision of

medical services, and increased health risks to patients. It has

also taken a severe toll on providers, intimidated some into

ceasing to offer abortion services, and contributed to an already

acute shortage of qualified abortion providers.” S. Rep. No. 103-

117, at 14. The Senate Report observed the link between the

activity prohibited by the Act and the concomitant shortage in
27

abortion-related services. Id. at 17 (“Some providers have

succumbed to the intimidation and threats. At least three

physicians in Dallas stopped performing abortions in 1992 as a

result of pressure by an anti-abortion group. In early 1993, after

receiving death threats, two doctors stopped working at an abortion

clinic in Melbourne, FL. And since Dr. Gunn was shot in March

1993, at least eight more doctors have stopped offering abortion

services.”); id. at 80 (statement of Randall Terry, Director,

Operation Rescue) (stating that he personally facilitated the

withdrawal of half the abortion providers in a community). The

House Report also observed that the reduced availability of

abortion-related services was “at least partially attributable to

the violence and intimidation described in this report. Doctors

understandably are leaving the field, and new graduate[s] have

little desire to enter the field even as part of a wider

obstetrics/gynecology practice.” H. Rep. No. 103-306, at 8.

Congress noted the severity and frequency of abortion clinic

violence. Id. (noting that, from 1984 through 1992, there had been

“28 bombings, 62 arsons, 48 attempted bombings and arsons, 266 bomb

threats, and 394 incidents of vandalism”); S. Rep. No. 103-117, at

3 & n.1 (noting that, from 1977 through 1993, there had been “36

bombings, 81 arsons, 131 death threats, 84 assaults, two

kidnappings, 327 clinic invasions, and one murder”). Testimony

before Congress made clear that the goal of the activity proscribed

by the Act was to reduce or eliminate the national market for

abortion-related services and that such activity had already
28

achieved partial success. See, e.g., House Hearings, at 2

(statement of Rep. Schuman) (observing that “[t]he stated goal of

the tactics is to drive doctors and clinics out of the business of

providing abortions and the tactics appear to be working” and

noting the diminishing numbers of physicians willing to provide

abortion-related services); Senate Hearings, at 167-68 (statement

of Freedom of Choice Action League) (detailing resignation of a

Wichita, Kansas, physician from an abortion clinic after she

received repeated threats). Floor debates also focused on the

interruption of abortion-related services brought about by the

activity proscribed by the Act. See, e.g., 139 Cong. Rec. S15,672

(daily ed. Nov. 16, 1993) (statement of Sen. Mikulski) (noting that

abortion clinic violence has “destroyed clinic facilities——leaving

women without access to health care facilities”); 139 Cong. Rec.

H10,089 (daily ed. Nov. 18, 1993) (statement of Rep. Pelosi) (“over

50 percent of clinics across the country offering reproductive

health services have undergone extreme violence”); id. at H10,090

(statement of Rep. Engel) (“The work of many clinics——which often

includes low-cost prenatal care, birth control, infertility, and

adoption as well as abortion services——has been disrupted regularly

by blockades, chemical attacks, and invasions.”); id. at H10,091

(statement of Rep. Stokes) (“[Activity proscribed by the Act has]

damaged clinic facilities or driven away clinic staff, forcing

these facilities to reduce their patient load and the wide range of

services they provide. Other clinics have had to cease operations

altogether after their facilities were destroyed by fire or
29

bombings, leaving thousands of women without adequate health care

services.”); 139 Cong. Rec. H1501 (daily ed. Mar. 17, 1994)

(statement of Rep. Kennelly) (noting the national scope of the

abortion clinic violence).

c. The National Shortage of Abortion-Related Services Forces

Travel to Out-of-State Providers

Congress found that the interruption of abortion-related

services due to the activities proscribed by the Act caused (or was

likely to cause) women to travel from those states where abortionrelated services were not reasonably available to clinics in those

states where abortion-related services were reasonably available.

The Senate Report states:

“[B]lockades that make access to a health care facility

difficult or hazardous can have traumatic effects on

patients by delaying their access to urgent medical care

and by exacerbating their medical conditions. . . . For

patients seeking abortion services, the adverse effects

of a clinic blockade can be particularly serious. Dr.

Pablo Rodriguez described the effects on patient health:

‘Our patients are the ones who suffer. Women

who do make it in have a heightened level of

anxiety and a greater risk of complications. The

delay caused by the invasions has forced some

patients to seek care elsewhere due to the fact

that their gestational age has gone beyond the

first trimester.’” 

S. Rep. No. 103-117, at 15 (quoting testimony of Dr.

Pablo Rodriguez).

The House Report reaches a similar conclusion. See H. Rep. No.

103-306, at 10. (“In addition, patients often cross state lines to

obtain services . . . .”) (citing testimony of Silvia Doe).

Testimony before Congress made clear that activity proscribed

by the Act delayed (and threatened to deny permanently) access to

abortion-related services to women who, due to the existing
30

shortage of such services, had traveled (or would be required to

travel) interstate to obtain them. Silvia Doe testified about her

decision to seek a late-term abortion after learning of a fetal

malformation. She further testified that only three clinics in the

country offer such a service. She was forced, by the shortage of

providers, to travel from Virginia to Kansas. In Wichita, Kansas,

she was delayed from obtaining her abortion due to a clinic

blockade at the Wichita clinic. Clinic Blockades: Hearing Before

the Subcomm. on Crime and Criminal Justice of the Comm. on the

Judiciary, 102d Cong., at 9-17 (statement of Silvia Doe).

