Norton v. AshcroftNorton v. Ashcroft
I.
This case arises out of plaintiffs’ protests at the Planned Parenthood Clinic in Kalamazoo, Michigan. Norton, a volunteer nurse, and Greiffendorf, a teacher in a Roman Catholic school, regularly picketed, prayed, handed out literature, and attempted to counsel individuals who entered the Clinic. Typically, plaintiffs stood on the public sidewalk on either side of the Clinic‘s driveway. Although plaintiffs claim they do not intend to block access to the Clinic, on some occasions, drivers would stop in the Clinic‘s driveway to take a leaflet from, or speak with, one of the plaintiffs.
Concerned about potential obstruction, Clinic employees made sеveral complaints to state and federal law enforcement. In response, the United States Marshall for the Western District of Michigan requested Norton attend a meeting with law enforcement and Clinic employees. Norton attended the meeting on June 1, 2000, along with her attorney, John
In a letter dated June 2, 2000, the government advised the plaintiffs that “they will need to communicate with individuals visiting the clinic at some other point—еither across the street or at some other area where they are not blocking access to the clinic.” Although Greiffendorf did not attend the meeting, she claims that after reading the June 2 letter, she did not resume her counseling and protesting activities outside the Clinic because she feared arrest.
Norton was not as easily dissuaded. On or about June 19, 2000, Norton returned to the Clinic and prayed on the sidewalk. She did, however, attempt to stay approximately thirty feet from the driveway, so as to avoid stopping cars. Notwithstanding thе Clinic sign cautioning “For Traffic Safety Do Not Stop In Drive, Persons Outside Gate Are Not Employees of Planned Parenthood” and Norton‘s distance from the Clinic driveway, a car stopped in the driveway and called out to Norton. At the same time, a Clinic employee drove up behind the stopped car and began honking her horn. Concerned about arrest, Norton signaled to the first driver to move across the street. Apparently on the same day, an individual who Norton recognized as a Clinic employee, motioned for Nortоn to approach her car. Fearing entrapment, Norton turned and walked away from the car. Following these incidents, Norton left the Clinic and has not returned.
II.
This court reviews a district court‘s dismissal of a сomplaint de novo. Moore v. City of Harriman, 272 F.3d 769, 771 (6th Cir. 2001) (en banc).
All of our sister circuits to address First Amendment facial challenges to the Act have upheld the Act. United States v. Gregg, 226 F.3d 253, 267 (3d Cir. 2000), cert. denied, 532 U.S. 971 (2001); United States v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998), cert. denied, 525 U.S. 1071 (1999), United States v. Bird, 124 F.3d 667, 683-84 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998); Terry v. Reno, 101 F.3d 1412, 1418-1421 (D.C. Cir. 1996), cert. denied, 520 U.S. 1264 (1997); United States v. Soderna, 82 F.3d 1370, 1374-77 (7th Cir.), cert. denied, 519 U.S. 1006 (1996); United States v. Dinwiddie, 76 F.3d 913, 921-24 (8th Cir.), cert. denied, 519 U.S. 1043 (1996); Cheffer v. Reno, 55 F.3d 1517, 1521-22 (11th Cir. 1995); American Life League, Inc. v. Reno, 47 F.3d 642, 648-52 (4th Cir.), cert. denied, 516 U.S. 809 (1995). Finding their analyses persuasive, we join this uniform line of decisions and hold that the Act does not, on its face, violate the First Amendment.
Plaintiffs argue that the Act only restricts the speech of abortion opponents, and is therefore a content-based restriction. A statute that regulates speech or conduct “based on hostility—or favoritism—toward the underlying message expressed” is content-based. R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The Act, however, does not directly apply to speech, but rather prohibits three types of conduct—use of force, threat of force, and physical obstruction1—which are not protected by the First Amendment. See Wisconsin v. Mitchell, 508 U.S. 476, 484, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) (“[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.“); Cameron v. Johnson, 390 U.S. 611, 615-17, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (rejecting First Amendment challenge to a law that prohibited obstructing access to a courthouse). Yet we recognize the Act “might incidentally affect some conduct with protected expressive elements, such as peaceful but obstructive picketing.” See American Life League, 47 F.3d at 648; see also Weslin, 156 F.3d at 297.
To the extent the Act implicates protected expression, we find that it does so in a content-neutral manner. The Act prohibits interference with a variety of “reproductive health services,” including all “medical, surgical, counseling or referral services relating to the human reproductive system.”
As a content-neutral restriction, the Act must withstand intermediate scrutiny. Gregg, 226 F.3d at 268. A statute passes intermediate scrutiny “[1] if it furthers an important or substantial government interest; [2] if the governmental interest is unrelated to the suppression of free expression; and [3] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O‘Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Initially, the Act, at a minimum, furthers an imрortant government interest in ensuring access to reproductive health services, an interest unrelated to any incidental suppression of free expression. See Dinwiddie, 76 F.3d at 924. The Act only “forbids physical interference with people going about their own lawful private business,” id., and both specifically exempts protected First Amendment activity and leaves open “ample alternative means for communication,” Terry, 101 F.3d at 1420. Therefore, we are satisfied that the Act easily passes muster under O‘Brien.
