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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 99-5079, 99-5124, 99-5205

UNITED STATES OF AMERICA, Appellant in No. 99-5079

v.

JOSEPH R. GREGG; RUBY C. MCDANIEL; LUIS MENCHACA; FRANCIS S. PAGNANELLI; WILLIAM
CHARLES RAISER; MICHAEL HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE O'KEEFE; EVA ALVARADO; JOSEPH F. O'HARA; JOSEPH ROACH;
ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN C. ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS
MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTT

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA;
FRANCIS S. PAGNANELLI; WILLIAM RAISER; MICHAEL A. HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.
ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTTRose Kidd; James Sweatt; Elizabeth Wagi;

Raymond Micco; William Raiser; James Soderna; Kevin Blake; Baldo Dino; Appellants in No. 99-5124

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA; FRANCIS PAGNANELLI; WILLIAM RAISER; MICHAEL A.
HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.
ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTT

Francis S. Pagnanelli, Appellant in No. 99-5205

On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 97-cv-02020) District Judge: Honorable John C. Lifland

Argued: April 25, 2000

Before: BECKER, Chief Judge, WEIS and OAKES,* Circuit Judges.

(Filed: September 7, 2000)

___________________________________________________ ______________

* Honorable James L. Oakes, United States Circuit J udge for the Second Circuit, sitting by designation.

2FAITH S. HOCHBERG, ESQUIRE

United States Attorney
COLETTE R. BUCHANAN, ESQUIRE Assistant United States Attorney Federal Building, Suite 700

970 Broad Street Newark, NJ 07102-23535

BILL LANN LEE, ESQUIRE Acting Assistant Attorney General
DAVID K. FLYNN, ESQUIRE
JENNIFER LEVIN, ESQUIRE (ARGUED) Department of Justice Civil Rights Division

P.O. Box 66078 Washington, DC 20035-6078

Counsel for Appellants/ Cross-Appellees

EDWARD J. GILHOOLY, ESQUIRE (ARGUED)

14 Franklin Street Morristown, NJ 07960

Counsel for Appellee/ Cross-Appellant Francis S. Pagnanelli

MICHAEL C. PELLETIER, ESQUIRE 335 Route 24, P.O. Box 700 Chester, NJ 07930

Counsel for Appellee Eva Alvarado

RUSSELL J. PASSAMANO, ESQUIRE
65 Madison Avenue Morristown, NJ 07960

Counsel for Appellees/ Cross-Appellants William Raiser, Rose Kidd, James Soderna, James Sweatt, Elizabeth Wagi, Baldo Dino, Raymond Micco

3DONALD DESMOND CAMPBELL,

ESQUIRE

186 Sherman Avenue Berkeley Heights, NJ 07922

Counsel for Appellee Joseph O'Hara

RALPH COTI, ESQUIRE Herriot, Coti & Sugrue 36 West 44th Street, Suite 400 New York, NY 10036

Counsel for Appellee Joseph H.

Roach

WILLIAM C. CAGNEY, ESQUIRE
Lane & Mittendorf

99 Wood Avenue South Metro Corporate Campus I Iselin, NJ 08830

Counsel for Appellee Byron Adams

MICHAEL O. CUMMINGS, ESQUIRE Morgan, Finnegan, Pine, Foley & Lee

345 Park Avenue New York, NY 10154

Counsel for Appellee Kevin Blake

PETER M. BURKE, ESQUIRE Cooper, Rose, & English

480 Morris Avenue Summit, NJ 07901

Counsel for Appellee George Lynch

OPINION OF THE COURT

OAKES, Circuit Judge.

In this case, the United States appeals the decisio n of the District Court for the District of New Jersey (John C. Lifland, Judge) that the defendants are jointly and severally liable, rather than individually liable, for statut ory damages of $5,000 "per violation" of the Freedom of Access to Clinic

4Entrances Act ("FACE" or "the Act"), 8 U.S.C. S 248 (2000).

Several defendants filed cross appeals, arguing tha t FACE is a violation of Congress's authority under the U. S.
Constitution's Commerce Clause and of the First Amendment. We conclude that damages under FACE are properly awarded jointly and severally among defend ants and that FACE is constitutional. Accordingly, we af firm the

district court.

BACKGROUND

On April 18, 1997, the United States, through the U nited States Attorney General, filed a complaint for inju nctive relief and statutory damages against thirty defenda nts1 who, the Attorney General alleged, were an ongoing threat to the Metropolitan Medical Associates ("MMA"), a reproductive health clinic in Englewood, New Jersey , its employees and persons seeking reproductive health s ervices at MMA. Specifically, the Attorney General alleged that each defendant participated in one, two, or three protes ts that

obstructed access to MMA in violation of FACE. In t he prayer for relief in the Complaint, the Attorney Ge neral elected to pursue statutory damages of $5,000 per defendant in lieu of proving actual damages to MMA.

The district court held an evidentiary hearing on J uly 8- 10, 1997, on the Attorney General's motion for a preliminary injunction. The evidence at the hearing

demonstrated that five of the named defendants bloc ked access to MMA on August 7, 1996, twelve of the name d defendants blocked access to MMA on January 18, 199 7,

___________________________________________________ ______________

1. The defendants named in the complaint are Joseph R. Gregg, Ruby C. McDaniel, Luis Menchaca, Francis S. Pagnanelli, Wil liam Charles Raiser, Michael Henry, Rose Kidd, Arnold Matheson, Katharin e O'Keefe, Eva Alvarado, Joseph Roach, Robert Rudnick, James Soder na, James Sweatt, Elizabeth Wagi, Byron Adams, Kevin Blake, A my Boissonneault, Baldo Dino, Stephen C. Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis Green, George Lynch, Raymond Micco, Alexis Mulrenan , Ralph Traphagen, James Trott, and Kimiko Trott. The Attor ney General dismissed the charges against Mary Foley and her na me has been removed from the caption. They will be referred to in this opinion collectively as "the defendants" unless it is neces sary to provide names.

5and nineteen of the named defendants blocked access to

MMA on March 15, 1997. Accordingly, on December 22, 1997, the district court enjoined defendants and th eir employees, agents, and others acting in concert wit h them, from blocking and impeding access to MMA, intimidat ing or attempting to intimidate or interfere with persons seeking access to MMA, and entering or being on MMA premise s.

After the preliminary injunction was granted, the p arties informed the district court that they disagreed ove r the proper interpretation of the civil remedies availab le under FACE. At the district court's request, the parties submitted briefs addressed to the proper interpretation of st atutory damages under FACE. On June 18, 1998, after conside ring the parties' pleadings, the district court issued a memorandum wherein, rejecting the Attorney General' s argument that statutory damages should be assessed on each defendant per violation, it concluded that the $5,000 statutory damages were to be assessed per violation and that all defendants who participated in each violat ion would be held jointly and severally liable for $5,000.

On December 11, 1998, the district court granted th e Attorney General's motion for summary judgment and issued a Memorandum and Order Entering Final Judgment. See United States v. Gregg, 32 F. Supp. 2 d 151 (D.N.J. 1998). The district court found that the de fendants violated FACE when they conducted the three blockad es. See id. at 153-58. The district court determined th at Congress intended statutory damages of $5,000 to be assessed per violation and against all responsible persons severally. See id. at 160-61. Accordingly, the defe ndants were held jointly and severally liable for $5,000 i n statutory damages for each violation in which they participat ed. See id. at 161 (holding five defendants jointly and sev erally liable for the August 7 blockade, twelve defendants jointly and severally liable for the January 18 blockade, a nd eighteen defendants jointly and severally liable fo r the March 15 blockade).

The Attorney General timely appealed the district c ourt's decision and eight of the defendants2 cross appeale d. The

___________________________________________________ ______________

2. Rose Kidd, James Sweatt, Elizabeth Wagi, Raymond Micco, William Raiser, James Soderna, and Keven Blake filed a cros s appeal on

6Attorney General appeals that portion of the distri ct court's

decision that imposed the statutory damages jointly and severally. Defendants do not dispute the district c ourt's findings that they violated FACE. Rather, Defendant s contend that the Attorney General does not, under F ACE, have the authority to elect statutory damages in li eu of proof of actual damages. In addition, they argue th at FACE is an unconstitutional exercise of Congress's comme rce power and that it violates defendants' rights guara nteed

under the First Amendment of the Constitution.

DISCUSSION

We review the district court's award of summary judgment de novo. See Figueroa v. Blackburn, 208 F. 3d 435, 439 (3d Cir. 2000).

