United States v. Frank Lafayette Bird

аuditor, review the district court’s factual role. We to an IRS making false statements v. during findings for clear error. United States (2) submitting false documents (5th Cir.1996), cert. (3) Upton, to an 91 F.3d audit, statements making false IRS — denied, -, blending Powell’s investigating agent IRS (1997). (4) Despite the PSR’s rec to conceal his L.Ed.2d attempting operation, of a four-level enhancement purchased have ommendation falsely claiming to scheme 3Bl.l(a) (which § requires suppliers, and at- under USSG from certain ethanol activity involving par five or more by asking Tom criminal perjury tempting to suborn court ticipants), the district was unable falsely at Powell’s trial. Petty testify preponderance of find that a the evidence this recommendation accepted district court support that Powell’s would the conclusion objection. over Powell’s people large enough to organization of contends that an ob- appeal, Powell On provision. requirements meet of that struetion-of-justice increase cannot be based find, however, prepon that a judge did made to an merely upon a false statement supported an in of the evidence derance significant- statement investigator unless the 3B1.1(c). § crease under USSG The record pros- investigation ly an official obstructed supervised Reason- plainly shows that Powell argues Powell also offense. ecution of the tax returns. This over’s work on fraudulent already pos- is that when support the factor alone is sufficient to dis information, a false state- session of accurate judgment. court’s thus find no trict We not a material ment the defendant clear error. essence, argument is Powell’s falsehood. may have creat- that he any obstruction IV. was not substantial. ed finding of an court’s factual reasons, The district foregoing judgment For the subject to review for justice is obstruction court is AFFIRMED. the district Tello, v. States clear error. See United Cir.1993). (5th could We F.3d only court finding of the district

reverse the firm conviction

if a “definite and we held United has been committed.”

a mistake Co., Gypsum v. States

States United

364, 395, 92 L.Ed. 746 (1948). standard, say cannot Under America, STATES of UNITED court was judgment of the district

that the Plaintiff-Appellee, case Evidence clearly erroneous. false statements to that Powell made showed agents and that he at- investigating IRS BIRD, Lafayette Defendant Frank testimony of wit- tempted to influence -Appellant. that sub- type of behavior ness. This is the obstruction-of-justice jects to the a defendant No. 95-20792. gen- See under the Guidelines. enhancement Appeals, Court of Unitea States comment, (1995). § n.3 erally 3C1.1 USSG Fifth Circuit. circumstances, judgment of these Under cannot be disturbed. the district court Sept. Leader Organizer

D. disputes applica

Finally, Powell 3Bl.l(c) his sen to enhance

tion of USSG as an upon aggravating his role

tence based leader, supervisor.” manager, or

“organizer, wholly upon Powell’s argument is based

This supervisory have a that he did not

contention Stark, Justice, Department of

Lisa J. Silver, DC, Dunsay Washington, Jessica DC, Plaintiff-Appellee. for Washington, Sehmude, TX, Spring, Richard Thomas W. Zakes, Houston, TX, Anthony for Defendant Appellant. Wu, City, New York Priscilla

Yolanda Smith, Reproductive for Law & Joyce Center College Policy, City, York for American New Gynecologists, American of Obstetricians Association, Feminist Ma- Medical Women’s Foundation, for jority Medical Students Choice, Reproductive National Abortion and League, National Abortion Rights Action Federation, for the Pro National Center Majority, Organization for National Choice Center, Women, National Women’s Law Federation, Texas NOW Parenthood Planned Le- Project Law and Women’s and Women’s Fund, Curiae. gal Defense Amicus DeMOSS, GARWOOD, DAVIS Before Judges. Circuit GARWOOD, Judge: Circuit appeals protester, Appellant, an violating the Freedom of his conviction Entrances Act. He chal- to Clinic Access authority to enact lenges the Clause that under the Commerce a statute intrastate, noncommercial proscribes challenges to he raises First Amendment of his to the terms scope of the Act and find that Because we supervised release. basis for the there was a sufficient Discussion activity pro- to have determined Court, years ago, four emphasiz Some Act, intrastate, though could scribed ing the Constitution’s establishment of a na eongression- affect on the have a substantial government tional of limited and enumerated ally-recognized national market for abortion- powers powers which the of the federal —in and because we find that the related “ designed were to be ‘few and unduly applied, vague is neither nor Congress, by enacting defined’ ”—held that overbroad, judgment affirm the making possess statute it a federal crime to also find that district court. We the district zone, its firearm a school court did not abuse discretion when it set had exceeded its appellant’s supervised authority the terms release. under the Commerce Clause. 1342, Lopez, United States v. 2 F.3d Proceedings Facts Below (5th Cir.1993) (quoting The Federalist No. (C. undisputed. ed.1961), are few and aff'd, The facts On at 292 Rossiter 13, 1994, appellant December Frank Bird (Bird), protesting while outside the America’s (1995)). This ease again calls on us to visit Houston, Texas, Women Clinic threw a Congress’s authority regulate issue of to by Dr. bottle at a car driven Theodore Her- activity pursuant intra state to its Commerce ring (Herring), provider, an abortion as he authority, Clause this time aided more attempted premises. to enter the clinic As clarifying Supreme recent authority. Court bottle, yelled, he “Herring, Bird threw the any challenge As with to the constitutional going get you. going you.” I’m to I’m to kill validity duly of an passed by Congress, act Although Herring physically Dr. was not in- approach knowing our task that it is both

jured, the bottle shattered the windshield of gravest “the duty and most delicate that this Employees subsequent- his car. of the clinic perform,” Court is called on Blodgett ly police, who called arrived the scene Holden, 142, 148, 105, 107, and arrested Bird. (1927) (Opinion Holmes, J.), 72 L.Ed. 206 29, 1995, charged On March was Bird powerful and that it “forms one of the most violating one-count indictment with 18 U.S.C. against barriers has ever been devised 248(a)(1), § provision of the Freedom of tyranny assemblies,” political Alexis de (FACE Access to Clinic Entrances Act or the Tocqueville, Democracy (1956, in America 76 Act) that criminalizes certain threats and ed.). Richard D. Heffner providers intimidation directed at of abortion services. 1994,reacting perceived to a nationwide problem protests of violent blockades

The case tried on June 1995. was providers directed at recipients both jury guilty day. returned verdict the same 14, 1995, services, September On abortion district court enacted the imprisonment year sentenced Bird to Act, one Freedom of Access to Clinic Entrances year supervised followed one release making an act engage it a federal crime special stay with the condition that he prohibited certain interfering activities with any least one from thousand feet provision “reproductive or obtainment of clinic, specifically the America’s Women Clin- health Specifically, services.” Act ic in Houston. The district court also or- vides: pay dered Bird to in restitution and $820.67 “(a) Prohibited activities. —Whoever— ordered an assessment of $50. (1) by force or threat of force or timely appeal. Bird filed a notice of Al- obstruction, physical intentionally in- though challenges constitutionality Bird jures, or intimidates interferes with or Act, he does not otherwise contest his attempts injure, guilt intimidate or inter- statutory under the scheme. He also objects person per- fere with because that wording to the of the district court’s judgment been, supervised and the terms of his son is or has order to intimi- release. We affirm. person date such person other from, passed it obtaining or The Act itself states persons any class power “[pjursuant to the affirmative of Con- services; reproductive health providing gress legislation to enact ... under section 8 Constitution, of article I of the as well as under section 5 of the fourteenth amendment provided subject penalties to the shall be Freedom of Access to to the Constitution.” (b) civil remedies and the in subsection Entrances Act of Pub.L. No. Clinic (c), except provided in subsection 2,§ Although Stat. shall legal guardian of a minor parеnt or congressional not contain the Act itself does any penalties or civil subject not be findings, Explanatory the “Joint Statement for such activi- under this section remedies of the Committee of Conferees” Senate exclusively they are directed ties insofar as ultimately adopted Bill as the which was (3) 248(a)(1), at that minor.” 18 U.S.C. of relevant find- sets forth number (West ings.2 Supp.1997).1 "Facility” infringes upon rights the exercise of secured several of its terms.