The congressional testimony and the activity described in the

committee reports provide sufficient evidence for the Congress to

have concluded that entirely intrastate activity——here, the activity

proscribed by the Act——had, at the very least, the potential to

cause women who had been prevented from obtaining abortion-related

services in their home states to travel to unobstructed providers

in other states.

d. Intrastate Activity Proscribed by the Act Affects the

Availability of Abortion-Related Services in the National Market

We are persuaded that it is a fair inference that the activity

proscribed by the Act——which has (or threatens to have) the effect

of precluding access to abortion-related services in the area

served by the targeted clinic——can have a substantial affect on the

availability of abortion-related services in the national market.

Such a conclusion is rational and supported by testimony presented

to the committees charged with reviewing the bills that eventually

became the Act.
31

The House Subcommittee on Crime and Criminal Justice heard

testimony that, because of the continued threats of violence and

disruptive activities, abortion clinics have been forced to

implement heightened security measures to ensure access. House

Hearings, at 25 (statement of Susan Hill, President, Nat’l Women’s

Health Org.) (noting that “[o]bviously, that drives up the costs of

providing the service”). The Senate Committee on Labor and Human

Resources considered a report printed in the American Journal of

Obstetrics and Gynecology which noted that abortion clinic violence

increases the costs of abortion services at those clinics that

remain open. The report stated that abortion patients have been

forced, due to clinic violence, to seek other providers or postpone

care. Senate Hearings, at 54. Additional testimony before the

Senate Committee set forth the Commerce Clause rationale for the

Act’s regulation of intrastate activities to ensure the

availability of abortion-related services in the national market:

“The pattern of interstate effects produced by the

pressured movement of women from State to State under a

variegated patchwork of local enforcement against

blockades, violence and physical intimidation at abortion

clinics is undoubtedly sufficient to warrant Congress’s

invocation of its commerce power. Similarly, the shift

of demand for abortion services from those areas where

clinic access is obstructed to those areas where it is

not represents the sort of interstate economic effect

that is beyond the effective control of any one State and

is accordingly a proper subject for congressional

regulation under the Commerce Clause.” Id. at 97

(statement of Professor Tribe) (citing Summit Health,

Ltd. v. Pinhas, 111 S.Ct. 1847, 1846-47 (1991)).

This described shift in demand from obstructed clinics to

unobstructed clinics——given the national scarcity of abortionrelated services——supports the legitimacy of Congress’s enactment
15 We recognize, of course, that “[t]he motive and

purpose of a regulation of interstate commerce are

matters for the legislative judgment upon the exercise of

which the Constitution places no restriction and over

which the courts are given no control.” Darby, 61 S.Ct.

at 457. This is not to say, however, that the motive or

purpose of any congressional regulation passed under the

Commerce Clause is “irrelevant.” United States v.

Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996). Certainly

when Congress is regulating interstate commercial

activity, its reason for doing so is immaterial. But

where, as here, Congress is regulating purely intrastate,

noncommercial activity because of its substantial affect

on interstate commerce, the purpose must in fact be to

regulate interstate commerce. “Let the end be

legitimate, let it be within the scope of the

constitution, and all means which are appropriate, which

are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” M’Culluch v.

Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis

added). See also id. at 423 (“should Congress, under the

pretext of executing its powers, pass laws for the

accomplishment of objects not entrusted to the

government,” Supreme Court would be bound to hold law

invalid). Surely, it would be a perversion of

congressional authority to uphold as constitutional a

federal statute that purported to be an exercise of

Commerce Clause power but was for the sole purpose of

reaching intrastate activity without regard to whether or

how that activity would actually affect interstate

commerce. The regulation of intrastate commerce per se,

and for its own sake, and not as a means of regulating or

32

of section 248(a). The patent congressional concern that the

activity proscribed by the Act, although intrastate, could have a

deleterious impact on the availability of abortion-related services

in the national market, makes clear that “Congress was addressing

an interstate problem rather than a multistate, intrastate

problem.” Wilson, 73 F.3d at 683.

Accordingly, in light of the evident congressional purpose to

ensure the availability of abortion-related services in the

national commercial market,15 we hold that the enactment of section
affecting interstate commerce, is not an “end . . .

within the scope of the constitution.” Here, however, we

cannot say that Congress has so perverted its Commerce

Clause power. The regulation in question is at least

colorably directed at ensuring the availability of

abortion-related services in the national commercial

market.

16 Nor do we have occasion to determine the propriety

of the Act’s criminalization of certain activities by

private citizens that may interfere with a person’s

exercise of religious freedom at a place of worship or a

person’s use of a noncommercial counseling

facility——neither of which would seem to fall within the

type of economic regulation permitted by Lopez as there

was no congressional finding or testimony concerning the

commercial nature of such activity, any national shortage

of counselors or counseling services, or the existence of

any national tying feature supporting the exercise of

congressional Commerce Clause authority under the

“substantial affects” category.