I.

The task of resolving how statutory penalties are t o be awarded under FACE is a question of statutory interpretation which begins by discerning the plain meaning of FACE's statutory penalty provision. If Congress's intent as to this issue is plain, referr al to other canons of statutory construction is unnecessary. Se e Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 64 ( 3d Cir. 1993); Chevron U.S.A., Inc. v. Natural Resources De fense Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is clear, that is the end of the matter[.] ").

To determine a law's plain meaning, we begin with t he language of the statute. See United States v. Ron P air Enterprises, Inc., 489 U.S. 235, 241 (1989); New Ro ck Asset Partners v. Preferred Entity Advancements, 101 F.3d 1492, 1498 (3d Cir. 1996); Santa Fe Medical Services, Inc . v. Segal (In Re Segal), 57 F.3d 342, 345 (3d Cir. 1995). If the language of the statute expresses Congress's intent with sufficient precision, the inquiry ends there and th e statute

___________________________________________________ ______________

February 18, 1999. Francis S. Pagnanelli filed a se parate cross appeal on February 18, 1999. Their arguments were consolidate d in one appellate

brief.

7is enforced according to its terms. See Ron Pair En terprises,

Inc., 489 U.S. at 241. Where the statutory language does not express Congress's intent unequivocally, a cour t traditionally refers to the legislative history and the atmosphere in which the statute was enacted in an a ttempt to determine the congressional purpose. See New Roc k, 101 F.3d at 1498. Once the plain meaning of the statute is determined, it is conclusive "except in rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its dra fters." Id. (quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 571 (1982)).

Section 248(a) of FACE, in relevant part, provides:

(a) Prohibited Activities. -- Whoever --

(1) by force or threat of force or by physic al obstruction, intentionally injures, intimida tes, or interferes with or attempts to injure, intim idate, or interfere with any person because that perso n is or has been, or in order to intimidate such person or any other person or any class of persons from, o btaining or providing reproductive health services

. . .

shall be subject to the . . . civil remedies provided in subsection (c)

18 U.S.C. S 248(a)(2000). FACE further prohibits th e intentional damage or destruction of a facility bec ause it provides reproductive health services. See id . Any person aggrieved by the foregoing actions may bring a civi l action for relief. See 18 U.S.C. S 248(a)(1)(A) (2000).

In any action under FACE, a person aggrieved by con duct prohibited under the Act, may obtain "temporary, preliminary or permanent injunctive relief and compensatory and punitive damages." 18 U.S.C. S 248(c)(1)(B) (2000). In addition, FACE allows a p laintiff in a civil action to elect, "in lieu of actual damages , an award of statutory damages in the amount of $5,000 per violation." 18 U.S.C. S 248(c)(1)(B) (2000). The Ac t permits the U.S. Attorney General and state attorneys gener al to bring civil actions for the same relief if they bel ieve that a

8person or group of persons has been aggrieved by vi olations

of the Act. See 18 U.S.C. SS 248(c)(2), (3) (2000); H.R. Rep. No. 103-306, at 13 (1993), reprinted in 1994 U.S.C. C.A.N. 699, 710. In civil actions brought by an attorney g eneral,

The court, to vindicate the public interest, may also assess a civil penalty against each responde nt --

(i) in an amount not exceeding $10,000 for a nonviolent physical obstruction and $15,000 for other f irst violations; and

(ii) in an amount not exceeding $15,000 for a nonviolent physical obstruction and $25,000 for any other subsequent violation.

18 U.S.C. S 248(c)(2)(B) (2000).

The Attorney General argues that the district court incorrectly awarded statutory damages per violation presumably to be shared by the defendants involved with each blockade and contends that FACE and its goals require statutory damages to be awarded $5,000 per defendant. We agree with the district court that th e "dichotomy of expression" between the civil remedy provisions of FACE demonstrates Congress's intent t hat statutory damages be imposed per violation and join tly and severally among the defendants who participated in the blockade. Gregg, 32 F. Supp.2d at 160; see also Mil waukee Women's Medical Services, Inc. v. Brock, 2 F. Supp. 2d 1172, 1178 (E.D. Wis. 1998) (awarding statutory dam ages per violation rather than per defendant); Greenhut v. Hand, 996 F. Supp. 372, 379 (D.N.J. 1998) (same); Planned Parenthood of Southeastern Pennsylvania, Inc. v. Wa lton, 1998 WL 88373 at *1-2 (E. D. Penn. Feb. 12, 1998) ( same).

In authorizing compensatory statutory damages of $5,000 in lieu of actual damages, Congress uses the phrase "per violation." 18 U.S.C. S 248(c)(1)(B). This is in sharp contrast to the language used in the provision perm itting courts to assess substantial civil penalties to vin dicate the public interest in cases brought by attorneys gener al. See 18 U.S.C. S 248(c)(2)(B). In S 248(c)(2)(B), an att orney general can request civil penalties of up to $25,00 0"against each respondent." Id. The language ofS 248(c)(2)(B)

9illustrates that Congress knew how to explicitly in struct a

court to assess damages per defendant rather than p er violation. The absence of analogous "per respondent " language in S 248(c)(1)(B) and the use instead of t he phrase "per violation" indicates that Congress carefully c onsidered the issue and decided that compensatory statutory damages will be imposed per violation, a manner tha t differs from the civil penalties imposed to vindica te the public interest.

We disagree with the Attorney General that the use of "whoever" in S 248(a) means that compensatory statu tory penalties are to be imposed individually. Section 2 48(a) defines the substantive liability under FACE. It do es not address how, under the Act, civil compensatory dama ges are to be awarded. The use of the singular in that provision thus does not overcome the specific "per violation" language in the relevant remedy provision of the Act. Thus, the statutory language indicates that Congress intended that compensatory statutory damages, like those imposed in this case, are awarded per violation, presumably to be s hared jointly and severally among the defendants who participated in the violation.

This interpretation is consistent with FACE's legis lative history and the atmosphere of anti-abortion violenc e in

which FACE was enacted. FACE was enacted in 1994 against a backdrop of escalating violence directed toward reproductive health clinics, their employees, and p atients. Both the House and Senate Reports set forth detaile d accounts of the virulent national campaign waged by antiabortion activists. See H.R. Rep. No. 103-306, U.S. C.C.A.N., at 699. The evidence before Congress demonstrated t hat "this campaign of violence has lead to death, injur y, harassment, fear, and thousands of arrests all acro ss the nation." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703. Congress also set forth findings that state and loc al authorities had proved inadequate, and sometimes unwilling, to curb the violence. See S. Rep. No. 10 3-117, at 17-18 (1993); H.R. Rep. No. 103-306, at 6, 10, U.S.C.C.A.N., at 703, 707 ("state and local enforce ment authorities have failed to address effectively the systematic and nationwide assault that is being waged against health

10care providers and patients."). Consequently, Congr ess

enacted FACE with substantial federal remedies to p revent the "use of blockades, violence and other forceful or threatening tactics against medical facilities and health care personnel who provide abortion-related service s. . . ." S. Rep. No. 103-117, at 2. In sum, FACE serves two important goals: First, federal remedies help compe nsate
individuals and health care facilities for the harm caused by blockades and, second, they serve to deter prote sters from repeatedly violating the law.

The Attorney General argues that Congress intended statutory damages to be assessed per individual so that punishment would be imposed with the result of dete rring defendants from violating FACE in the future. We ag ree with the Attorney General that deterrence is a prim ary goal of substantial federal penalties against clinic blo ckaders. This goal is well served by the availability of cri minal sanctions, punitive damages, and civil penalties. S ee 18 U.S.C. SS 248(b), (c). Congress explained, however, that the statutory penalties described in S 248(c)(1)(B) are available "in lieu of actual damages." According to the Senat e Report, they were included to ease the often difficult task of proving

actual loss in a case where anti-abortionists' tact ics close a clinic temporarily or interfere with a person's acc ess to reproductive health services. The senate report sta ted that statutory damages were included "[b]ecause of the e xpense and other difficulties of proving actual damages (f or example, a clinic's lost income)." S. Rep. No. 103- 117 at 26. Accordingly, the statutory penalties elected by the Attorney General in this case were included with the goal of compensating the victims of the misconduct prohibit ed by FACE. As the district court noted "[o]ne person can just as effectively injure, interfere with, or intimidate a s can a group, depending on the circumstances." Gregg , 32 F. Supp.2d at 160. Damages to compensate thus have no bearing on how many individuals caused the damage. Because the legislative history of FACE indicates t hat the purpose of the statutory damages is to compensate, it follows that Congress intended that compensatory st atutory damages be awarded per violation regardless of how many people participated in the misconduct.