1. The Act defines clinic, law, hospital, physi- statutory "a federal and state stitutional; both and con- to include is defined office, facility provides repro- or other cian's building and includes the ductive health Such conduct also burdens interstate facility which the is located.” by forcing patients or structure in to travel commerce from 248(e)(1). "to § "Interfere with" means U.S.C. reproductive where their access to health states person's states, Id. a freedom of movement.” restrict to other and services is obstructed 248(e)(2). place § "to a "Intimidate” means interfering the interstate commercial activi- with bodily apprehension person of in reasonable including providers, pur- ties health care of another.” Id. or herself or to harm to him- equipment, chase and lease and sale facilities of 248(e)(3). "Physical "ren- § obstruction” means services, personnel goods employment and of of ingress egress a dering impassable to or from income, purchase generation and and med- of of facility provides reproductive health services icine, surgical supplies, medical instruments rendering passage a to or from such ... or states; supplies and other other from unreasonably facility difficult or hazardous.” ... (4) Prior to the Court’s decision in 248(e)(4). "Reproductive § health services” Id. Clinic, Bray Women's Health 506 v. Alexandria provided "reproductive services health means S.Ct. U.S. (1993), 113 office, clinic, physician’s hospital, or other fa- a paragraphs the conduct desсribed in medical, counseling surgical, cility, and includes (1) (3) frequently enjoined through above was repro- relating to the human or referral services brought under 42 federal courts in actions relating including system, services ductive U.S.C.1985(3), in that case the Court de- but pregnancy.” pregnancy termination of a or the persons remedy a under such sections to nied 248(e)(5). §Id. injured by the obstruction of access to abor- depend upon penalties the Act under Criminal services; and tion-related upon violence and the offense involved whether Violent, (5) threatening, de- obstructive and previously has violated whether the offender providers repro- aimed at of structive conduct 248(b). Act. Id. prohibited, be and ductive health services can injured parties right to seek redress in established, abridg- without the courts can be ANDPURPOSE "2. FINDINGS any rights guaranteed ing under the exercise of Bill, but not the House Amend- The Senate to the Constitution the First Amendment ment, Congressional Statement of contains Rep. No. OS- law.” H. Conf. 1 under other Purpose. Findings and ASS, (1994), reprinted in 1994 at 7-8 amendment. House recedes with an added). (emphasis 724-25 U.S.C.C.A.N. Findings deletes the but incor- The amendment Senate, passed contained S. portion Purpose porates of them in the sec- additional, findings that were ulti- Congress more detailed note that has tion. The Conferees mately in the Conference Commit- not included found: violent, (1) report, as follows: campaign tee some of which are threat- An interstate “(8) pregnancy provide conduct the entities ening, and destructive obstructive engage in commerce providers reproductive abortion-related services health ser- aimed at leasing equip- by purchasing and injured providers facilities across the nation has vices ment, employing selling goods and patients, and the extent such services and their income; generating place people, it nature of this conduct and interstate medicine, (9) purchase medical ability any single such entities beyond state or local instruments, control; sup- supplies, surgical and other jurisdiction to States; conduct, produced (2) plies in other which has included block- Such obstruction, violence, violence, facilities, threats arson ades and invasions of medical assaults, property damage at abortion directed property, destruction of and other murder, threats, had the ef- facilities have attempted viders and medical murder and death 248(a)(1) (1995), argues that section I. Bird private, criminalizes noneconomic conduct arguments chal- a number of Bird makes “ that is neither commercial in nature nor ‘an First, constitutionality of the Act. lenging part larger regulation essential eco- 248(a)(1) beyond argues he that section activity.’” Accordingly, nomic ei- because authority granted to under Clause3 or Section Five jurisdictional ther the Commerce Act lacks a element that would Second, Amendment.4 he of the Fourteenth proscribed instance of activ- ensure each “invidiously argues that the Act is discrimi- commerce, ity had an effect on interstate protects certain familial natory” because it regu- Bird contends that the Act “‘neither protect fails to others. relationships and lates a commercial nor contains a Third, that the Act is constitu- he contends requirement [prohibited activity] that the be Finally, challenges tionally overbroad. he ” activity.’ connected to interstate Bird fur- vagueness grounds. the Act on argues congressional findings ther that the circuits have addressed the con Five other legislative history forth in the Act’s are set finding stitutionality of the each it to be inquiry not relevant to our because Congress’s authority legitimate exercise findings cannot that a use noncommercial Reno, Terry v. under the Commerce Clause. activity “affected interstate commerce” to (D.C.Cir.1996), cert. 101 F.3d de support regulates a statute that intrastate —nied, -, Finally, “regulato- cоnduct. Bird attacks the (1997); United States v. Din L.Ed.2d “ ry means” chosen the Act as not ‘reason- denied, (8th widdie, Cir.), cert. 76 F.3d ably adapted permitted by to the end — -, regard, Constitution.’” Bird con- Wilson, (1996); L.Ed.2d 538 United States v. statutory tends that the definitions of “facili- — (7th denied, Cir.1995), cert. 73 F.3d 675 ty” “reproductive sweep health services” 47, -, 117 136 L.Ed.2d 12 U.S. S.Ct. broadly too (11th and exceed the reach of Con- Reno, (1996); v. 55 F.3d 1517 Cheffer gress’s authority. Cir.1995); Commerce Clause League, American Inc. v. Life — (4th denied, Reno, Cir.), 47 F.3d 642 cert. The United States the Act as a defends -, 55, U.S. proper Congress’s authority exercise of un (1995). constitutionality The of the Act is a First, rely the der Commerce Clause. also question impression first in this Circuit.5 of 557-61, 115 ing Lopez, on 514 U.S. at S.Ct. at agree their Although we with ultimate hold 1629-30, argues the United States that the ings, reasoning, nevertheless set forth our proper Congress’ power Act is “a of exercise respects which differs some from that of ‘protect persons things to ... or in interstate our sister circuits. Second, government commerce.’” the con Congress’s Authority A. Commerce Clause may tends that the Act be “sustained as an Congress’ power regulate exercise of ‘ac Relying Lopez, on States v. 514 United 1624, 549, substantially 115 131 626 U.S. S.Ct. L.Ed.2d tivities that affect interstate ac States; restricting feet the interstate of movement citizens of the United nor shall 636, life, deprive any goods people.” Cong. person liberty, §§ and S. 103d 8- State or law; (1993) (as engrossed). property, process without due 10 nor deny any person jurisdiction within its the equal protection Congress regu- of the laws. 3. "The shall Power ... To have Nations, foreign among late Commerce with States, Congress power Section 5. The shall have the several and with Indian Tribes.” enforce, Const., I, 8, by appropriate legislation, § U.S. art. cl. 3. Const, visions of article.” U.S. amend. XIV, 1, §§ 5. Reno, (5th 1996), "Section 1. All Persons bom or naturalized 5.Cook v. 74 F.3d 97 Cir. in- States, subject juris- appeal request in the to the volved a United from dismissal of a thereof, preliminary injunction. diction are citizens of the United for a Cook was remand- they States and ed of the State wherein reside. to thе district court for reconsideration of the plaintiffs’ standing. No State shall make or enforce law which This Court did not reach the abridge privileges challenge shall or immunities merits of constitutional to the Act.