33

248(a), as applied to the facts of the present case, was a

constitutional exercise of Congress’s power under the Commerce

Clause. Because we conclude that Congress possessed the requisite

authority under the Commerce Clause, we pretermit the substantially

more questionable assertion of congressional authority to

criminalize purely private conduct (not directed at state property

or facilities) under Section Five of the Fourteenth Amendment. See

The Civil Rights Cases, 3 S.Ct. 18 (1883). See also City of Boerne

v. Flores, 117 S.Ct. 2157, 2166 (1997).16

B. Invidious Discrimination against Familial Relationships

Bird next argues that the Act is unconstitutional because it

protects certain familial relationships, but fails to protect

others. Section 248(a) states that “a parent or legal guardian of

a minor shall not be subject to any penalties or civil remedies

under this section for such activities insofar as they are directed
34

exclusively at that minor.” 18 U.S.C. § 248(a). Thus, a father

who physically blocks his daughter from having an abortion has not

violated the Act, but a brother who restrains his sister has

violated the Act. Bird asserts that there is no reasonable basis

for exempting certain familial relationships while exempting

others.

As Bird is not related to Dr. Herring in any capacity, and the

record does not establish that his actions in any manner reflect an

attempt to affect the obtainment of abortion-related services by a

member of his family, he lacks standing to advance this claim——his

concern is simply not implicated by the facts here presented. This

Court “‘has no jurisdiction to pronounce any statute, either of a

state or of the United States, void, because irreconcilable with

the constitution, except as it is called upon to adjudge the legal

rights of litigants in actual controversies.’ . . . [O]ne to whom

application of a statute is constitutional will not be heard to

attack the statute on the ground that impliedly it might also be

taken as applying to other persons or other situations in which its

application might be unconstitutional.” United States v. Raines,

80 S.Ct. 519, 522 (1960) (quoting Liverpool, N.Y. & Phila. S.S. Co.

v. Commissioners of Emigration, 5 S.Ct. 352, 355 (1885)); see also

United States v. Salerno, 107 S.Ct. 2095, 2100 & n.3 (1987).

Accordingly, we express no opinion as to the merits of Bird’s

challenge in this respect.

C. Overbreadth

Bird next argues that the Act is unconstitutional because it
35

is overbroad under the First Amendment. Bird concedes that the

First Amendment does not protect activities that are violent or

physically injurious, including threats of force and certain

physical obstructions, such as blockades of pedestrian traffic.

Instead, Bird takes issue with the Act’s prohibition on physical

obstruction, intentional interference with others, attempted

interference with others, and intentional injury “in the emotional

or psychological sense.” Bird contends that a “large demonstration

or picketing activity could well constitute a ‘physical

obstruction’” under the Act.

We need not tarry long with Bird’s overbreadth argument, for

the Act proscribes conduct, not speech. By its terms, it prohibits

only specified uses of “force,” “threat[s] of force,” and “physical

obstruction”; none of which are protected by the First Amendment.

Wisconsin v. Mitchell, 113 S.Ct. 2194, 2199 (1993) (force); Madsen

v. Women’s Health Ctr., Inc., 114 S.Ct. 2516, 2529 (1994)

(threats); Cameron v. Johnson, 88 S.Ct. 1335, 1338-39 (1968)

(physical obstruction). In any event, the conduct for which Bird

was convicted, and at least virtually all that proscribed by the

terms of section 248(a)(1), is not protected by the First

Amendment; accordingly, that there could arguably be some rare

hypothetical case at the outer margins of section 248(a)(1) where

First Amendment concerns might arise does not avail Bird.

Broadrick v. Oklahoma, 93 S.Ct. 2908, 2917-18 (1973); see also

Morse v. Republican Party of Virginia, 116 S.Ct. 1186, 1211 & n.38

(1996); United States v. Wallington, 889 F.2d 573, 576 (5th Cir.
17 The Act provides:

“(d) Rules of Construction.--Nothing in this section

shall be construed--

(1) to prohibit any expressive conduct (including

peaceful picketing or other peaceful demonstration)

protected from legal prohibition by the First

Amendment to the Constitution.” 18 U.S.C. §

248(d).

36

1989). This is particularly so as the Act was narrowly drafted

with the intent of not abridging First Amendment protections.17

Accordingly we agree with every other circuit court that has

addressed the issue and hold that the Act is not unconstitutionally

overbroad. See Terry, 101 F.3d at 1421; Soderna, 82 F.3d at 1376;

Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1520-21; American

Life League, 47 F.3d at 653.

D. Vagueness

A statute is unconstitutionally vague if it does not give a

“person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.” Grayned v.

City of Rockford, 92 S.Ct. 2294, 2298-99 (1972). Bird asserts that

the Act fails to give fair notice of what is proscribed and fails

to provide explicit standards for the enforcement of particular

provisions. Specifically, he claims that the terms “intimidate,”

“interfere with,” “attempts to . . . intimidate or interfere with”

and “injures” are too vague to be constitutional. An abortion

protester, he argues, will not be sure whether his actions comply

with the Act or subject him to penalties.

The Supreme Court has upheld against a vagueness challenge a

statute closely resembling the Act. Cameron, 88 S.Ct. 1335. The
37

statute at issue in Cameron provided that: 

“‘It shall be unlawful 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 any public premises . . . .’” Id. at 1336 n.1.

The Court found that the statute “clearly and precisely

delineate[d] its reach in words of common understanding.” Id. at

1338. In light of the Act’s similarity to the statute at issue in

Cameron, we hold that the Act’s terms are not unconstitutionally

vague. See Terry, 101 F.3d at 1421; Dinwiddie, 76 F.3d at 924. In

any event, there is no vagueness or lack of clarity in the

application of the terms of section 248(a)(1) to what Bird was

convicted of doing, and in at least the vast majority of cases

whether or not the terms of section 248(a)(1) apply will be

adequately clear; the theoretical possibility that some rare case

at the margins of section 248(a)(1) might arise where the

applicable of its terms could be unclear does not avail Bird.