11Finally, the Attorney General argues that joint and

several liability among defendants encourages indiv iduals to engage in large, rather than small, blockades. W ith joint and several liability, the Attorney General contend s, the total damages award "per violation" remains the sam e, yet the more persons who violate the law, the smaller t he amount each defendant must pay, thus perversely ten ding to encourage, rather than discourage, defendants to organize blockades using greater, rather than small er, groups of people.

We are not convinced that awarding compensatory statutory penalties per violation rather than per d efendant will cause defendants strategically to recruit more

defendants for each violation. Because of the wide variety of remedies available under FACE, clinic blockaders wi ll not know the penalties that they face for their miscond uct and be able to plan accordingly. They will not know bef ore the suit is filed whether an Attorney General or privat e plaintiff will opt for statutory damages in lieu of actual da mages. See 18 U.S.C. S 248(c)(1)(B). They will also not kn ow if they will be made subjects of a criminal prosecution and face criminal fines. See 18 U.S.C. S 248(b). Furthermore , in the case where an attorney general brings a civil actio n, he or she has the option of requesting that the court ass ess a civil penalty against each defendant in an amount a s great as $25,000 in an appropriate case. See 18 U.S.C. S 248(c)(2)(B). Moreover, joint and several liabili ty does not solely contemplate a group of liable defendants sha ring the award among them. A liability is joint and several when "the creditor may sue one or more of the parties to such liability separately, or all of them together, at h is [or her] option." Black's Law Dictionary 751 (5th ed. 1979). It is thus highly unlikely that a defendant or group of defendants would plan a clinic blockade or other vi olation of the Act in light of the penalty provisions under the Act. Because of the varying ways penalties under the Act may be assessed against a group of defendants involved in one violation, we are not convinced that the deterrent value of FACE is compromised by awarding the compensatory statutory damages jointly and severally as the Act plainly provides that they should be.

12In sum, we conclude that Congress intended FACE's

compensatory statutory damages be awarded per viola tion and jointly and severally among defendants. We base our conclusion primarily on Congress's use of "per viol ation" language in S 248(c)(1)(B) as opposed to the"per respondent" phrase in S 248(c)(2)(B). Furthermore, because Congress made statutory penalties available princip ally to ease the plaintiff 's burden of proving actual dama ges and other penalties to deter the misconduct prohibited by FACE are available, the $5,000 statutory damages are awa rded per violation and jointly and severally among the participating defendants.

II.

Defendants argue that the Attorney General may not elect statutory damages in lieu of actual damages. Their argument misapprehends the statute and is belied by the Act's legislative history. Under FACE, the Attorney General of the United States and a state attorney general m ay commence a civil action against an individual or in dividuals who engage in the conduct prohibited by the Act. Se e 18 U.S.C. S 248(c)(2). The Act provides that in an act ion initiated by an attorney general, "the court may aw ard appropriate relief, including temporary, preliminar y or permanent injunctive relief, and compensatory damag es to persons aggrieved as described in paragraph (1)(B). " 8 U.S.C. S 248(c)(2)(B) (emphasis added). Defendants contend that the phrase "compensatory damages" as used in S 248(c)(2)(B) refers only to actual damages and no t to statutory damages. However, S 248(c)(1)(B) defines compensatory damages as actual and statutory damage s. See 18 U.S.C. S 248(c)(1)(B). Thus, by using the te rm "compensatory damages" in S 248(c)(2)(B), Congress plainly meant to incorporate all of the text relevant to compensatory damages as set out in S 248(c)(1)(B). Therefore, the phrase "compensatory damages" as use d in S 248(c)(B) authorizes the attorney general to elec t an award of statutory damages.

Furthermore, the legislative history demonstrates t hat Congress intended that statutory damages be awarded in a civil action initiated by an attorney general. The House

13confirmed that "[t]he Act authorizes the U.S. Attor ney

General and State Attorneys General to bring civil causes of action on behalf of aggrieved persons for the same relief available in private actions; however, fees for att orney and expert witnesses may not be awarded to the United S tates." H.R. Rep. No. 103-106, at 3, U.S.C.C.A.N., at 700 (emphasis added). Because the relief available in p rivate actions includes statutory damages and Congress int ended that an attorney general be entitled to the same re lief as a private party, we reject the defendants' position t hat the Attorney General may not elect statutory damages in this

case.

III.

A. Commerce Clause.

We now turn to the question whether FACE falls with in Congress's power under Article I, S 8 of the United States Constitution. The Commerce Clause empowers Congress to "regulate Commerce . . . among the several states." U.S. Const., Art. I, S 8, cl. 3. Whether FACE is a prope r exercise of Congress's commerce power has been much discusse d in published opinions of United States Courts of Appea ls. Indeed, this is one of the last federal appellate t ribunals to address the issue. After considering most, if not a ll, of the arguments presented by the defendants in this case, these

courts held that FACE is valid under the Commerce C lause. See United States v. Hart, 212 F.3d 1067, 1074 (8th Cir. 2000); United States v. Weslin, 156 F.3d 292, 296 ( 2d Cir. 1998), cert. denied, 525 U.S. 1071 (1999); Hoffman v. Hunt, 126 F.3d 575, 582-88 (4th Cir. 1997), cert. denied, 523 U.S. 1136 (1998); United States v. Bird, 124 F.3d 6 67, 672- 82 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (19 98); Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C. Cir. 1996), c ert. denied, 520 U.S. 1264 (1997); United States v. Sode rna, 82 F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U. S. 1006 (1996); United States v. Dinwiddie, 76 F.3d 913, 91 9-21 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); Uni ted States v. Wilson, 73 F.3d 675, 679-88 (7th Cir. 1995), cer t. denied, 519 U.S. 806 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519- 22 (11th Cir. 1995). Today, this Circuit aligns wit h the decisions of its sister courts of appeals and holds that

14FACE is a proper exercise of Congress's Commerce Cl ause

power.

In United States v. Lopez, 514 U.S. 549, 558-59 (19 95), a decision aptly described by this Court as changin g the Commerce Clause landscape, see United States v. Par ker, 108 F.3d 28, 29 (3d Cir. 1997), the Supreme Court identified three broad categories of activity that Congress may regulate under its commerce power. Congress may : 1) "regulate the use of the channels of interstate com merce," Lopez, 514 U.S. at 558 (citations omitted); 2)"regu late and protect the instrumentalities of interstate commerc e, or persons or things in interstate commerce even thoug h the threat may come only from intrastate activity," Id. (citations omitted); and 3) "regulate those activities having a substantial relation to interstate commerce . . . i .e., those activities that substantially affect interstate com merce." Id. at 558-559 (citations omitted).

Although the judicial branch is the final arbiter o f the constitutionality of a statute, courts review a con gressional determination that it had the power to enact a part icular piece of legislation with substantial deference. Se e Parker, 108 F.3d at 30; United States v. Bishop, 66 F.3d 56 9, 576- 77 (3d Cir. 1995). It is not our job to "second-gue ss the legislative judgment of Congress" that blockades an d violence directed at reproductive health clinics ca n be regulated under the Commerce Clause power but, rath er, to ensure that Congress had a rational basis for that conclusion. Parker, 108 F.3d at 30 (quoting Bishop, 6 F.3d at 577). We hold that under Lopez and this Circuit' s precedent, FACE is a proper exercise of Congress's power to regulate intrastate conduct that, in the aggregate, has a

substantial effect on interstate commerce.3

In United States v. Morrison, ___ U.S. ___, 120 S. Ct. 1740, 1749-52 (2000), the Supreme Court's most rece nt communique on Lopez's third category of regulation, the Court provided a framework to determine whether a l aw

___________________________________________________ ______________

3. Because we determine that FACE is a proper regul ation of intrastate activity that has a substantial effect on interstat e commerce, we do not reach the Attorney General's argument that FACE is also a proper regulation of instrumentalities in commerce.

15regulates an activity that has a substantial effect on

interstate commerce. The Court identified four rele vant considerations. These are: 1) the economic nature o f the regulated activity, see id. at 1750; 2) a jurisdict ional element limiting the reach of the law to a discrete set of activities that additionally has an explicit connec tion with or effect on interstate commerce, see id. at 1750-5 1; 3) express congressional findings regarding the effect s upon interstate commerce of the activity in question, se e id. at 1751; and 4) the link between the regulated activit y and interstate commerce, see id. at 1751.