673 rather, ry; emphasizes emphasized tivity.’” government The Court that findings proscribed ac congressional whether had a rational basis in the to elimi tivity aggregate “threatens regulated determining “suffi ‍‌​​​‌‌​‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‍ services from the national com nate abortion ciently affected interstate commerce” was “ also maintains merce.” ‘ultimately judicial legisla rather than a ” required provided element is jurisdictional Id. at at 557-58 & n. 2, question.’ tive 115 activi criminal statute addresses a “class of 2 Heart Atlan at 1629 & n. (quoting S.Ct. ty” that, aggregate, in the af Motel, ta 273-74, 379 at U.S. 85 S.Ct. at 366 Finally, gov commerce. fects interstate (Black, J., concurring); Virginia Hodel v. argues regulatory scheme ernment Ass’n, Inc., Mining & Reclamation Surface reasonably adapted is adopted the Act 311, 264, 2389, 2391, 452 101 U.S. 69 S.Ct. permissible end. J., (Rehnquist, concurring) L.Ed.2d 1 (“[S]imply Congress may because conclude United opinion Court’s 549,115 1624, particular activity substantially Lopez, v. that a affects States 514 U.S. S.Ct. guides inquiry. necessarily 131 our interstate commerce not L.Ed.2d does so.”)). Lopez, the Court set forth the three areas make it

permissible congressional regulation pursu- “First, ant to the Commerce Clause. Con- 1. Channels Interstate Commerce gress may regulate the of channels of use permissible The first category of 557-58, Id. commerce.” at 115 interstate regulation, interstate involving Darby, United States (citing 5.Ct. at 1629 commerce, plain the channels of interstate is 114-15, 312 61 85 U.S. S.Ct. ly applicable category, to the Act. This Motel, (1941); Heart Atlanta L.Ed. Perez, described in States, 241, 256-57, Inc. v. United reaches the “misuse” of (1964)). 348, 357, L.Ed.2d channels of interstate commerce. Oft-cited “Second, empowered regulate examples transportation ship include the protect of inter- instrumentalities et goods, § ment of: stolen 18 U.S.C. commerce, persons in in- things seq.; et kidnаped persons, § 18 U.S.C. commerce, though even the threat terstate 2421; seq.; prostitutes, § U.S.C. only from may come intrastate activities.” also 841(a); see United drugs, 21 U.S.C. Cases, Shreveport Id. (citing Rate Robertson, 670-72, 115 v. 669, States 514 U.S. 833, (1914); 342, 58 34 S.Ct. L.Ed. 1341 (1995) (af 1732, 1733, 131 L.Ed.2d 714 S.Ct. States, Ry. Southern Co. United 222 firming federal RICO conviction because 20, 2, Perez v. (1911); 56 L.Ed. 72 32 S.Ct. commerce”); gold “engaged mine was States, 146, 148-50, United 402 U.S. 91 S.Ct. Darby, 100, United States v. 312 U.S. 61 (1971)). 1357,1359, “Finally, L.Ed.2d 28 686 (1941) 451, (upholding 609 85 L.Ed. S.Ct. Congress’ authority commerce includes the authority prohibit the inter power regulate having those a activities goods produced by shipment state workers commerce, substantial relation interstate wages violated Fair Labor Stan whose i.e., those activities affect Case, Lottery Act); 321, The 188 U.S. dards Id. NLRB v. (citing commerce.” interstate (1903) (affirming 47 L.Ed. 23 S.Ct. Laughlin Corp., Jones & Steel 301 U.S. transportation 615, 624, (1937); conviction for interstate L.Ed. 893 Wirtz, lottery tickets the Federal foreign under Maryland v. 196 n. 1895). 248(a) a Lottery Act of Section “is not 2024 n. 20 L.Ed.2d 1020 (1968)). Lopez regulation of the use of the channels of inter precise did not set forth the commerce, pro attempt nor is judiciary shall it an standard federal legislative transportation interstate of a com Congress’s hibit the examine determination modity through the particular statute a nexus with channels of commerce.” has catego- Lopez, under U.S. at at 1630.6 interstate commerce the third effectively accomplished congressional finding only 6. intra-state is no that federal can be if There federally regu- regulation the same of interstate or the like conduct of kind is also violence clinics, lated; nor, ascertain, providers, patients there against abortion or so far as can commerce”), Things foreign in Interstate or air and theft from or Com- Persons (crimi- commerce, merce interstate 18 U.S.C. “any nalizing goods the theft of or chattels government argues the Act part moving as or which are a of or which category permissi the second falls within foreign ship- an interstate or constitute regulation, specifically pro ble interstate ment”). things in persons or interstate tection government argues that commerce. jurisdictional Congress did not set forth a determined, through legislative in 248(a)(1). element in Even if there section (1) quiry, that doctors travel interstate to element, jurisdictional had been such a or (2) services, patients provide travel abortion language if even we were able to read the and interstate to receive imply requirement, the Act to such a United (3) supplies equip climes use medical Bass, 336, 347-50, States v. ment that have traveled interstate. 515, 522-23, (requiring not find the Act to be valid We do government requi- to demonstrate “the Congress’s Clause au- exercise of Commerce site with interstate nexus commerce” category. thority under the second each element of a federal firearm statute unquestionably many perhaps Although — ambiguously containing phrase “in com- employ most—abortion climes out-of-state commerce”), affecting merce or there was doctors, patients, and uti- serve out-of-state absolutely allegation nor evidence supplies equipment lize medical produced at trial that America’s Women interstate, allega- there is no have traveled employed per- Clinic in Houston out-of-state that, case, showing present in the tion or sonnel, supplies, utilized out-of-state medical employed phy- America’s Women Clinic ever patients. or treated out-of-state To the con- sicians, patients, supplies treated or used witness, trary, Herring, only Dr. testified qualified. Congressional regulation that so Dallas, Texas; that he resided he was protection persons things or that move questioned concerning supplies never that, interstate commerce must ensure clinic, equipment used nor was he fact, posed by particular “threat” —whether patients asked whether the clinic treated activity actually or intrastate interstate — area, from outside the Houston let alone persons things plain with a threatens generally. from outside of Texas No docu- clear nexus to interstate commerce. Of mentary addressing evidence the interstate course, pa- nor neither medical doctors their produced nature of the clinic’s business was tients are their nature involved inter- at trial. Without evi- Nor, matter, state commerce. for that are dence that America’s Clinic out- Women used inherently supplies medical interstate com- supplies, provided of-state staff or or that it plain In the absence of such a modities. patients, abortion services to out-of-state it is nexus, employ must some clear statute difficult to see how Bird’s actions had mechanism to ensure the federal sup- affect on interstate commerce in medical regulates persons things in fact or in inter- plies, personnel, provision medical or the Traditionally, this has been state commerce. patients. medical services to out-of-state jurisdictional a element or a achieved Congress’s finding “many pa- that statutory presumption. regard, this tients who seek services from 557-58,115 [abortion Lopez, Court in 514 at U.S. S.Ct. 1629, engage in interstate commerce viders] at criminalizing cited federal statutes traveling from [the aircraft in one state to obtain abor- employed destruction of inter- 32(a)(1) (crimi- another,” commerce, S.Rep. tion services] state 18 No. 103- U.S.C. 31; “used, 7, Rep. at H. No. at nalizing the destruction of aircraft Conf. interstate, overseas, operated, employed physicians and that and other related medical and, Congress; congressional findings evidence to that before on the basis of effect that anything sup- we are aware of fungible which would and characteristics of nar- untraceable port Lopez, 2 such a conclusion. F.3d at necessary regulation cotics rendered such to the Cf. (noting regulation 1367 n. 51 that federal regulatiоn trafficking). effective of interstate drug trafficking of intrastate had been sustained