Parker v. Levy, 94 S.Ct. 2547, 2562 (1974); Umphlet v. Connick, 815

F.2d 1061, 1066 (5th Cir. 1987); Ferguson v. Estelle, 718 F.2d 730,

735 (5th Cir. 1983).

II.

As a condition of supervised release, the district court

ordered Bird to “[s]tay at least 1,000 feet away from abortion

clinics, specifically the America’s Women Clinic.” The district

court was permitted to order, as a condition of supervised release,

“any other condition it consider[ed] to be appropriate” provided

the condition “involve[d] no greater deprivation of liberty than
38

[was] reasonably necessary” to deter criminal conduct and to

protect the public. 18 U.S.C. § 3583(d). The district court cited

Bird’s prior convictions for trespassing at abortion clinics as

support for the special condition.

Bird argues that the special condition violates his First

Amendment rights because it was not narrowly tailored to serve a

significant government interest and because the special condition

was duplicative of the “standard conditions of supervision” set

forth in the judgment. 

This Court reviews a district court’s entry of special

conditions of supervision for an abuse of discretion. United

States v. Mills, 959 F.2d 516, 519 (5th Cir. 1992); United States

v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979). In light of Bird’s

prior activities involving criminal activity at or near both

abortion clinics and at the residence of an abortion provider and

his earlier refusal to accept any restrictions on his protest

activity, we cannot say that the district court abused its

discretion in determining that the 1,000 foot requirement was

reasonably necessary to prevent Bird from repeating the activity

for which he was convicted. Bird’s conviction for violent activity

under the Act constitutes a sufficient governmental interest to

justify a temporary limitation on Bird’s First Amendment rights.

See United States v. Turner, 44 F.3d 900, 903 (10th Cir.), cert.

denied, 115 S.Ct. 2250 (1995); United States v. Cothran, 855 F.2d

749, 751 (11th Cir. 1988). Bird’s contention that the provision of

a standard condition that Bird “shall not associate with any
39

persons engaged in criminal activity” invalidates the district

court’s more specific special condition is without merit. The

district court was within its authority conferred by 18 U.S.C. §

3583(d).

III.

Bird finally argues that the district court’s judgment is

unconstitutional and violative of due process because it states,

under “Nature of Offense,” that he was found guilty of “Blocking

Entrance to an Abortion Clinic” when, in fact, the indictment sets

forth his specific conduct as intimidating and interfering with Dr.

Herring’s provision of abortion services.

Bird’s claim is without merit. Bird was indicted for conduct

violative of 18 U.S.C. § 248(a)(1) (and the indictment references

that section alone). He was found guilty, after a jury trial, of

violating 18 U.S.C. § 248(a)(1). The judgment states that Bird was

found guilty of violating 18 U.S.C. § 248(a)(1). That the judgment

characterizes his offense as “blocking” an entrance to an abortion

clinic is, at most, a reference to the name of the statute that he

violated——the Freedom of Access to Clinic Entrances Act (FACE).

That Dr. Herring was able to make it past Bird’s bottle-throwing

attempt to stop his car from entering the America’s Women Clinic

does not invalidate the judgment. The district court’s judgment is

entirely consistent with both the nature of his offense and with

due process.

Conclusion

For the foregoing reasons, we AFFIRM the judgment of the
40

district court.

AFFIRMED

ENDRECORD 
DeMOSS, Circuit Judge, concurring in part and dissenting in part:

I concur in subparts I(B), I(C), and I(D) and in parts II and

III of the majority opinion. I also concur in section I(A)(1)

(“Channels of Interstate Commerce”) and section I(A)(2) (“Persons

or Things in Interstate Commerce”) of the majority opinion, which

conclude that the Freedom of Access to Clinic Entrances Act, 18

U.S.C. § 248 et seq. (hereinafter “FACE”), was not validly enacted

under either of the first two categories of Commerce Clause

analysis set forth by the Supreme Court in United States v. Lopez,

514 U.S. 549 (1995). However, I cannot concur in the analysis and

holding in section I(A)(3) (“Interstate Activity that

‘Substantially Affects’ Interstate Activity”) of the majority

opinion, which concludes that the enactment of FACE falls within

part three of the Lopez analysis because Congress found a “national

commercial market in abortion-related services,” and that Congress

was justified in determining “that the regulation of intrastate

activity—the activity prohibited by the Act—was necessary to ensure

the availability (both in terms of access and price) of abortion

services in the national commercial market.” Ante at 22. Because

I disagree with the fundamental premises of these holdings, I write

now to explain my reasons.

I.

Rather than applying the clear and explicit criteria which the

Supreme Court set forth in Lopez, the majority considers the

constitutionality of FACE under the third Lopez category by

constructing an analysis built upon three essential premises:
42

1. “After Wickard—and its reaffirmance in Lopez—there

can be no question that Congress is able to regulate

noncommercial, intrastate activity that substantially affects

interstate commerce, an admittedly broad power not without

danger to the federalism that is the most fundamental

postulate of our constitutional order.” Ante at 17 (footnotes

omitted).

2. “[A] requirement for . . . a limiting principle in

the absence of a jurisdictional element, although not

expressly adopted by the Supreme Court, is the only legitimate

reading of the Wickard-Perez line of cases.” Ante at 18-19.

3. “[O]ur inquiry must determine not simply whether

§ 248(a)(1) proscribes intrastate activity that has (or might

have) a substantial effect on interstate commerce, but rather

whether there is a national commercial market in abortionrelated services such that the regulated conduct—considered in

light of the size and scope of the benchmark

market—substantially affects interstate commerce.” Ante at

20.