Morrison first asks a court to consider whether the federal law regulates intrastate economic or commer cial activity. See id. at 1750. In Morrison , the Suprem e Court noted, "In every case where we have sustained feder al regulation under Wickard's aggregation principle, t he regulated activity was of an apparent commercial character." Id. Accordingly, in Morrison, the Supre me Court invalidated the civil remedy provision of the Viole nce Against Women Act ("VAWA"), in part, because gender motivated crimes "are not in any sense of the phras e, economic activity." Id. at 1751. In contrast to gen dermotivated crime, the activity regulated by FACE-- t he physical obstruction and destruction of reproductiv e health

clinics and the intentional interference and intimi dation of persons obtaining and providing reproductive health services -- is activity with an effect that is econ omic in nature. Reproductive health clinics are income-gene rating businesses that employ physicians and other staff t o provide services and goods to their patients. Motiv ated by anti-abortion sentiment, the primary goal of indivi duals and groups engaged in the misconduct prohibited by FACE is to temporarily and permanently interrupt the operation s of reproductive health facilities and prevent individu als from accessing their services. See S. Rep. No. 103-117, at 11; H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. Congress found that the violent and obstructive act s directed at reproductive health facilities had caus ed millions of dollars of damage and forced clinics to close, caused serious and harmful delays in the provision of medical services and intimidated a number of physic ians from offering abortion services. See S. Rep. No. 10 3-117, at

1614; H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., at 7 04. The

effect of the conduct proscribed by FACE is to dete r, and in some cases to stop completely, the commercial activ ity of providing reproductive health services. We thus hol d that although the connection to economic or commercial a ctivity plays a central role in whether a law is valid unde r the Commerce Clause, we hold that economic activity can be understood in broad terms. Pursuant to this princip le, unlike the activity prohibited by VAWA, the miscond uct regulated by FACE, although not motivated by commer cial concerns, has an effect which is, at its essence, e conomic. See Weslin, 156 F.3d at 296 (threats of violence th at have the effect of deterring commercial activity is prop erly regulated under commerce clause); Hoffman, 126 F.3d at 587 (activity regulated by FACE, while not itself e conomic or commercial, "is closely and directly connected w ith an economic activity . . . therefore . . . we cannot c onclude that FACE has nothing to do with commerce or any sort of economic enterprise"); Dinwiddie, 76 F.3d at 921 (" FACE prohibits interference with a commercial activity-- the provision and receipt of reproductive health servic es."); Cheffer, 55 F.3d at 1520 ("the Access Act does regu late commercial activity, the provision of reproductive health services.").

Morrison next instructs a court to consider the exi stence of a jurisdictional element. 120 S. Ct. at 1750-51. "A jurisdictional element . . . refers to a provision in a federal statute that requires the government to establish s pecific facts justifying the exercise of federal jurisdicti on in connection with any individual application of the s tatute." United States v. Rodia, 194 F.3d 465, 471 (3d Cir. 1999), cert. denied, ___ U.S. ___, 120 S. Ct. 2008 (2000). FACE does not contain an explicit jurisdictional element establishing that the federal cause of action is in pursuance of Congress's power to regulate interstate commerce

. Although such an element would certainly lend suppo rt to
the conclusion that FACE is tied to interstate comm erce, we conclude that it was not necessary for Congress exp licitly to limit the civil remedy provision in the case of reg ulating anti-abortion activity directed at reproductive hea lth clinics that are, by definition, directly engaged in the bu siness of providing reproductive health services. See Bird , 124 F.3d

17at 675 (reasoning that a jurisdictional element is" not

always a necessary" method to ensure that Congress does not exceed its commerce power).

Morrison also directs that the existence of congres sional findings on the burden of the regulated activity on interstate commerce "may enable [a court] to evalua te the legislative judgment that the activity in question substantially affects interstate commerce." Morriso n, 120 S. Ct. at 1752 (quoting Lopez, 514 U.S. at 563). Congr ess's conclusion that the activity proscribed by FACE bur dens

interstate commerce is a conclusion derived from mo nths of legislative hearings, research, and debate. The Sen ate Judiciary Committee and the House Committee on Labo r and Human Resources which considered the legislatio n before it became law submitted extensive reports on the necessity of FACE. See Bird, 124 F.3d at 678. Thus, Congress's conclusion that FACE is constitutional i s entitled to judicial deference. See Parker, 108 F.3 d at 29.

Finally, in accordance with the fourth factor of Mo rrison, the findings set forth in the House and Senate Comm ittee Reports demonstrate that Congress had a rational ba sis upon which to conclude that the activities governed by

FACE have a substantial effect on interstate commer ce. As set out in detail below, the findings show that a n ational

market for abortion-related services exists in this country and that reproductive health clinics are directly e ngaged in interstate commerce. The findings further demonstra te that a national movement engaged in the activities prosc ribed by FACE has decreased the availability of abortion-rel ated

services in the national market and caused women se eking services and physicians providing services to trave l interstate. Accordingly, the activity proscribed by FACE has

a substantial effect on the interstate commerce of reproductive health services.

The legislative record establishes that a shortage of abortion-related services exists in this country th at is exacerbated by the misconduct proscribed by FACE. S ee S. Rep. No. 103-117, at 17. Only 17 percent of countie s in the United States have an abortion provider. See H.R. R ep. No. 103-306, at 8, U.S.C.C.A.N., at 705. This leaves 83 percent of counties without a physician willing to perform

18abortions. See S. Rep. No. 103-117, at 17 & n.29. T he

shortage is most severe in rural counties because reproductive health clinics are located primarily i n metropolitan areas, leaving women residing in rural areas without a provider of these services. See H.R. Rep. No. 103- 306, at 8, U.S.C.C.A.N., at 705. In a rural communi ty, only one provider usually exists in a large geographical area, thus making it a preferred target for anti-abortion ists because elimination of that provider eliminates abo rtion services for all women in that area. See H.R. Rep. No. 103- 306, at 8, U.S.C.C.A.N., at 705.

The shortage of abortion-related services has resul ted in a national market for these services because many o f the patients must engage in interstate commerce by trav eling from one state to obtain reproductive health servic es in another. Testimony and evidence before Congress sho wed

that substantial numbers of women travel interstate to seek the services of reproductive health clinics. See S . Rep. No. 103-117, at 31; H.R. Rep. No. 103-603, at 6, U.S.C. C.A.N., at 703. Many patients travel over 100 miles to thei r appointments. See S. Rep. No. 103-117, at 17 & n.29 . For one example, Ms. Sylvia Doe, who testified before C ongress that after learning her baby suffered from a perman ent disability that would cause its early death, travel ed from Virginia to a clinic in Kansas capable of performin g the procedure she required. See H.R. Rep. No. 103-306, at 7-8, U.S.C.C.A.N, at 704-5. Furthermore, the Senate foun d that 44 percent of the patients treated at a clinic in W ichita, KS, are from out of state. See S. Rep. No. 103-117, at 31. Congress's determination that reproductive health s ervices are an interstate market was well supported by the testimony presented to the committees. See Bird , 1 24 F.3d at 668-79 (setting forth a summary of testimony).

In addition, reproductive health clinics employ a n ational market of physicians and staff. Because of the shor tage of physicians willing to perform abortions in the age of clinic violence, doctors employed at reproductive health c linics often travel across state lines to provide abortion services. See S. Rep. No. 103-117, at 31 & n.46. "Some doctor s traveled to several states, some for hundreds of mi les, to perform abortions at clinics which had no physician s of

19their own." Id. For example, in South Dakota the on ly

physician who performs abortions commutes from Minnesota and provides abortion services in Minneso ta, Montana, North Dakota, and parts of Canada. See id. at 16-17 & n. 29, 31.

The Senate Committee also concluded that reproducti ve health clinics engage in interstate commerce. The Committee reported that

Clinics and other abortion service providers clearly are involved in interstate commerce, both direct ly and indirectly. They purchase medicine, medical supplies, surgical instruments and other necessary med ical products, often from other States; they empl oy staff; they own and lease office space; they genera te income. In short, the Committee finds that they oper ate within

the stream of interstate commerce.