675 ing authority that regu- across state lines to has the to often travel personnel that, activity aggregate, is not sufficient late intrastate provide abortion 248(a)(1) this second support under has a effect on section substantial interstate com- “many,” That “substantial Lopez category. merce. numbers,” majority” patients “a a regulating As federal criminal statute pro obtain or to travel interstate to doctors intrastate, conduct, noncommercial section does not establish that

vide abortion services 248(a)(1) all, justified, if must be at as “an ever so served or particular clinic was part larger regulation essential of a of eco- government’s can the citation attended. Nor activity, regulatory nomic which the involving specific, individualized find of cases scheme could be undercut unless the intra- in unrelated ings relating to other climes activity regulated.” Lopez, 514 were litigation involving a statute serve different 115 S.Ct. at 1631. From the proxy inquiry the individualized as a outset, note, reject, govern- both the required violation under heretofore for each permissible ment’s and Bird’s view of con- See, Lopez category. e.g., Bray this second gressional regulation Lopez category. in this Clinic, 506 v. Alexandria Health Women’s 312-14,113 753, 782, 792, 122 Lopez requires Bird insists that (1993) (Stevens, J., dissenting) L.Ed.2d regulating activity pursu statute intrastate twenty thirty per (stating that between ant to the Commerce contain a Clause to patients targeted Virginia at a abor cent jurisdictional Furthermore, element. Bird Virginia tion clinic were from outside and a activity maintains that the intrastate majority Maryland clinics were at one of the must, minimum, may regulated be at a be Maryland); New York State from outside commercial. We do not read so (2d Terry, v. 886 F.2d N.O.W. First, broadly. though jurisdictional ele Cir.1989) (“women by out-of-state referred may help ment to ensure that the exercise of City seeking clinics often travel to New York Congress’s authority Commerce Clause ex denied, services”), superior cert. its medical only tends activities that those substantial 2206, 109 947, 110 L.Ed.2d 532 commerce, ly only affect interstate it is one (1990); Project Pro-Choice Network v. Res method, one, always necessary and not (W.D.N.Y.1992) cue, F.Supp. See, Congress may achieve that end. (“Plaintiffs’ facilities ser health care render e.g., Terry, (“Lopez’s F.3d funda states, patients especially from other vices proposition mental is that must Ohio, Canada”); Pennsylvania[,] Lucero power ensure that its Commerce Clause Rescue, F.Supp. Operation 1195 regulate noncommercial activities extends to (N.D.Ala.1991) (finding patients re 1.5% only affect those activities Alabama).7 sided outside of Congress may so interstate commerce. do through legislative findings or either its own Activity “Substantially Intrastate jurisdictional in the including a element Activity Interstate Affects” Wilson, statute; both.”); it need not do (“In qualify discussing

That the first F.3d at 685 the lack of the Act fails under permissible jurisdictional Lopez, the Court Lopez categories two Com- element surprising simply imply not state or that all criminal merce Clause is not did element, light appears Congress’s pur- to be statutes must have such an what would be pose prohibited to reach the at as all statutes with such an element Indeed, constitutional, many possible. any climes as or that statute without unconstitutional.”).8 much, government emphasiz- per such an element is se concedes as merce, (so anything congressional finding, far as we are not aware of which 7. There no nor support ascertain) would such conclusion. any Congress, we can evidence before effectively protect that in order to from violence event, any jurisdictional 8. elements do not ‍‌​​​‌‌​‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‍clinics, providers, patients or which were in in- necessarily preclude "as-applied” Commerce necessary terstate ex- commerce it was also See, chаllenges. e.g., United States v. Col- Clause clinics, protection providers, and tend such lins, 95, (5th Cir.1994) (reversing 40 F.3d 99-101 patients having no connection to interstate com- "absence of Hobbs Act conviction because of the 676 view, Congress government’s not over- Under the