I disagree with each of these premises, which create fundamental

and logical deficiencies in the majority’s analysis.

There is no question that the conduct proscribed by FACE is

“intrastate and noncommercial conduct.” Injuring or threatening to

injure persons who seek to receive or deliver abortion services is,

by its very nature, an intrastate activity; such conduct inherently

involves face-to-face and person-to-person contact which must occur
43

in the same place at the same time. Likewise, such conduct does

not involve the transfer of money or any other consideration

between the perpetrator and the victim, and there is no commercial

motive prompting the perpetrator to engage in such conduct.

I think the first premise of the majority opinion as set forth

above is inaccurate in two respects. First, I do not read Lopez as

an affirmance of Wickard. Rather, I see Lopez as a

reinterpretation of Wickard which focuses on what the Court now

says is the essential ingredient for Congress to be able to

regulate intrastate noneconomic conduct which substantially affects

interstate commerce. Particularly, the proscribed intrastate,

noncommercial activity must be “an essential part of a larger

regulation of economic activity, in which the regulatory scheme

would be undercut unless the intrastate activity were regulated.”

Lopez, 514 U.S. at 561. The majority recognizes this essential

ingredient in the second paragraph of its discussion of “intrastate

activity that substantially affects interstate activity,” see ante

at 15, but then blithely ignores the fact that FACE is not a part

of any larger regulatory scheme, and moves on to discuss the need

for a “limiting principle,” as indicated by the majority’s second

premise above. 

The only relevant “limiting principle” is the one dictated by

the Supreme Court’s Lopez decision. The Lopez Court adopted a new

reading of the Wickard-Perez line of cases by specifying that, for

Congress to be able to regulate intrastate and noncommercial

conduct under the Interstate Commerce Clause, such conduct must be
44

“an essential part of a larger regulation of economic activity, in

which the regulatory scheme could be undercut unless the intrastate

activity were regulated.” Id. FACE does not meet these criteria.

The legislation is not an essential part of a larger regulatory

scheme which would be undercut if Congress does not proscribe with

criminal sanctions the intrastate and noncommercial conduct which

FACE addresses.

Consequently, the majority errs in engaging in an examination

of “the congressional findings, the committee reports, and the

relevant testimony,” ante at 20, to determine whether Congress

found a national commercial market in abortion-related services,

which would serve as the “limiting factor” that would minimize the

danger to federalism. There is absolutely nothing in the Supreme

Court’s Lopez decision that speaks to the majority’s concept of a

“national market” as being a limiting factor. As the majority

opinion indicates, this “national market” limiting concept is a

leftover argument from our Circuit’s panel opinion in Lopez. See

United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993), aff’d on

other grounds, 514 U.S. 549 (1995). In my view, to the extent that

the “national market” concept appears in our Circuit’s Lopez

opinion, it is dicta. Regardless, when the Supreme Court decided

Lopez, it provided a new framework for appraising legislation under

the Commerce Clause, and it did not include the “national market”

consideration in its own analysis, which necessarily supersedes the

earlier analysis from this Circuit. See, e.g., United States v.

Pettigrew, 77 F.3d 1500, 1511 n.1 (5th Cir. 1996) (“While . . . one
45

panel of this Court is generally powerless to overrule the previous

decision of another panel absent rehearing by the full Court

sitting en banc, an exception to this rule arises when there has

been an intervening decision by the United States Supreme Court

overriding the earlier decision.”).

Furthermore, neither the Fifth Circuit’s Lopez opinion, nor

the majority opinion in this case, establish any criteria to define

what is referred to as a “national market.” The words “national

market” invoke the image of something like the New York Stock

Exchange, the Chicago Board of Trade, or the Commodities and

Futures Exchange. These are national markets which operate through

brokers and dealers to bring buyers and sellers together and

produce an established range of bid and ask prices as reflected by

current transactions in the item being traded. It seems to me that

at the very least, a “national market” requires a product or

commodity which has a high degree of fungibility. For example, a

share of stock in U.S. Steel can be sold on a national market by a

seller in California to a buyer in New York in reliance upon the

fact that the share of stock represents the same thing in both

places. Similarly, a bushel of wheat grown in Nebraska will be the

same as a bushel of wheat grown in Kansas once the farmers who grew

each bushel have moved them into the national market. There is

nothing in the Congressional Record that establishes that one

abortion procedure is just like every other abortion procedure. To

the contrary, an abortion is a unique, personal, and highly

individualized procedure.
46

In addition to fungibility, a primary function of a “national

market” is to determine a unit price for each commodity based upon

the most recent sales of that commodity, without distinction as to

whether that commodity was grown or manufactured in Texas or was

grown or manufactured in Michigan. The majority says that “Wickard

itself offered, as a limiting principal, the national wheat market”

and “Perez cited the national market for commercial credit.” See

ante at 19. But there is a serious distinction between those types

of national markets and a “national market in abortion-related

services.” An abortion is a medical/surgical procedure performed

in a hospital or clinic by a provider on a pregnant woman. There

is no product or commodity which results from this procedure. When

a woman arranges to have an abortion performed, the subject of the

arrangement is a personal service that is to be provided. When the

service is rendered and the fee is paid, the abortion has no

ongoing value or marketability.