S. Rep. No. 103-117, at 31. Thus, Congress found th at a national market existed for reproductive health ser vices because of the shortage of physicians who provide a bortionrelated services, that reproductive health clinics often employ physicians from outside the state in which t hey are located, and reproductive health clinics themselves are engaged in interstate commerce.

Finally, Congress determined that the conduct prohi bited by FACE inhibits and prohibits the delivery of repr oductive

health care services in the national market. Based on the testimony and evidence before it, Congress found th at the clinic blockades, the threats against employees, an d the other violent and obstructive activities prohibited by FACE have the single goal of eliminating the practice of abortion by closing abortion clinics. See S. Rep. No. 103-11 7, at 11; H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703. Congress also, based on the evidence before it, rat ionally

determined that the national movement was succeedin g. The House Report stated that the "campaign of viole nce has led to death, injury, harassment, fear, and thousan ds of arrests all across the nation. It has resulted, as intended, in access to the constitutionally protected right t o choose being denied to thousands of women nationwide again st their will." H.R. Rep. No. 103-306, at 6, U.S.C.C.A .N., at

20703. The Senate Report states that clinic blockades and

violent protests proscribed by the Act have "a sign ificant adverse impact not only on abortion patients and pr oviders, but also on the delivery of a wide range of health care services." S. Rep. No. 103-117, at 14. The effect o f the violence forced "clinics to close, caused serious a nd harmful delays in the provision of medical services, and in creased health risks to patients." Id.

Furthermore, when FACE was enacted, millions of dol lars of damage had been caused to these facilities by th e clinic blockades. See H.R. Rep. No. 103-306, at 7, U.S.C.C .A.N., at 704. The damage caused to reproductive health ca re facilities eliminates on a temporary or permanent b asis the reproductive health care services that are provided by the facilities. See id. at 9, U.S.C.C.A.N., at 706. Thu s, the activities proscribed by FACE inhibit the operation of entities that are directly engaged in interstate co mmerce.

Congress explicitly noted the link between the abor tionrelated violence and the shortage of physicians wil ling to perform abortions. A number of physicians and healt h care personnel have been intimidated by the threats of v iolence made to them and their families and have stopped providing their services, thus contributing to the shortage of providers. The House Committee found that rural clinics and doctors have become the preferred targets for a bortion foes because elimination of that single provider ef fectively eliminates service for many women. See id. at 8, U.S.C.C.A.N., at 705. The Senate Committee also rep orted

that the violence "has . . . taken a severe toll on providers, intimidated some into ceasing to offer abortion ser vices, and contributed to an already acute shortage of qua lified abortion providers." S. Rep. No. 103-117, at 14. Specifically, "some providers have succumbed to the

intimidation and threats." Id. at 17. At least thre e physicians in Dallas stopped performing abortions i n 1992 as a result of pressure by an anti-abortion group, two doctors stopped working in 1993 after receiving dea th threats, and since Dr. Gunn, an abortion-provider i n Florida, was shot in 1993, at least eight more doct ors have stopped offering abortion services. See id. at 16-1 7. The House Committee also reported that the shortage of

21abortion providers is "at least partially attributa ble to the

violence and intimidation described in this report. Doctors understandably are leaving the field, and new gradu ate[s] have little desire to enter the field even as part of a wider obstetrics/gynecology practice." H.R. Rep. No. 103- 306, at 8, U.S.C.C.A.N., at 705.

Moreover, although under Lopez Congress may regulat e intrastate activity that in the aggregate has an ef fect on interstate commerce, the anti-abortion movement its elf whose conduct is regulated by FACE is national in s cope. Congress found that many of the activities were org anized and directed across state lines. See S. Rep. No. 10 3-117, at 13, 14 & n.26; H.R. Rep. No. 103-306, at 9, U.S.C.C .A.N., at 706. The House reported that a national strategy has emerged, orchestrated by anti-abortion leaders. See H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. Congr ess found that the conduct regulated by FACE was beyond the control of local and state authorities. Thus, when it enacted FACE, Congress sought to regulate a truly national problem.

In sum, due to the acute shortage of abortion-relat ed services in this country and the resulting national market for abortion-related services, the conduct proscrib ed by

FACE -- the commission of blockades and other acts of

violence -- has a substantial effect on the availab ility in interstate commerce of reproductive health services . The effect of the misconduct is to deter physicians fro m providing further services and temporarily and perm anently to shut down reproductive health clinics, thus forc ing large

numbers of women to travel across state lines to ob tain services. We, thus, must agree with the testimony b efore the Senate that,

the shift of demand for abortion services fr om those

areas where clinic access is obstructed to t hose areas where it is not represents the sort of inter state commerce effect that is beyond the effective control of any one state and is accordingly a proper su bject for congressional regulation under the Commerce Clause.

22Bird, 124 F.3d at 681 (quoting Senate Hearings, at 97

(statement of Professor Tribe)).4

Our determination that FACE regulates activity that has a substantial effect on interstate commerce is supp orted by Supreme Court cases young and old. Recently, in Jon es v. United States, ___ U.S. ___, 120 S. Ct. 1904, 1909 (2000), the Supreme Court considered whether the arson of a n owner-occupied residence not used for any commercia l purposes qualified as arson of property used in int erstate commerce within the meaning of the federal arson st atute. The Court held that arson of a private dwelling was beyond the reach of federal commerce power to criminalize arson. See id. at 1911. To determine, however, whether the arson of a particular facility is a commerce-affecting ac t, the Court instructed that "[t]he proper inquiry .. . is into the function of the building itself, and then a determi nation of

whether that function affects interstate commerce." Id. at

___________________________________________________ ______________

4. We respectfully register our disagreement with t he dissent. The

dissent characterizes the connection between clinic blockades and

interstate commerce as the same attenuated "but-for -causal chain" between gender-motivated crimes and interstate comm erce rejected by the Court in Morrison. This view narrowly focuses o n the activity regulated by FACE in the abstract and fails to ackn owledge the national market for reproductive health services in this cou ntry. Congress determined that the abortion provider shortage in t he United States has

resulted in a national market for abortion services . In this context,

abortion-related violence committed to close down a reproductive health clinic or deter a woman from accessing its services has a direct effect on

interstate commerce. Abortion-related violence in t he specific context of a national market for reproductive services simply cannot be compared to gender-motivated crime -- the activity regulated by VAWA. Given the national market for abortion services, the nexus be tween the activity regulated by FACE and interstate commerce is direct

.

The dissent also relies on a comparison of anti-abo rtion violence to rape, robbery, and trespass to conclude that anti-a bortion violence is a local problem properly regulated by the anti-aborti on movement. This comparison fails to acknowledge the motivation of t he anti-abortion movement. Although the individual tactics of anti-a bortion activists may have similar characteristics as common law crimes, the comparison ends there. As Congress found, the anti-abortion movemen t targets specifically a branch of commerce that operates in a national market. Hence, anti-abortion violence is a national, rather than a local, problem.

231910. Here, the facilities blockaded and temporaril y or

permanently closed by the activities of anti-aborti on protestors are businesses that provide reproductive health services and are directly involved in interstate co mmerce. Thus, under the functionality test provided in Jone s, the blockading and destruction of reproductive health c linics, just like the arson of a commercial building, is a commerceaffecting activity and therefore properly regulated by Congress.

In Atlanta Motel v. United States, 379 U.S. 241, 25 0-58 (1964), the Supreme Court upheld Title II of the Ci vil Rights Act of 1964 as a proper regulation of an activity t hat affects commerce. The holding was premised on the conclusio n that discrimination in restaurants results in servi ng fewer customers, therefore adversely affecting interstate commerce. Here, given Congress's specific findings that there exists a national market for reproductive hea lth services suffering from a shortage in services, the effect of temporarily and permanently shutting down reproduct ive health clinics that are often frequented and staffe d by people crossing state lines has a direct effect on interstate commerce under the reasoning presented in Atlanta M otel.

In sum, we conclude that the activity regulated by FACE
is economic in nature. We further determine that du e to the national nature of reproductive health services and antiabortion protests, the civil penalty provision is w ithin the boundaries of Congress's power to regulate intersta te commerce. Applying the deference that is due Congre ss's findings, see Parker, 108 F.3d at 30-31, we further conclude that, unlike the statutes reviewed in Lope z and Morrison, FACE regulates conduct that Congress had a rational basis to conclude has a direct and substan tial effect on interstate commerce. We hold, therefore, that FACE falls within the scope of congressional author ity under the Commerce Clause as a legitimate regulatio n of activity having a substantial effect on interstate commerce.