Second, did Court only identify a broad “class of activities” need indeed, expressly reaffirmed —the it rule — that, aggregate, viewed in the and determine Filbum forth Wickard v. proposition set “substantially class affects” interstate regulation of intra- congressional concerning course, only “limits” commerce. Of activity: state, noncommercial vided such a construction as thus stated “ activity be local and appellee’s if ‘[E]ven judicial depths imagination. of The are the may regarded not be as com though it similar, government made a unrestricted ar- still, nature, merce, may its be it whatever gument justify the Gun Free School Zones Congress if it a substan exerts reached Lopez. Act in This Court characterized the effect on interstate com tial economic government’s version of the “class of activi- merce, irrespective of whether lacking limiting argument ties” as feature might what at earlier effect is some such such as existence of a national market: “in been defined “direct” time have rely rule “The seeks to on the 556, Lopez, 514 at 115 U.S. direct.”’” ‘[wjhere regu- that the class activities is Wickard, 317 U.S. (quoting 1628 S.Ct. at that class is within the reach of lated and 82, 87, 111, 120-22, 87 L.Ed. 122 63 S.Ct. power, pow- the federal the courts have no (1942)). trivial, er “to excise as individual instanc- intra- reiterated Court theory general- es” of the class.’ This has can, state, activities in certain noncommercial ly a class applied been to the circumstances, substantially affect interstate of activities the individual instances aggregate. considered commerce when effect, usually an which have interactive in Lo- its reaffirmance After Wickard —and forces, competitive because of market or question pez can be on interstate commerce. on each other and —there noncommercial, intrastate regulate is able to credit, given A local transaction or use substantially affects interstate activity that wheat, of national market because commerce,9 admittedly power not broad forces, has an effect on the cost of credit that is the danger to the federalism without lim- price of wheat nationwide. Some such constitu- postulate of our most fundamental iting principle apply ‘class of must to the remains in question rule, tional order.10 else the reach of the Com- activities’ case, however, Congress’s unlimited, ex- given whether vir- merce Clause would be properly power in this manner is tually legislation ercise of all is ‘class based’ some Lopez, 2 government’s view of this sense of the term.” F.3d 1367 limited. It is the Perez, (quoting limiting principle that we find flawed. U.S. statute, (upholding car-jacking showing indi- some direct or substantial federal evidence 2119, commerce”). carjacking § criminalizes “a U.S.C. rect effect on interstate transported, vehicle has been motor commerce”), shipped, foreign or received in interstate or States, 858, U.S. Russell v. United See also — denied, -, 117 S.Ct. t. 2455, (1985) cer 230, (uphold- 85 L.Ed.2d 829 105 S.Ct. (1996). 136 L.Ed.2d 161 Katzenbach statute, 844(i), § Cf. U.S.C. ing federal arson McClung, 379 U.S. 85 S.Ct. 13 L.Ed.2d attempted the destruction or which criminalizes Motel, (1964), and Heart Atlanta Inc. v. "property used in ... destruction arson States, 379 U.S. United affecting foreign com- interstate (1964) (upholding anti-discrimina L.Ed.2d 258 Corona, merce”); States v. 108 F.3d 565 United provisions of the Civil tion in service of Title II (5th Cir.1997) (affirming a under 18 conviction applied Rights Act of 1964 as to restaurants 844(i) § U.S.C. for the destruction commercial commerce). engaged hotels in interstate property, questioning unlimited whether an but ag- permit "speculative” "effects test” would no substan- gregation negligible effects on interstate com- 10. The Tenth Amendment contains burning legitimate exercise of Con- support tivе restriction on the merce to a conviction for is, States, residence); authority; gress's private v. United Commerce Clause Stirone power are the Commerce Clause boundaries of But, the Tenth Amendment. (upholding 18 U.S.C. not delineated the Hobbs plainly confirm that Amendment does certain noncommercial activ- the Tenth which criminalizes limitless, power that hence is not or the movement of the commerce "affect[] ities that commerce exist, commerce”); they must not commodity such boundaries do and that United article Coleman, (5th Cir.) transgressed. be States v. 78 F.3d 158-60 States, Wirtz, v. 192-94, Llerena United 1361; at 409 U.S. at 2022). (1972)). at requirement for such that a believe

We words, although In other activities jurisdic in the of a limiting principle absence proscribed by Congress may an act of consti element, expressly although not tional tute, activities,” and, generically, a “class of Court, only is the adopted aggregate, when in the viewed these activi legitimate reading of the Wickard-Perez line may “substantially ties affect” interstate something there eases. Unless is sense, general commerce some broad relevantly separate incidents and ties features, alone, these two are not sufficient togeth on interstate commerce their effects justify congressional legislation pursuant er, justify congres from the desire to aside missing to the Commerce Clause. What was “class of regulation, government’s sional Lopez, justify and what needed con interpretation would transform activities” gressional action under the “substantial ef Breyer’s into the con Justice dissent category, “judicially fects” are enforceable Lopez, rule. See at 618- stitutional Lopez, outer limits.” at J., (Breyer, at 1659-62 dissent S.Ct. at 1633.12 ing) (arguing guns schools undermine which, turn, leads quality of education Accordingly, inquiry our must determine and, productivity” even “lagging worker 248(a)(1) simply not whether section tually, of “our econom [Nation’s] the erosion (or might scribes intrastate that has ‘standing in thе international market ic have) a substantial affect on interstate com- id S.Ct. at 1632 place’”); merce, but rather whether is a national there (criticizing government’s of crime” “costs commercial market in abortion-related ser- productivity” arguments).11 “national regulated vices such that conduct —con- offered, limiting princi Wickard itself light scope sidered in of the size and market. Perez cited ple, the national wheat benchmark affects in- market — for credit. the national market commercial words, terstate commerce. other Con- characteristic “fungible and untraeeable” gress of a must have divined existence of narcotics —which found made market in national commercial abortion-relat- of intra state trafficking regulation federal closing in which the down or ed services necessary ef operationally prerequisite (or clinics) obstruction of clinic in one of the inter state activity— fective (even only serving patients if local with (albeit tying

was itself a feature one doctors) substantially ability local affects the bring activi was more relevant intrastate provide in other states to abortion- of clinics ty Lopez’s catego within the reach of first related services. To this end we must exam- Lopez, See ry). 1367 n. 51 F.3d Lopez, congressional findings, ine the the committee United States (citing F.2d (5th Cir.), cert. nom. testimony. denied sub reports, and the relevant 951-53 that, nexus, similarly providing commerce for considerations inform us for an interstate 11. These determining regulated directly engaged whether the intrastate in inter- robberies of businesses commerce, activity substantially interstate (in affects dealing state commerce addition to in mer- "substantial” must be understood to have refer- state, provided "[t]he from out of stores chandise only quantitative to a measure but also ence check-cashing ... out- services the stores cashed ones; qualitative effects which are tоo indi- to rect, checks, checks, payroll of-state remote, only by or attenuated —or are seen checks”) impact with a direct on the benefit piling upon “inference not sub- inference” —are of the locations robbed interstate commerce “substantially” stantial. Our use of hence em- ("one permanently store was forced to close quantitative qualitative braces both mea- capital, and the others were unable to lack of sures. time"). period Id. at checks for a finite cash contrast, Here, requires the statute language 12. While certain in United States v. commerce, to interstate and the nexus whatever Robinson, (5th Cir.1997), read in 119 F.3d 1205 clinic does not establish that victim isolation, evidence might be understood to embrace (then ever) engaged . or doctor was in inter- far-reaching "class of activities” anal- somewhat (i.e., serving patients interstate ysis, opinion state commerce must be in the context of read there, like). panel namely prose- providers utilizing what was before the or the out-of-state specifically under the Hobbs a statute cution recog- services persuaded that section market abortion-related areWe 248(a)(1) regulation intra legitimate Congress that Congress, is nized we hold on a substantial affect activity having state justified concluding regula- that the was First, Congress made commerce. interstate activity activity pro- tion of intrastate —the testimony pre by the findings, supported necessary Act—was to ensure hibited the House and Senate committees to the sented (both availability in terms of access and the considering the that there charged with in the national price) of abortion services market commercial was an interstate with Lo- commercial market. Consistent Second, Congress found abortion services. admonition, presence pez we note that the ’s by the Act consti activity prohibited that the of а national commercial market abortion- problem, regularly caus a nationwide tuted services, together with the effects on related interruption of abortion services ing the conduct, proscribed market of the such prohibited activity occ the the clinics where circumscribing limiting principle as a serves Third, Congress found that the urred.13 Congress’s regulation of intrastate to the interruption abortion services due under the Act. (or by the Act caused prohibited activities cause) to travel from the likely to women was reaching our determination that the Act inter abortion services were states where “substantially category, affects” satisfies the state, clinics, out of that were rupted to often finding forth in the we note that set abortion ser provide to unobstructed able Report, stating that Conference Committee inference, Finally, sup a fair it is vices. activity proscribed the Act “burdens testimony, that the ported by congressional by forcing patients interstate commerce to in demand at unob proportionate increase from where their access to re- travel states wom brought about those structed clinics productive health services is obstructed to services in the to seek abortion en forced from other states” is a conclusion derived market because of intra national commercial research, legislative hearings, and months of clin activity obstructing local abortion such, it to debate. As is entitled deference increase) (or likely to ics both increased was interpreted, should be insofar as it is and (or services and reduced the cost of abortion the information before the consistent with reduce) availability of abor likely to enactment, sup- Congress at the time of to climes. Ac at the unobstructed tion services port reading a constitutional of the Act.14 cordingly, light of the national commercial Cf engaged simply type in interstate suggest that because a state commerce victims 13. We do not (which any proscribed present state could val- conduct of antisocial commerce. As the conduct is idly proscribe) fairly a "na- can be described as nationally, may tendency factors some these have (or many even problem statute, the sense that tional” collectively support but to are not all) experience of it than more instances states bring to it within the themselves alone sufficient desired, or that this of itself suffices are desirable juris- Commerce Clause where statute has no scope bring of Con- such conduct within allegations dictional nexus and neither the nor power. Plainly gress's Clause it does Commerce defendant traveled in the evidence show Ever since a time well before the Constitu- not. (or acted in concert with interstate commerce Convention, every year been tional there have did) provid- those who or that either the clinic or more murders than each of the several states (and engaged in interstate commerce er was desired, plain or but it is nevertheless desirable showing congressional finding being there does not authorize that the Commerce Clause perpetrators of intrastate legislation punishing enact necessary tection of intrastate victims was throughout the nation. As Chief all murders regulate perpetrators effectively either inter-state a unanimous Court in Justice Marshall wrote for victims). protect interstate (6 Wheat.) Virginia, Cohens v. (1821), "Congress general has ... no L.Ed. 257 history legislative 14. Use of in this manner is punish right within murder committed responsibility entirely consistent with our clear, states,” id. at "[i]t regulated activity’s gauge effect on interstate punish generally.” felonies Id. cannot Lopez, commerce. See Here, proscribed at 428. it is also true that the ("[A]s part independent of our S.Ct. at 1631 relatively common offenses all share a goal narrow cоnstitutionality evaluation of under the Com- are all directed at a or motivation and victims, legisla- merce Clause of course consider relatively narrow common set of congressional findings, and indeed even the many proscribed tive further offenses in- findings, regarding perpetrators traveling the effect on inter- volve common in inter- committee