Plaintiffs also contend that the Act is impermissibly vaguе. A statute is unconstitutionally vague if it does not give a “person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Every circuit court to address this challenge has ruled that the Act is not impermissibly vague. Bird, 124 F.3d at 684; Terry, 101 F.3d at 1421; Soderna, 82 F.3d at 1376-77; Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1521-22; American Life League, 47 F.3d at 653. We agree.
Relatedly, plaintiffs also mount an overbreadth challenge to the Act. A statute is overbroad only if “it reaches a substantial number of impermissible applications.” New York v. Ferber, 458 U.S 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); see also Deja Vu of Nashville, Inc. v. Met. Gov‘t of Nashville, 274 F.3d 377, 387 (6th Cir. 2001). The Act prohibits only a limited range of conduct—the use or threat of force, or non-violent physical obstruction, intended to prevent аccess to, or the provision of, reproductive services. See Terry, 101 F.3d at 1421. Contrary to plaintiffs’ assertion, the Act does not apply to “any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.”
III.
A.
The district court dismissed plaintiffs’ as-applied challenge pursuant to
Given these guidelines, we find that plaintiffs’ as-applied challenge is not yet ripe for review. First, assuming plaintiffs have sufficiently alleged unconstitutional harm, they have not established that such alleged harm will ever come to pass. In the June 1, 2000, meeting the government indicated that it was concerned about a “pattern of activity.” Plaintiffs have not, however, engaged in such a “pattern of activity.” While in certain circumstances, an unequivocal intention to engage in such a “pattern of activity” might suffice for ripeness purposes, thе Act is a specific intent statute. Accordingly, application of the Act depends not only on the existence of such a “pattern of activity,” but on specific facts demonstrating that plaintiffs acted with the requisite specific intent. In the present case, this inquiry is further complicated by the fact that plaintiffs have professed an intention to comply with the Act. Under these circumstances, we cannot conclude that plaintiffs have sufficiently demonstrated that the alleged harm will ever come to pass.
Finally, withholding judicial relief does not result in undue hardship to the plaintiffs. Although plaintiffs claim they were intimidated from resuming their counseling, picketing, and praying activities at the Clinic, the meeting did not deter Norton, who resumed counseling on June 19. Even accepting plaintiffs’ professed uncertainty about counseling on the section of the sidewalk immediately adjacent to the Clinic, some uncertainty inheres in conduct—even conduct motivated only by the strongest moral convictions—along “the boundaries of the criminal law.” Adult Video Ass‘n, 71 F.3d at 568. Such uncertainty does not rise to the level of undue hardship. Id. Notably, if plaintiffs wish to avoid this uncertainty, they can heed the government‘s advice and simply move their counseling activities across the street from the Clinic.
In light of the foregoing, we hold that the district court correctly concluded that plaintiffs’ as-applied challenge is not ripe for review and properly dismissed their challenge for lack of subject matter jurisdiction.
B.
In a footnote, plaintiffs assert that they have standing to assert the First Amendment rights of individuals entering the Clinic who may wish to speak with them. Ordinarily, a party does not have standing to assert the rights of third parties. In re Troutman Enterp., Inc. (Harker v. Troutman), 286 F.3d 359, 364 (6th Cir. 2002). In order to avoid this general rule,
IV.
“Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); see also United States v. Faase, 265 F.3d 475, 481 (6th Cir. 2001) (“[W]e may only invalidate a congressional enactment passed pursuant to the Commerce Clause if it bears no rational relation to interstate commercе.“). The Commerce Clause empowers Congress to “regulate Commerce ... among the several states.”
At the outset, we reject plaintiffs’ initial contention that Morrison calls into question the uniform body of cases upholding the Act against Commerce Clause challenges. Rather than breaking new Commerce Clause ground, Morrison derived its four-factor framework directly from Lopez. Id. at 609 (“Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of [the civil remedy provision of the Violence Against Women Act].“); see also Faase, 265 F.3d at 482 (characterizing Morrison as elaborating upon Lopez); United States v. Corp, 236 F.3d 325, 331-33 (6th Cir. 2001) (applying four-part Lopez test in light of Morrison).