B. First Amendment.

Finally, we join the decisions of the courts of app eals that FACE does not regulate speech and expression protec ted by the First Amendment. See Hart, 212 F.3d at 1071-73;

24United States v. Balint, 201 F.3d 928, 934-36 (7th Cir.

2000); Weslin, 156 F.3d at 296-98; United States v. Wilson, 154 F.3d 658, 662-64 (7th Cir. 1998), cert. denied, 525 U.S. 1081 (1999); Hoffman, 126 F.3d at 588-89; Bird , 124 F.3d at 683-84; Terry, 101 F.3d at 1418-22; Soderna , 82 F.3d at 1374-77; Dinwiddie, 76 F.3d at 921-24; Chef fer, 55 F.3d at 1521-22. These courts have thoroughly addre ssed the arguments presented by Defendants in this case and we are in full agreement with their decisions. For thi s reason, we do not expound on our analysis of these claims.

Defendants first argue that FACE is a view-point ba sed restriction on speech and expressive conduct that i s protected under the First Amendment. FACE is not vi ewpoint based. The language of the statute and the le gislative history demonstrates that FACE governs all individu als and groups that obstruct the provision of reproductive health services and religious worship. The purpose of FACE was to protect clinics, their staff, and patients from the harm suffered when their right to provide and receive reproductive health services was interfered with. T he law applies equally to all who interfere with the provi sion of these services, regardless of the motivation for th e conduct. See Weslin, 156 F.3d at 296-97; Dinwiddie, 76 F.3d at 923;

see also Pro-Choice Network of Western New York v. Schenck, 67 F.3d 377, 386 (2d Cir. 1995) (en banc), aff 'd in part, 519 U.S. 357 (1996) (holding that because the purpose of an injunction enjoining a group of anti- abortion protestors was to prevent the harm that prospective patients would suffer if the anti-abortionists' act ivities continued, the injunction was content neutral). Thu s, Congress did not pass FACE because of disagreement with the message of anti-abortionists. Accord Hill v. Co lorado, 120 S. Ct. 2480 (2000) (holding Colorado law that m akes it unlawful for any person within 100 feet of a health care facility's entrance to knowingly approach within ei ght feet of another person without that person's consent is a c ontentneutral restriction). Because FACE prohibits conduc t regardless of the view-point of the actor, FACE doe s not
discriminate on the basis of content.

Furthermore, FACE, which is view-point neutral, gov erns conduct not speech. See Terry, 101 F.3d at 1418-19;

255. Defendants also argue that because the Attorney General described

the actions of lawful protesters in its appellate b rief, FACE, as applied

in this case, is unconstitutionally vague and overbroa d. This argument is

without merit. Hoffman, 126 F.3d at 588; Cheffer, 55 F.3d at 1521. By its very terms, FACE regulates "force," "threat[s] of f orce," or "physical obstruction." 18 U.S.C. S 248(a). Activit ies that injure, threaten, or obstruct are not protected by the First Amendment, whether or not such conduct communicates a message. See Wilson, 154 F.3d at 663; Terry, 101 F. 3d at 1418-19. Although the conduct may have "expressive components," this does not exempt it from governmen tal prohibition. Weslin, 156 F.3d at 297. We hold that FACE is a valid restriction of conduct that has an expressi ve component under the three-part test in United State s v. O'Brien, 391 U.S. 367, 376-82 (1968). FACE serves t he important governmental interest in ensuring public safety and a woman's right to seek reproductive health ser vices; this interest is unrelated to the suppression of fr ee speech; and FACE is narrowly tailored to meet these ends. S ee Weslin, 156 F.3d at 297-98; Terry, 101 F.3d at 1419 -20.

FACE is therefore constitutional under O'Brien . Accordingly, we hold that FACE is constitutional un der the

First Amendment.5

CONCLUSION

Therefore, we conclude that compensatory sta tutory damages under FACE are properly awarded per violati on and jointly and severally among defendants who participated in the violation. Furthermore, we join our sister circuits and hold that FACE is a constitutio nal exercise of Congress's commerce power and does not violate

the First Amendment. The District Court is affirmed

.

26WEIS, Circuit Judge, Dissenting.

Were I to reach the damages issue in this case, I w ould agree with the majority's conclusion that defendant s are liable on a joint and several basis per incident, a nd not per individual. Obviously, if the government had sought actual damages, it would have been restricted to recoverin g an amount proven at trial, and that sum could be recov ered only once. The fact that Congress provided for stat utory damages as an alternative to establishing the actua l loss does not change the nature of the compensation, nor make

it cumulative.

However, I differ with the majority in its conclusi on that FACE survives constitutional scrutiny. I am aware t hat seven Courts of Appeals have upheld the constitutio nality

of the Act. Some of these decisions were made over dissents arguing that FACE could not be sustained under the analysis in United States v. Lopez, 514 U.S. 549 (1 995). Although the Courts of Appeals opinions considered Lopez, they essentially treated it as a narrow holding tha t did not

affect measures such as FACE.

Doubts that Lopez had application beyond its unique factual setting, however, were dissipated by the ex pansive holding in United States v. Morrison, 120 S. Ct. 17 40 (2000). There, the Court revisited the question of Congress' power under the Commerce Clause to legislate on mat ters traditionally within the province of the States. Se tting aside portions of the Violence Against Women Act, the Cou rt wrote that "[w]e accordingly reject the argument th at Congress may regulate non-economic, violent crimina l conduct based solely on that conduct's aggregate ef fect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local." Id. at 1754. Continuing, the Court said, "w e can think of no better example of the police power, whi ch the Founders denied the National Government and reposed in the States, than the suppression of violent crime a nd

vindication of its victims." Id.

Together, Lopez and Morrison mandate limits to the federalization of local crime under the aegis of th e Commerce Clause. FACE, like the Gun-Free School Zon es

27Act and the Violence Against Women Act, is an examp le of

congressional intrusion into criminal law tradition ally within the province of the States. These statutes a re similar

in that "neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute[s] has an evident commercial nexus." Lopez, 514 U.S. at 580 (Kennedy, J., concurring).

Considered alone, these statements clearly raise th e likelihood that FACE is unconstitutional. Upon more detailed review, it becomes clear that Morrison pe rmits no

other conclusion.

As the majority here observes, the Supreme Court ha s identified three categories of activities that Cong ress may regulate under the Commerce power: first, the use o f channels of interstate commerce; second, the instrumentalities of interstate commerce or persons or things in interstate commerce, even though the thre at may come only from intrastate activity; and third, acti vities that substantially affect interstate commerce. Morrison, 120 S.

Ct. at 1749. No contention has been made that thefi rst category is involved here, and the Courts of Appeal s that have considered the constitutionality of FACE have generally upheld the Act under the third category. For this reason, I will begin with a discussion of that poin t.

I. Regulation of Activities

Having a Substantial Relation To Interstate Commerc e

In determining whether Congress may properly regula te an activity under the third Commerce Clause classif ication, Lopez and Morrison present considerations that can be distilled into the following four questions:

1) Is the activity of an apparent commercial character;

2) Does the statute contain an express juris dictional element that may establish a connection with interstate

commerce;

3) Are there congressional findings that ill uminate a reasonable legislative judgment that the act ivity

28substantially affects interstate commerce, a lthough

such an effect is not "visible to the naked eye"; and

4) Is there a link between the activity and a substantial

effect on interstate commerce that is not so attenuated that the federal-state balance is destroyed?

See Morrison, 120 S. Ct. at 1749-52 & n.4; Lopez, 5 14 U.S.

at 559-68. These considerations will be examined in turn.

A. The Activity is Not Commercial

FACE is drafted to prohibit specific conduct outsid e reproductive health clinics. It provides in relevan t part:

(a) Prohibited activities. -- Whoever --

(1) by force or threat of force or by physic al obstruction, intentionally injures, intimida tes or interferes with or attempts to injure, intim ate or interfere with any person because that perso n is or has been, or in order to intimidate such per son or any other person or any class of persons fro m, obtaining or providing reproductive health s ervices;

. . . .

(3) intentionally damages or destroys the pr operty of a facility, or attempts to do so, because su ch facility provides reproductive health services . . .

shall be subject to the penalties provided i n subsection (b) and the civil remedies provided in subse ction (c)

. . . .