679 Comm, Sullivan, 173, 190, Hearing 111 1993: v. Labor Rust on Before (1991) (‘“The Resources, 1759, 1771, 233 and Human Cong., 114 L.Ed.2d 103d at (1993) elementary every rule is that reasonable con 16-17 Hearings [hereinafter Senate ] (statement Reno) to, Atty. to (stating must be resorted in order of Gen. struction that unconstitutionality.’”) from engaged save a statute abortion clinics are in interstate Hooper California, 155 commerce that (quoting significant clinics serve 207, 211, 656-58, patients); 15 39 L.Ed. 297 numbers of out-of-state id. at (1895)). (statement 64-65 Craig, of Willa Executive Director, Clinic, Missoula, Blue Mountain

a. National Market Abortion- MT) (“A large number of our abortion and Related Services prenatal patients our average travel an of appointments 120 miles to their at our clinic Congress found that doctors travel across due to a lack of services in their own areas. provide state lines abortion services and Idaho, These areas include Washing- eastern patients also travel interstate to obtain ton, Canada.”); Wyoming and 103-117, see also 139 S.Rep. such services. No. at 31 S15, 16,1993) (1993) Cong. (daily Rec. 658 ed. Nov. (“[M]any patients seek who (statement Kennedy) of Sen. (noting the na- engage from these facilities in inter- services shortage tionwide of by traveling abortion-related ser- state commerce from one state vices). another.”); Rep. H. No. to obtain services (1993) 103-306, (“Many of the counties at 8 Activity b. Proscribed the Act providers