We are also satisfied that the Act withstands scrutiny under Morrison. In particular, we find the Third Circuit‘s application of the Lopez/Morrison four-factor test and its examination of the Act‘s extensive congressional findings persuasive. See Gregg, 226 F.3d at 261-67. Initially, we find that the Act, unlike the Violence Against Women Act‘s civil remedy provision, regulates activity—“the physical obstruction and destruction of reproduсtive health clinics and the intentional interference and intimidation of persons
The Act, which was enacted prior to the Supreme Court‘s decisions in Lopez and Morrison, does not contain a formal jurisdictional element, see Gregg, 226 F.3d at 263, “a clause that purports to ensure that the law only covers activity that has a substantial effect on interstate commerce.” Corp, 236 F.3d at 330 (quoting United States v. Rodia, 194 F.3d 465, 468 (3d Cir. 1999)). Although plaintiffs place considerable emphasis on this element, neither Morrison nor Lopez held that a congressional enactment would fail deferential Commerce Clause review without a formal jurisdictional element. Rather, a jurisdictional element “may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.” Morrison, 529 U.S. at 612; see also
Morrison also instructs us to consider any congressional findings that a particular activity burdens interstate commerce. 529 U.S. at 612. Of course, the constitutionality of a particular enactment is “ultimately a judicial rather than a legislative question,” Lopez, 514 U.S. at 557 n.2 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Black, J., concurring)), but such findings may “enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce.” Morrison, 529 U.S. at 612 (citation omitted). Both the Senate Judiciary Committee and the House Committеe on Labor and Human Resources submitted extensive reports detailing that clinic blockades and violent anti-abortion protests burdened interstate commerce.
Finally, the fourth Morrison factor directs us to assess the link between the regulated activity and interstate commerce. 529 U.S. at 612. In making this assessment of the Act, we first examine the interstate nature of the market for reproductive health services and then examine congressional findings regarding how the activity prohibited by the Act burdens interstate commerce.
With respect to this first inquiry, the legislative record indicates that there is a national market for abortion services. See Gregg, 226 F.3d 263-64; Bird, 124 F.3d at 678. Owing to a national shortage in reproductive health services where only 17% of counties have an abortion provider, H.R. Rep. No. 103-306, at 8, U.S.C.C.A.N., at 705, patients must often travel interstate to obtain reproductive health services. S. Rep. No. 103-117, at 31; H.R. Rep. No. 103-603, at 10, U.S.C.C.A.N., at 707. For example, the Senate found that 44% of patients treated at a Wichitа, Kansas clinic were from out of state. S. Rep. No. 103-117, at 31. According to the congressional record, this shortage is particularly severe in rural counties because most abortion providers are located in metropolitan areas. H.R. Rep. No. 103-306, at 8, U.S.C.C.A.N., at 705. Moreover, abortion opponents are particularly likely to target rural reproductive health service providers because elimination of such a provider can eliminate abortion services for all women in a geographic area. Id.
As a consequence of this national shortage in reproductive health providers, physicians must also engage in interstate commerce. The Senate noted that physicians travel interstate and that some physicians perform abortion-related services in more than one state. S. Rep. No. 103-117, at 31. For example, the Senate noted that one physician from Minnesota provided abortion services in Minnesota, Montana, North Dakota, and parts of Canada. Id. at n. 46.
As to the link between the regulated activity and interstate commerce, Congress concluded that the clinic blockades and violent protests proscribed by the Act forced clinics to close, caused harmful delays in the provision of medical services, increased health risks to patients, S. Rep. No. 103-117, at 14-15 and caused millions of dollars of damage to reproductive health facilities, H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., at 704. Threats of violence also decreased physicians’ willingness to perform abortions. S. Rep. No. 103-117, at 14; H.R. Rep. No. 103-306, at 8, U.S.C.C.A.N., at 705. The Senate Committee noted that the violence “has ... 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. For example, at least three physicians in Dallas stopped performing abortions in 1992 as a result of pressure by an anti-abortion group; two doctors in Melbourne, Florida stopped working in 1993 after receiving death threats; and, since Dr. Gunn, an abortion-provider in Florida, was shot in 1993, at least eight more doctors have stopped offering abortion services. Id. at 16-17. The House Committee reported similar conclusions, characterizing the provider shortage as “at leаst partially attributable to the violence and intimidation described in [the] report.” H.R. Rep. No. 103-306, at 8, U.S.C.C.A.N. at 705. According to the record, “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.” Id.
In addition to the documented economic disruption of clinic blockades and violent protests, Congress also found that this conduct was driven by a nationally unified and nationally coordinated anti-abortion movement. Congress fоund that
Given the detailed congressional record, we are satisfied that Congress had a rational basis to conclude that the activities prohibited by the Act disrupted the national market for abortion-related services and decreased the availability of such services. See Gregg, 226 F.3d at 263-64. Considered along with the other Morrison factors, we hold that Congress validly enacted the Aсt pursuant to its Commerce Clause power.
V.
Finally, plaintiffs argue that the Act targets only anti-abortion groups and therefore violates the Equal Protection Clause. We find this argument meritless because plaintiffs do not constitute a suspect class, the Act does not infringe on plaintiffs’ First Amendment rights, and Congress plainly had a rational basis in enacting the Act. See Terry, 101 F.3d at 1422. We agree and affirm the district court‘s dismissal of plaintiffs’ equal protection claim.
VI.
For the foregoing reasons, we AFFIRM the decision of the district court dismissing plaintiffs’ constitutional challengеs to the Act and its denial of declaratory and injunctive relief.