18 U.S.C. S 248.

The services provided by abortion clinics are clear ly commercial in nature, conducted as they are in exch ange for money. But these services are not the activitie s targeted by the legislation. FACE prohibits third parties fr om interfering with patients and staff entering aborti on clinics, as well as from inflicting damage to the property i tself. By its plain language, the statute is directed against the conduct of those external to a clinic's operations.

As the proscribed activity, a protestor's conduct d oes not involve a purchase, sale, or any exchange of value in return

29for the rendering of a service, and cannot in any s ense be

deemed economic or commercial in character. Althoug h blockades may reduce a clinic's revenue, the prohib ited conduct is fundamentally criminal in nature and doe s not fit easily within the category of commercial activi ty.

The fact that criminal conduct may also have financ ial effects does not transform that activity into one c ommercial in nature. Murder and robbery have monetary consequences, but that does not transform criminal codes into commercial regulation. Morrison made it clear that the nature of the activity to be restricted is determin ed by an examination of the conduct itself, and not by such external factors as financial effects, which are one step re moved from the statute's focus. Morrison, 120 S. Ct. at 1 750.

In both Lopez and Morrison, thefinancial effects of the prohibited conduct were not disputed. Justice Breye r outlined in his Lopez dissent the "obvious" links b etween the economy and gun violence. Lopez, 514 U.S. at 61 9-22 (Breyer, J., dissenting). Justice Souter's dissent in Morrison cited a Senate report from the legislative history that estimated the impact of violent crimes against wome n to be, at minimum, $3 billion annually. Morrison, 120 S. C t. at 1762 (Souter, J., dissenting). The Court nonetheles s concluded in Lopez that the Gun-Free School Zones A ct was "a criminal statute that by its terms has nothi ng to do with `commerce' or any sort of economic enterprise, " Lopez, 514 U.S. at 561, and said in Morrison that"[g]ender motivated crimes of violence are not, in any sense of the phrase, economic activity." Morrison, 120 S. Ct. at 1751.

It is apparent that the Court examined the prohibit ed

conduct without reference to its economic effects. Courts reviewing FACE should employ a similarly discipline d analysis.

When considering the limits of congressional power, the Court has adopted a "practical conception of commer cial regulation." Lopez, 514 U.S. at 574 (Kennedy, J., concurring); see also Morrison, 120 S. Ct. at 1750 (quoting Lopez). But to sustain FACE, courts must reject tha t concept. The statute does not resemble a commercial regulation, but instead a typical exercise of a sta te's police

30power: prohibiting trespass, intimidation, and viol ence; and

providing criminal sanctions as well as injunctions

.

The threshold inquiry articulated in Lopez and repe ated in Morrison is consistent with the Court's prior Co mmerce Clause decisions. As the Court wrote, "thus far in our Nation's history our cases have upheld Commerce Cla use regulation of intrastate activity only where that a ctivity is economic in nature." Morrison, 120 S. Ct. at 1751. Two cases cited by the Court in that context provide a useful contrast to the present dispute.

In Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 261-62 (1964), and the parallel case of Katzen bach v. McClung, 379 U.S. 294, 305 (1964), the Court upheld legislation requiring hotels and restaurants to mak e accommodations open to black patrons as well as whi te. The regulated enterprises were clearly within Morri son's definition of economic activity. It was the hotelie rs and restauranteurs themselves, in the operation of thei r business, who had to alter their conduct in order t o comply with the law. The legislation did not apply to thir d parties whose conduct may or may not have been commercial.

FACE does not in any way control the operation of a clinic in its procedures or selection of patients. That distinction, as well as the lack of a jurisdictiona l element, separates FACE from the Civil Rights legislation up held in

Heart of Atlanta and Katzenbach.

To cavalierly dismiss the traditional distinctions between criminal and commercial conduct is to "downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis." Morrison, 120 S. Ct. at 1750. Both Lopez and Morrison made the inquiry into commercial character a key element to their holding s. In the present case, the only reasoned answer to the q uestion of whether the blockading is commercial in characte r must be in the negative.

B. The Act Contains No Jurisdictional "Hook"

A jurisdictional element in a statute serves to def ine the limits of the regulated activity. Including such a

31requirement assures that the legislation is directe d toward

a defined scope of conduct, one more apt to be with in the reach of the commerce power granted to Congress. Se e United States v. Bishop, 66 F.3d 569, 594 (3d Cir. 1995) (Becker, Ch.J., concurring in part and dissenting i n part). A statutorily required proof of connection with int erstate commerce mandates a case-by-case inquiry.

Stressing the redemptive power of such an element, the Court in Lopez discussed United States v. Bass, 404 U.S. 336 (1971), where it circumspectly read federal gun legislation to require a nexus with interstate comm erce. Lopez, 514 U.S. at 562. In Bass, the Court chose to avoid a potential constitutional infirmity in this fashio n because " `unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-st ate balance.' " Id. (quoting Bass, 404 U.S. at 349). Si milarly, Jones v. United States, 120 S. Ct. 1904, 1908, 1910 (2000), carefully interpreted an arson statute so as not to apply to all private residences and thus avoided the constit utional issues, despite interstate connections in the forms of a mortgage, an insurance policy and the use of natura l gas.

But in FACE, there is no such ambiguity. Indeed, it appears that Congress simply sought to extend a"rem edy over a wider, and more purely intrastate, body of v iolent crime." Morrison, 120 S. Ct. at 1752. Without a jurisdictional clause to provide a case-by-case lim itation,

the Act's reach becomes vulnerable to a Constitutio nal challenge.

Because FACE lacks the jurisdictional element, the government in this case was not required to establi sh any

connection with interstate commerce. It was not nec essary to show that interstate travel was hindered or affe cted, that equipment or furnishings were purchased in intersta te commerce, or that any of the other jurisdictional i ndicia that have been used in statutes that have passed

constitutional muster were satisfied. All that the government had to show was that a clinic, even if a purely local enterprise, was being blockaded. The prosecut or thus had almost unlimited discretion to intervene in a p urely

local disturbance.

32The preservation of the constitutional allocation o f power

between state and federal governments is a serious concern for both the legislative and judicial branches. Inc luding a jurisdictional requirement in a statute is one way Congress can demonstrate that it recognizes this important i ssue and has acted in light of that knowledge.

The absence of a jurisdictional clause in FACE is a fatal flaw, one that is not cured by the congressionalfin dings

that will be discussed next.

C. The Legislative Findings Are Inadequate

Unlike Lopez, but like Morrison, FACE's legislative history contains congressional findings. As a result of hea rings, Congress alleged in Committee reports and in floor debates that patients and doctors travel interstate for abo rtions;

that local authorities were sometimes unable to con trol violence at abortion clinics; and that obstructioni st tactics had caused losses in the millions of dollars, cause d clinics to close, and had intimidated physicians as well as patients. Based on anecdotal evidence, Congress dec ided that federal intervention authorized by the Commerc e Clause and section 5 of the Fourteenth Amendment wa s appropriate.

On several occasions, we have said that congression al findings are entitled to judicial deference and tha t it is not our role to " `second-guess the legislative judgmen t of Congress.' " United States v. Parker, 108 F.3d 28, 30 (3d Cir. 1997) (quoting Bishop, 66 F.3d at 577). Accord ingly, all that was required of a reviewing court was to ensur e that Congress had a rational basis for its legislation. Id.

However correct that approach may be in other setti ngs, it can no longer be said that such substantial defe rence is due in cases assessing the limits of congressional power under the Commerce Clause. In Morrison, the Court s tated that "the existence of congressional findings is no t sufficient, by itself, to sustain the constitutiona lity of Commerce Clause legislation." Morrison, 120 S. Ct. at 1752. Whether the effect upon interstate commerce is subs tantial enough to make Congress' exercise of power under th e

33Commerce Clause appropriate "is ultimately a judici al

rather than a legislative question." Id.

As the basis for concluding that blockades have a substantial effect upon interstate commerce, Congre ss reasoned that obstructions that deter patients from going to a clinic caused diminished business for the enterpr ise. In some cases, when clinics closed, women were require d to travel, perhaps interstate, to obtain the services of another

establishment.

This is the very same "but-for causal chain" of log ic that the Court explicitly rejected in Morrison. Id. at 1 752-53. If every attenuated effect upon interstate commerce st emming

from an occurrence of violent crime satisfied the substantial effects test, then Congress could "regu late any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, produc tion, transit, or consumption." Id.