that have are urban centers. A Availability Threatens the only provider in provider rural is often the of area____ Abortionr-Related Services large geographical The facts are only percent of U.S. counties have an activity pro- found that provider that clinic face abortion owners scribed the Act constituted national perform shortage willing of doctors problem, regularly causing interruption abortions.”), reprinted in 1994 U.S.C.C.A.N. of abortion-related services at the clinics Indeed, very shortage it is prohibited activity where occurred. The appears abortion-related services that Report Senate states clinic blockades have created the national market for these protests significant and violent had “a ad- (“The Rep. at 17 n. 29 services. See S. & impact only patients verse on abortion already availability of abortion services is providers, delivery also on the of a but very many parts limited of the United range wide of health care services. This Nationwide, States. 83% of counties have no close, conduct has forced clinics to caused Dakota, provider. In abortion South delays provision serious harmful in the performs only physician who abortions com- services, medical and increased health risks Minnesota.”). mutes from patients. It has also taken a severe toll on reports accurately providers, ceasing some into The House and Senate intimidated testimony presented reflect to the re- offer abortion and contributed to spective already shortage qualified committees. Abortion acute See Clinic 103-117, Hearings providers.” S.Rep. the Subcomm. on No. at 14. The Violence: Before Comm, Report and Criminal Justice Senate observed the link between the Crime (1993) Judiciary, Cong., activity prohibited by on the the Act and the con- 103d (letter Hearings Atty. shortage in [hereinafter ] House comitant abortion-related ser- Reno) (“Some providers (stating “patients Gen. and staff vices. Id. at 17 have suc- frequently interstate” or to and threats. At travel to receive cumbed to the intimidation services); physicians stopped per- in Dallas administеr abortion-related least three pres- forming Freedom Access to Clinic Entrances Act abortions 1992 as result commerce____”); ICC, (examining House and Senate floor Preseault v. 520-21 1, 16-18, 924-25, statements to discern link to interstate com- merce); Coleman, (discussing (quoting Sen- 78 F.3d at 158-59 L.Ed.2d House and reports Report accompanying and Senate floor state- ate the National Trails House and House Bass, Act); ments). System 404 U.S. at H10,089 facilities”); (daily ed. Cong. Rec. early group. anti-abortion by an sure Pelosi) (statement 1993) Rep. threats, two doc- receiving death Nov. 1993, after (“over the coun- percent clinic in of clinics across working at an abortion stopped tors have try offering reproductive Dr. health services Melbourne, since Gunn FL. And violence”); H10,- eight more doc- id. at undergone at least extreme shot March (“The (statement offering Rep. Engel) abortion ser- work of stopped of have tors (statement vices.”); of Randall Ter- includes low-cost many at 80 clinics—which often id. Rescue) Director, (stating care, control, that Operation infertility, and ry, prenatal birth withdrawal of facilitated the personally services —has adoption he as well abortion community). blockades, providers in a by abortion chem- disrupted regularly half the been H10,091 Report attacks, invasions.”); also observed House id. at The ical ser- availability Stokes) of abortion-related (statement (“[Activity pro- Rep. reduced of partially attributable to “at least vices was damaged clinic facili- by the Act has] scribed intimidation described staff, the violence away forcing clinic these ‍‌​​​‌‌​‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‍ties or driven understandably are report. Doctors patient to reduce their load and facilities field, have graduated] leaving the and new they provide. Other range of services wide part of the field even as to enter little desire altogeth- operations to cease clinics have had practice.” H. obstetrics/gynecоlogy a wider destroyed by fire after their facilities were er 103-306, Congress noted the at 8. Rep. No. bombings, leaving thousands of women clinic vio- frequency of abortion severity and services.”); adequate health care without that, through (noting from 1984 Id. lence. 1994) (daily Mar. Cong. Rec. H1501 ed. bombings, 62 ar- been “28 there had (statement (noting Rep. Kennelly) the na- of arsons, sons, bombings and attempted violence). scope clinic tional of the abortion threats, incidents of vandal- and 394 bomb (not- 103-117, ism”); at 3 & n. 1 S.Rep. No. Shortage Abortion- c. The National that, through there had ing from 1977 Travel to Related Services Forces arsons, bombings, 81 131 death been “36 Providers Out-of-State assaults, threats, kidnappings, 327 two interruption of Congress found that murder”). invasions, Testimo- and one clinic the activities services due to abortion-related goal that the ny Congress made clear before (or likely by Act caused proscribed by activity proscribed the Act was of the cause) from those states women to travel national market for or eliminate the reduce services were not rea- where abortion-related that such activi- services and abortion-related sonably to clinics in those states available See, partial ty already achieved success. had reason- where abortion-related services were (statement Rep. Hearings, at 2 e.g., House Report ably states: available. Senate Sehuman) goal (observing that stated “[t]he that make to a health access “[Blockades doctors and clinics tactics is to drive facility can have care difficult or hazardous providing abortions out of the business by delaying patients traumatic effects on appear working” to be and the tactics urgent access to medical care and their physicians diminishing numbers of noting the exacerbating their medical conditions---- services); provide abortion-related willing to patients seeking For abortion (statement оf Hearings, at 167-68 Senate can be adverse effects of a clinic blockade League) (detailing Action Freedom of Choice Rodriguez Dr. Pablo particularly serious. Kansas, Wichita, physician resignation of a patient health: the effects on described clinic after she received from an abortion threats). patients the ones who suffer. also fo- ‘Our are repeated Floor debates height- make it in have a interruption Women who do of abortion-related cused on greater risk anxiety ened level brought services about See, complications. delay caused Cong. e.g., the Act. Rec. scribed 1993) (statement patients some S15,672 the invasions has forced (daily Nov. ed. Mikulski) elsewhere due to the fact that (noting that clinic seek care Sen. beyond gestational age gone has “destroyed their violence has clinic facilities —leav- ” first trimester.’ health care ing women without access to 103-117, (quoting testi- The House on Rep. No. Subcommittee Crime and S. testimony that, Criminal Justice heard be- mony Rodriguez). Dr. Pablo cause the continued threats of violence and Report reaches a similar conclu- The House activities, disruptive abortion clinics have (“In Rep. H. No. at 10. sion. See implement heightened been forced to securi- addition, patients often cross state lines to ty measures to ensure access. House Hear- ____”) testimony (citing obtain services (statement Hill, ings, at 25 of Susan Presi- Doe). Silvia dent, Org.) (noting Nat’l Women’s Health Testimony Congress made clear before “[o]bviously, up drives costs of activity proscribed by delayed the Act service”). providing the The Senate Com- (and deny permanently) threatened to access on mittee Labor and Human Resources con- who, to women to abortion-related services report printed sidered in the American existing shortage of such due to the Gynecology Journal Obstetrics and (or travel) required traveled would be to had noted that abortion clinic violence increases interstate to obtain them. Silvia Doe testi- the costs of abortion services at those clinics fied her decision to seek a late-term about open. report that remain The stated that learning after of a fetal malforma- forced, abortion patients have been due to only three violence, tion. She further testified providers clinic other seek country in such a service. climes the offer postpone Hearings, care. Senate at 54. Ad- forced, by shortage providers, testimony was the She ditional before the Senate Commit- Virginia to travel from to Kansas. Wich- set forth tee the Commerce Clause rationale ita, Kansas, delayed obtaining she was from for the Act’s of intrastate activities availability her abortion due to a clinic blockade at the to ensure the of abortion-related Hearing services in the national market: Wichita clinic. Clinic Blockades: the Subcomm. on Crime and Crimi- pattern produced “The of interstate effects Before Comm, Judiciary, nal Justice the on the pressured the movement women (statement Doe). Cong., at 102d 9-17 Silvia variegated from State to State under a patchwork against of local enforcement congressional testimony and the activ- blockades, physical violence and intimi- reports pro- in ity described the committee undoubtedly at abortion clinics is dation for vide sufficient evidence the Congress’s to warrant invocation sufficient entirely have concluded that intrastate activi- power. Similarly, of its commerce the ty here, activity proscribed by the — for shift of demand abortion services from least, had, very potential at the Act— areas where clinic access obstruct- those prevented women who had been from cause repre- ed to those areas where it is not in obtaining abortion-related servicеs their sents the sort of interstate economic effect provid- home states to travel to unobstructed beyond control of that is the effective ers in other states. accordingly proper one State and is sub- ject congressional regulation for under the Activity Intrastate the Act d. Proscribed (statement Id. at 97 Commerce Clause.” Availability Abortion-Re- Affects Tribe) Health, (citing of Professor Summit lated Services in the National Market Pinhas, 322, 327-31, Ltd. v. 1842, 1846-47, 114 L.Ed.2d 366 persuaded are that it is a fair inference We (1991)). activity proscribed by Act— (or have) the effect of which has threatens to from ob This described shift demand precluding access to abortion-related services giv clinics to unobstructed structed climes— targeted clinic— the area served scarcity national of abortion-related en the can have a substantial affect on the availabili- supports legitimacy of Con services — 248(a). ty of in the national pat abortion-related services gress’s enactment of section market. a conclusion is rational and congressional Such ent concern Act, intrastate, supported by testimony presented although proscribed by to the reviewing impact on the avail charged committees with the bills could have a deleterious in the na eventually ability of abortion-related services became the Act. protect market, “Congress relationships, milial but fails to oth- clear that makes tional 248(a) problem rather addressing parent an interstate that “a ers. Section states Wil multistate, problem.” intrastate subject than legal guardian of a minor shall not be son, at 683. 73 F.3d any penalties or civil remedies under they for such activities insofar as are section light of the evident Accordingly, exclusively at that minor.” directed to ensure the availabil purpose congressional 248(a). Thus, physi- U.S.C. a father who services the national ity of abortion-related market,15 we hold that the enact cаlly daughter having blocks his from an commercial 248(a), applied the facts ment of section abortion has not violated the but a ease, was a constitutional exer present his sister has violated brother who restrains power under the Com Congress’s cise of the Act. asserts that there is no reason- Bird we conclude that Because merce Clause. exempting certain familial rela- able basis authority requisite Congress possessed tionships exempting others. while Clause, pretermit the Commerce under Herring Dr. As Bird is not related to questionable more assertion any capacity, and the record does not estab- authority to criminalize congressional lish that his actions manner reflect (not at state purely private conduct directed attempt abortion- to affect the obtainment facilities) under Section Five of property or family, services a member of his related the Fourteenth Amendment. See Civil standing to this Cases, he lacks advance claim —his 3, 18, Rights 3 27 109 U.S. S.Ct. L.Ed. City v. (1883). simply implicated concern is not the facts also Boeme See 835 of “ — U.S.-,-, Flores, 2157, presented. juris- 117 This ‘has no S.Ct. here Court (1997).16 statute, 2166, 138 pronounce any L.Ed.2d 624 either of a diction States, void, state or of the because United against Discrimination Fa- Invidious B. constitution, except as irreconcilable with the Relationships milial upon adjudge legal rights it is the of called ... litigants actual controversies.’ argues [0]ne that the Act is un Bird next protects application fa- is because it certain to whom of statute constitu- constitutional course, purported recognize, “[t]he that motive to be exercise of Commerce Clause 15. We of regulation purpose power purpose reaching of interstate com of but was of for the sole legislative judgment the activity regard merce are matters for intrastate without whether or upon of which the Constitution the exercise actually how that would affect interstate рlaces restriction and over which the courts no regulation commerce. The of intrastate com 115, Darby, given 312 U.S. at are no control.” se, sake, per merce and for its own and not as a however, say, is not to that 61 S.Ct. at 457. This regulating affecting means of or interstate com any congressional regu purpose or of motive merce, scope is not an "end ... within the passed Commerce Clause is lation under the Here, however, say we cannot constitution.” Sodema, v. 82 F.3d "irrelevant.” United States perverted has so its Commerce 1370, (7th Cir.1996). Certainly 1374 when Con power. question at Clause is gress regulating activity, is inter state commercial colorably ensuring at least directed the availabili where, doing so is immaterial. But its reason ty of abortion-related services in the national state, here, Congress regulating purely intra commercial market. activity because of its noncommercial substantial commerce, purpose must on interstate affect in fact be to we Nor do have occasion to determine the regulate commerce. "Let interstate propriety of Act’s criminalization of certain legitimate, scope it be the end be let within of by private may activities citizens that interfere constitution, appro are and all means which person's religious with a exercise of at a freedom end, priate, plainly adapted which are to that place worship person's use of noncom- prohibited, which are but consist with the counseling facility mercial of which constitution, spirit of the are constitu —neither letter and type fall within of economic would seem to (4 Maryland, tional.” M’Culloch v. Wheat.) 17 U.S. regulation permitted Lopez as there was no 316, 421, (1819) (emphasis 4 L.Ed. 579 congressional finding testimony concerning ("should added). Congress, 423 See also id. at activity, any of such na- commercial nature executing powers, pretext pass under the its shortage counseling tionаl of counselors or ser- accomplishment objects laws for the not en vices, tying government,” Supreme or the existence of national fea- trusted to Court invalid). supporting congressional Surely, ture exercise would be bound to hold law it authority perversion congressional authority Commerce Clause under the "substan- be a would category. uphold tial as constitutional a federal statute that affects”