I recognize, of course, that the majority has concluded that

Congress found a national market for abortion services. See ante

at 22-24. I question the factual accuracy of this conclusion. The

only findings which the full Congress made relating to FACE are

those identified in the Conference Committee Report. See ante 5

n.2. Because the Conference Committee made these express findings,

we are bound to view these findings as the only findings which

Congress made. Therefore, in determining whether Congress found a

national market for abortion services, we can look only to the

Conference Committee Report and the findings set forth therein.
47

The words “national market for abortion-related services” do

not appear anywhere in these five Conference Committee findings.

The only one of these five findings which even mentions the term

“interstate commerce” is the third one, which states simply that

anti-abortion violence “burdens interstate commerce by forcing

patients to travel from states where their access to reproductive

health services is obstructed to other states.” H.R. CONF. REP. NO.

103-488, at 7 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724. The

mere fact that some individuals choose to or are forced to travel

interstate to receive abortions does not establish that there is a

“national market” for abortions. Nothing in the Conference

Committee’s statement of findings speaks to whether abortion

services are fungible, and nothing in this finding speaks to the

question of whether the price or availability of abortion services

in New York City is the same as that in Los Angeles or in Des

Moines, Iowa.

For the foregoing reasons, I do not agree that the presence of

a national market is the relevant inquiry under part three of the

Lopez analysis. Furthermore, assuming that the presence of a

national market is determinative, I am unable to concur in the

majority’s conclusion that Congress found a “national market for

abortion-related services,” which is the keystone of the majority’s

determination that FACE is a permissible exercise of Congress’s

power under the Commerce Clause as described in part three of

Lopez.
48

II.

In my view, FACE cannot survive Lopez analysis because the

statute is distinguishable from the permissible regulations of

conduct that substantially affects interstate commerce in four

important aspects. First, FACE is a criminal statute that by its

terms has nothing to do with commerce. See Lopez, 514 U.S. at 560-

61. Second, FACE is not an essential part of any larger regulation

of economic activity, in which that larger regulatory scheme could

be undercut unless the intrastate activity were regulated. See id.

at 561. Third, FACE contains no jurisdictional element which would

ensure through case-by-case inquiry that the conduct prohibited

therein affects interstate commerce. See id. Finally, FACE

exercises general police powers by creating criminal sanctions in

an area where the states have historically been recognized to be

sovereign. See id. at 564-65. These four departures from the

Lopez standard are fatal to the constitutionality of FACE.

A. FACE Is a Criminal Statute That by Its Terms Has Nothing to Do

with Commerce.

The statutory text of FACE does not contain the word

“commerce,” nor the phrase “intrastate commerce,” nor the phrase

“interstate commerce.” The conduct prohibited by FACE—the use of

force to interfere with another person’s obtaining or providing

reproductive health services—does not inherently involve conduct

which is a part of any commercial activity. In fact, the

prohibitions of FACE apply to a nonprofit, charitable facility that

provides abortions for free just as they apply to a clinic that
49

charges a fee for providing abortion services. 

Also, the prohibited conduct does not have any commercial

purpose of its own. The commercial nature of the regulated

activity is an important consideration in the substantially-affects

prong of the Lopez analysis. See, e.g., Lopez, 514 U.S. at 560

(“Where economic activity substantially affects interstate

commerce, legislation regulating that activity will be sustained.”

(emphasis supplied)). The activity regulated by FACE, the use of

force, threats, or intimidation to injure, intimidate, or interfere

with the persons identified by the statute, is behavior that is not

commercial by nature.

Despite the majority’s protest to the contrary, see ante at 21

n.13, there is no difference between the prohibitions in FACE and

a statute that might federalize murder on the grounds that killing

people substantially affects interstate commerce. The majority’s

suggested distinction, that the FACE prohibitions have “a

relatively narrow common goal or motivation and are all directed at

a relatively narrow common set of victims, and further . . . many

of the proscribed offenses involve common perpetrators traveling in

interstate commerce and victims engaged in interstate commerce,”

ante at 21 n.13, is untenable. Our panel is in agreement that FACE

does not fall within part two of the Lopez analysis, the prong for

persons or things in interstate commerce. Yet the majority’s

purported distinction relies on the presumed involvement of

“perpetrators engaged” and “victims engaged” in interstate

commerce. As the majority itself notes, “[c]ongressional
50

regulation or protection of persons or things that move in

interstate commerce must ensure that, in fact, a particular

‘threat’—whether posed by an interstate or intrastate

activity—actually threatens persons or things with a plain and

clear nexus to interstate commerce.” Ante at 12. FACE contains no

such “jurisdictional nexus.”

The approval of legislation like FACE opens the door to

general federalization of felonies. Lopez reaffirms that this sort

of legislation is not envisioned by the Commerce Clause. The

criminalization of noncommercial conduct by FACE is one important

distinction between FACE and the category of legislation described

in part three of Lopez. 

B. FACE Is Not an Essential Part of a Larger Regulation of

Economic Activity, in Which the Regulatory Scheme Could Be Undercut

Unless the Intrastate Activities Were Regulated.

There is no national regulatory scheme regarding the provision

of abortion services. The federal government does not license

abortion clinics, does not approve the training of abortion

providers, and does not regulate the delivery of abortion services

to ensure that any minimum health standards are met. The federal

government has not created any administrative agency nor designated

any department of the federal government to regulate the abortion

industry in order to stabilize the supply of abortion services or

encourage the demand for such services.