The opinions of the Courts of Appeals that have uph eld FACE all rely heavily on the legislative history fo r concluding that a substantial effect on interstate commerce existed. See United States v. Weslin, 156 F.3d 292, 296 (2d Cir. 1998); United States v. Bird, 124 F.3d 666, 67 8 (5th Cir. 1997); Terry v. Reno, 101 F.3d 1412, 1415-16 ( D.C. Cir. 1996); United States v. Dinwiddie, 76 F.3d 913 , 920-21 (8th Cir. 1996); United States v. Wilson, 73 F.3d 6 75, 681 (7th Cir. 1995); Cheffer v. Reno, 55 F.3d 1517, 152 0-21 (11th Cir. 1995); American Life League v. Reno , 47 F.3d 642, 647 (4th Cir. 1994). But these decisions are u ndercut by Morrison. With the asserted justifications constitutionally infirm, the legislative history do es little to demonstrate a reasonable congressional judgment tha t the prohibited activity substantially affects interstat e

commerce.

D. Any Link is Too Attenuated

As was said in Lopez, "[i]n a sense any conduct in this interdependent world of ours has an ultimate commer cial origin or consequence, but we have not yet said the commerce power may reach so far. If Congress attemp ts that extension, then at the least we must inquire w hether

34the exercise of national power seeks to intrude upo n an

area of traditional state concern." Lopez, 514 U.S. at 580 (Kennedy, J., concurring). Any supposed link betwee n the proscribed conduct in FACE and interstate commerce, if one exists, would be so attenuated that it could be used to also justify a general federal police power.

Even assuming that some of the surgical instruments
, medications, furnishings and equipment were in inte rstate commerce at some point, such a connection is so neb ulous that it provides no useful boundary under the Comme rce Clause. According to Morrison, allowing such remote factors to govern constitutional limitations would allow Co ngress to "completely obliterate the Constitution's distincti on between national and local authority." Morrison, 120 S. Ct. at 1752.

Persons seeking to block access to abortion clinics may be a national problem, but in that sense, rape, rob bery and trespass present national concerns as well. Being a mere commonality of the several States does not justify federal regulation of these matters under the auspices of i nterstate

commerce.

The conduct at issue here -- blocking access to a building and verbally intimidating those who attemp ted to enter -- is a quintessentially local problem. Despi te that obvious and inescapable fact, the federal governmen t chose to use its resources where they were neither requir ed nor appropriate.

Because the prohibited activity has no commercial character and no jurisdictional element need be pro ved, the statute as drafted impermissibly extends federal ju risdiction over conduct that is purely and simply intrastate a nd has no relationship in any substantial manner to inters tate commerce. Without a jurisdictional prerequisite, FA CE leaves the federal government free to intrude into a state's sovereign duty to maintain order in any abortion cl inicrelated disturbance, no matter how trivial.

Contrary to the congressional findings, here there was no abdication of responsibility by state authorities. A state court had issued an injunction against obstructing entry to
the clinic. On each of the three occasions when the conduct occurred, the local police intervened, arrested pro testers,

35and filed state criminal charges. All of the blocka des were

controlled by local authorities, including the last one, which caused the local police to seek assistance from nei ghboring municipalities. The only reported injuries were the result of one demonstrator kicking and head-butting a police officer.

From the standpoint of local law enforcement person nel,

the conduct that FACE addresses is not extraordinar y, but is akin to disturbances following a high school gam e between bitter rivals, where fans demonstrate their loyalty in mass unruly gatherings. Celebrations by fans of Super Bowl champions frequently require intervention by c ity police to maintain order and protect property (some of it undoubtedly in interstate commerce). Near riots at rock concerts by performers who have traveled interstate are routinely controlled by local police forces. Many o f the same arguments used to justify FACE could be used to fed eralize criminal conduct of this nature, despite the compet ence state authorities have demonstrated over the years. 1

It is difficult to understand why the federal gover nment
invoked FACE when local authorities had the situati on well in hand. Duplication of state and federal injunctio ns wastes judicial resources and leads to uncertainty and con fusion. Moreover, overlapping of enforcement authority is detrimental to the federal system and the liberties it secures. "[C]itizens must have some means of knowin g which of the two governments to hold accountable fo r the failure to perform a given function. `Federalism se rves to assign political responsibility, not to obscure it. ' " Lopez, 514 U.S. at 576-77 (Kennedy, J., concurring) (quoti ng FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992)). When overlapping occurs, the lines drawn by federalism a re blurred and the "resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power." Id. at 577 (Kennedy, J., con curring).

___________________________________________________ ______________

1. Where state officials are unable to adequately c ontrol disturbances with their own resources, 42 U.S.C. S 10501 allows officials to petition the Attorney General for assistance from the federa l law enforcement community.

36FACE is a glaring example of the federalization of local

criminal law that is fatally flawed in its implemen tation because it regulates activities with no commercial character. The statute contains no jurisdictional e lement which might cabin its operation within the confines of the Commerce Clause, and the congressional findings fai l to provide the necessary justification for federal int rusion into

local law enforcement.

II. Instrumentalities of Interstate Commerce

The government also argues that FACE may be sustain ed under the second category noted by the Supreme Cour t-- protection of the instrumentalities of interstate c ommerce or persons or things in interstate commerce. The Co urt of Appeals in United States v. Bird, 124 F.3d 667, 674 (5th Cir. 1997) concluded that FACE was not sustainable under this second category because no evidence was submit ted at trial to support such a conclusion. The Court in Te rry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996) simply n oted that only the third category was relevant to the ca se before

it.

The Court of Appeals in United States v. Dinwiddie, 76 F.3d 913, 919-20 (8th Cir. 1996), considered this s econd category, observing that the clinic in that case wa s located in a metropolitan area straddling two states. Becau se of this, a number of patients and staff members did no t live in Missouri where the clinic was located, and there fore, traveled interstate to reach it. Id. On that basis, the court concluded that the statute protected people and bus iness in interstate commerce and so was within Congress' power to enact under the second category. Id. 2

___________________________________________________ ______________

2. It is interesting, but not determinative, that i n Dinwiddie, the record

established the interstate travel of a doctor and s ome patients. No such findings were made in the case before us. In any ev ent, the Dinwiddie evidence would not cure the facial deficiency in th e text of the Act

itself. As a criminal statute, it must give notice of the n ature of the conduct proscribed, United States v. Harriss, 347 U.S. 612, 617 (1954), including jurisdictional facts that must be proved. The fact that the prosecution produces evidence that could satisfy a hypothetical jurisdictional

element cannot cure the lack of the material elemen t in the statute

itself.

37Dinwiddie, however, failed to consider the signific ance of

the lack of a jurisdictional hook in FACE, although such absence was a factor in Lopez. It is noteworthy tha t the two cases cited by the Dinwiddie court to support its h olding

that the clinic was "in interstate commerce" were b ased on statutes that did contain jurisdictional limitation s. E.g., United States v. American Bldg. Maint. Indus., 422 U.S. 271, 275-76 (1975) (Clayton Act); United States v. Robertson, 514 U.S. 669, 670 (1995) (RICO).

I am not persuaded that a purely local commercial service that is frequented by nearby but out-of-sta te patrons is within the scope of the Commerce Clause without the saving grace of a jurisdictional clause . See Morrison, 120 S. Ct. 1752 n.5.

It is significant that in Lopez, the cases cited in support of the commerce power under the second category inv olved such matters as the Safety Appliance Act as applied to
railroad cars used in intrastate and interstate com merce, Southern Ry. Co. v. United States, 222 U.S. 20, 24 (1911), and fixing intrastate railroad fees that affect int erstate rates. Shreveport Rates Cases, 234 U.S. 342, 345 (1 914). Other examples cited by the Supreme Court include

destruction of an aircraft or thefts from interstat e shipments. Perez v. United States, 402 U.S. 146, 15 0 (1971). None of these situations approaches the bro ad sweep of FACE, which, it must be said again, lacks any jurisdictional limitation to restrict its applicati on to those matters demonstrably in interstate commerce.

III. Fourteenth Amendment

The government also attempts to sustain the statute as a valid exercise of congressional power under the Fou rteenth Amendment. Morrison provides a short answer to that contention. The Fourteenth Amendment applies to the states, and like the Violence Against Women Act, FA CE is directed at private conduct where there is no indic ation of state action. Morrison, 120 S. Ct. at 1756. FACE, t herefore,

cannot be sustained under the Fourteenth Amendment.

38I conclude that FACE is unconstitutional under both the

Commerce Clause and the Fourteenth Amendment. The judgments in this case should be set aside.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

39