In short, there is no general federal regulatory scheme

relating to the abortion industry. Congress has made no finding to
51

the contrary. FACE cannot, therefore, be an essential part of any

general federal regulatory scheme, because none exists. It thus

goes without saying that the prohibited conduct in FACE does not,

as Lopez requires, undercut the enforcement of any general

regulatory scheme.

The majority recognizes the importance of this factor when it

quotes the operative language at the very beginning of its section

I(3), discussing the substantially-affects category of Commerce

Clause power. Ante at 15 (quoting Lopez, 514 U.S. at 561). But

the majority then proceeds to try to rationalize its way around

this specific language of Lopez by citing three earlier Supreme

Court opinions for the proposition that Congress can regulate

noncommercial local activity which “in the aggregate” substantially

affects interstate commerce: United States v. Darby, 312 U.S. 100

(1941); Wickard v. Filburn, 317 U.S. 111 (1942); and Perez v.

United States, 402 U.S. 146 (1971).

These three cases demonstrate the correctness of the Lopez

premise rather than an exception to it. In each of these cases

there was a comprehensive national regulatory scheme, and the

criminalized conduct was clearly defined as part of that regulatory

scheme. In Darby, the Supreme Court dealt with the wage and hour

laws of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The

defendant was an employer who failed to pay the statutory minimum

wages but went ahead and shipped his product in interstate

commerce. In Wickard, the Agricultural Adjustment Act of 1938

(“AAA”) was at issue. Filburn was a farmer whose farm fell under
52

the purview of the AAA and who had received an acreage allotment

under the AAA. The AAA expressly limited the ability of farmers to

raise a wheat crop for their own consumption and the Wickard case

validated that limitation. Finally, Perez arose in the context of

the Consumer Credit Protection Act, 18 U.S.C. § 891, with the

defendant being a loan shark who engaged in extortionate credit

transactions as therein defined. These cases deal directly with

conduct that might frustrate the efforts of a federal regulatory

system.

While I agree with the majority that Lopez’s reaffirmation of

the Wickard-Perez cases can be read as meaning that Congress can

“regulate noncommercial, intrastate activity that substantially

affects interstate commerce,” ante at 17, I see nothing in Lopez

that permits the elimination of the further requirement that such

“noncommercial, intrastate activity” must be “an essential part of

a larger regulation of economic activity.” Lopez, 514 U.S. at 561.

FACE stands alone as a criminal statute, unconnected to any larger

federal regulatory scheme. The statute purports to regulate

intrastate noncommercial activities and thus fails, for the reasons

noted above, to satisfy this requirement of Lopez.

C. FACE Contains No Jurisdictional Element Which Would Ensure,

Through Case-by-Case Inquiry, That The Prohibited Conduct Has a

Substantial Effect on Interstate Commerce.

It would have been a simple matter for Congress to have

included elements in FACE which would have provided a

“jurisdictional nexus.” These elements are ones which explicitly
53

tie the prohibited conduct in a criminal statute to interstate

commerce. The absence of a jurisdictional nexus was an important

factor in the Supreme Court’s disapproval of the Gun-Free School

Zones Act in Lopez. See Lopez, 514 U.S. at 561-62.

The simplicity with which FACE could have been

jurisdictionally limited is easily demonstrated. For example, the

statute defines the term “facility” as meaning “a hospital, clinic,

physician’s office, or other facility that provides reproductive

health services, and includes the building or structure in which

the facility is located.” 18 U.S.C. § 248(e)(1). Congress could

have qualified the definition by limiting it to facilities that

provide reproductive health services “to a person who has traveled

in interstate commerce in order to receive such services.”

Likewise, in § 248(a) (“Prohibited activities”), Congress could

have limited its prohibition to the use of force or physical

obstruction to injure, intimidate, or interfere with any person who

has traveled in interstate commerce to receive or provide abortion

services.

For whatever reason, Congress opted not to include

jurisdictional elements. As a consequence, this is yet another

factor that distinguishes FACE from the category of legislation

permitted as regulation of intrastate activity which substantially

affects interstate commerce.

D. FACE Intrudes on Issues Which Are Historically Local Concerns

and Outside the Regulatory Power of the Federal Government Under

the Interstate Commerce Clause.
54

The regulation of violent actions by one person against

another through criminal laws is the most elemental component of

general police power. The prohibited conduct in FACE—the use of

force, threats of force, or physical obstruction to intentionally

injure, intimidate, or interfere with another person—are well

within the classic type of prohibitions which a state exercising

its general police power may adopt. In its Lopez decision, the

Supreme Court repeatedly indicated that the Congress does not have

a general police power and that such power rests exclusively with

the states. See Lopez, 514 U.S. at 561 n.3 (“Under our federal

system, the ‘“States possess primary authority for defining and

enforcing the criminal law.”’” (quoting Brecht v. Abrahamson, 507

U.S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128

(1982)))); id. at 564 (“Under the theories that the Government

presents . . . it is difficult to perceive any limitation on

federal power, even in areas such as criminal law enforcement or

education where States historically have been sovereign.”); id. at

566 (“The Constitution . . . withhold[s] from Congress a plenary

police power that would authorize enactment of every type of

legislation.” (citing U.S. CONST., art. 1, § 8)); id. at 567 (“[T]o

uphold the Government’s contentions here, we would have to pile

inference upon inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a general

police power of the sort retained by the States.”).

The Congress was obviously motivated to enact FACE by the

desire to protect persons seeking to obtain or perform abortion
55

services. But this area is distinctly within the province of local

law. The Lopez Court considered family law to be the

quintessential example of such a local concern, see id. at 564, and

the action of obtaining an abortion results from what is

essentially a family decision. That the regulation of abortion in

particular is a local issue is borne out by the history. Before

Roe v. Wade, 410 U.S. 113 (1973), the states were prohibiting and

regulating abortions by state statute. In holding these state

statutes unconstitutional, the Supreme Court grounded its decisions

in the liberty or privacy elements of the First and Fifth

Amendments as made applicable to the states by the Fourteenth

Amendment. See Roe, 410 U.S. at 152-53. Neither in Roe nor in any

of its progeny did the Supreme Court ever mention the Commerce

Clause (or the dormant commerce clause), nor did the Supreme Court

suggest that these state statutes were unconstitutional because of

their intrusion on interstate commerce nor upon any “national

market” in the delivery of abortion services. Even today, in the

wake of Roe and Planned Parenthood v. Casey, 505 U.S. 833 (1992),

many states have statutes which regulate the circumstances of

access to abortions and the conditions under which abortions may be

delivered. The federal government has no such general abortion

regulation.

Both the regulation of violent acts among citizens and the

regulation of abortion services are areas of distinctively local

concern. The prohibitions imposed by FACE bear all of the

characteristics of enactments of police power. Lopez explicitly
56

warns against this variety of legislative excess, making this

factor yet one more important distinction between FACE and the laws

which have been approved as permissible regulations of intrastate

conduct that substantially affects interstate commerce.

E. FACE Is Unconstitutional.

Since FACE has the same defects and deficiencies which led the

Supreme Court to conclude in Lopez that the Gun-Free School Zones

Act was unconstitutional, I would hold that FACE is likewise

unconstitutional. It is not clear whether each of these four

distinctions, standing alone, would exclude legislation from the

third category of Commerce Clause legislation identified in Lopez.

As the Lopez Court itself noted, “[t]hese are not precise

formulations, and in the nature of things they cannot be.” Lopez,

514 U.S. at 567. However, the presence of all four of the abovedetailed factors in this case leaves no doubt that FACE is

unconstitutional.

III.

Because the majority concludes that the Commerce Clause gave

Congress the requisite authority to adopt FACE, they “pretermit the

substantially more questionable assertion of congressional

authority [under Section Five of the Fourteenth Amendment] to

criminalize purely private conduct (not directed at state property

or facilities).” Ante at 31. Since I would conclude that the

Commerce Clause does not permit Congress’s passage of FACE, and
57

since supporting FACE under Section Five of the Fourteenth

Amendment was clearly raised in this appeal, I am not at liberty to

pretermit the latter question. However, in light of wellestablished principles which were recently reaffirmed by the

Supreme Court’s decision in City of Boerne v. Flores, 117 S. Ct.

2157 (1997), I conclude that Section Five of the Fourteenth

Amendment does not empower Congress to enact FACE.

FACE purports to criminalize the conduct of private parties

for conduct which is not directed at state property or facilities.

Plainly, Section Five of the Fourteenth Amendment does not

contemplate the passage of such a law. It provides that “Congress

shall have the power to enforce, by appropriate legislation, the

provisions of this article.” U.S. CONST. amend. XIV, § 5. The

“provisions” which Section Five empowers Congress to enforce are

directed at the states. See U.S. CONST. amend. XIV, § 1 (“No State

shall . . . deprive any person of life, liberty, or property,

without due process of law . . . .”). As the Supreme Court made

clear in City of Boerne, Section Five of the Fourteenth Amendment

“did not authorize Congress to pass ‘general legislation upon the

rights of the citizen, but corrective legislation; that is, such as

may be necessary and proper for counteracting such laws as the

states may adopt or enforce, and which, by the amendment, they are

prohibited from making or enforcing.’” City of Boerne, 117 S. Ct.

at 2166 (quoting The Civil Rights Cases, 109 U.S. 3, 13-14 (1883)).

Section Five thus was not intended to confer on the federal

government a police power over all matters related to the
58

individual rights contemplated by the Fourteenth Amendment.

After City of Boerne, it is clear that acts passed pursuant to

Section Five must be remedial in nature. This is not the case with

FACE, which seeks to vindicate Fourteenth Amendment rights through

direct legislation affecting individual conduct, rather than by

providing a remedy for state violations. Thus, the enactment of

FACE cannot be justified as an exercise of the enforcement power

under the Fourteenth Amendment.

It is interesting to note that the same Congress which passed

FACE also passed the Religious Freedom Restoration Act of 1993, 107

Stat. 1488 (former 42 U.S.C. § 2000bb et seq.) (hereinafter,

“RFRA”), the statute at issue in City of Boerne. With each of

these laws, Congress was attempting to change through legislation

the result of a prior Supreme Court decision: with FACE, that prior

decision was Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263

(1993); and with RFRA, it was Employment Division v. Smith, 494

U.S. 872 (1990). Just as the Supreme Court in Lopez explained the

limits on Commerce Clause powers, so too did it in City of Boerne

explain the limitations on the powers bestowed by Section Five of

the Fourteenth Amendment. Both Lopez and City of Boerne reflect

what I believe to be a significant trend on the part of the Supreme

Court in articulating a renewed consciousness of the fundamental

principles of our Constitution, that is, that our federal

government is a government of limited powers, federalism has a

significant place in constitutional analysis, and the separation of

powers between the branches of the federal government must be
59

respected.

IV.

For these reasons, I respectfully dissent from the majority’s

conclusion that FACE is constitutional.