683 248(a)(1), protected by statute terms of section is not heard to attack the tional will not be Amendment; impliedly might accordingly, it also be the First ground that on the persons arguably hypotheti- to other or other there could be some rare applying taken as application might be margins in which its cal case at the outer situations section Raines, 248(a)(1) v. United States unconstitutional.” where First Amendment concerns 519, 522, 17, 20, 4 80 L.Ed.2d might Bird. Broadrick v. 362 U.S. not avail arise does Liverpool, Oklahoma, N.Y. Phila. & (quoting 601, 613-15, 413 U.S. 93 S.Ct. Emigration, v. Commissioners S.S. Co. 2908, 2917-18, (1973); see 37 L.Ed.2d 830 352, 355, 33, 38-39, 5 28 L.Ed. Party Republican Virgi- also Morse v. also United States Saler (1885)); nia, -U.S.-,-& see 38, n. no, n. 744-45 & (1996); 1211 & n. 134 L.Ed.2d 347 (1987). n. 2100 & Wallington, United States v. 889 F.2d opinion Accordingly, express we as to (5th Cir.1989). particularly This is so as challenge respect. Bird’s merits of narrowly the Act with drafted the intent abridging protec- of not First Amendment Overbreadth C. tions.17 un argues that the Act is Bird next Accordingly agree every with other because it is overbroad under constitutional circuit court that has the issue addressed the First Amendment. Bird concedes unconstitutionally Act is not hold protect does not activi the First Amendment 1421; Terry, See overbroad. at F.3d injurious, physically ties that are violent Sodema, Dinwiddie, 1376; 82 F.3d at physi including of force and certain threats 924; Cheffer, 1520-21; F.3d F.3d obstructions, pedes cal such as blockades League, American at 653. F.3d Life Instead, Bird takes issue with trian traffic. obstruction, prohibition physical Act’s on Vagueness D. others, attempt intentional interference with unconstitutionally vague A is statute others, with and intentional ed interference ordinary give “person if it does not injury psychological “in emotional or opportunity intelligence a reasonable to know “large that a sense.” Bird contends demon prohibited, may act what is so that he accord activity con picketing or could well stration Rockford, ingly.” Grayned City v. 408 ‘physical obstruction’” under stitute a 104, 106-09, 2294, 2298-99, 92 S.Ct. 33 Act. (1972). 222 Bird asserts L.Ed.2d tarry long not with Bird’s over- We need give pro fair notice of what is Act fails to proscribes argument, for the Act breadth provide explicit to standards scribed and fails terms, conduct, speech. By prohib its it provisions. particular for the enforcement “force,” only specified “threat[s] uses of its Specifically, he claims that the terms “intimi obstruction”; force,” “physical none date,” with,” “attempts ... in “interfere to protected by the First Amend which are “injures” with” and are timidate or interfere Mitchell, 476, v. Wisconsin ment. 508 U.S. An abortion vague too to be constitutional. 2194, 2199, 124 484-85, 113 L.Ed.2d 436 S.Ct. protester, argues, will not be sure wheth he (1993) (force); Health Madsen v. Women’s subject comply with the Act or er his actions Inc., Ctr., 773-75, 753, 114 S.Ct. 512 U.S. penalties. him to (1994) (threats); 2516, 2529, 129 L.Ed.2d 593 Johnson, upheld against has 611, 615-19, Court v. Cameron 390 U.S. (1968) closely resem- 1335, 1338-39, vagueness challenge a statute 20 182 88 S.Ct. L.Ed.2d Cameron, obstruction). 611, event, bling Act. 390 U.S. 88 any In (physical 1335, convicted, 20 L.Ed.2d 182. statute for which Bird was and at S.Ct. conduct issue in Cameron provided that: proscribed by the virtually least all demonstration) legal prohibi- protected provides: from Act 17. The to the Constitu- "(d) tion the First Amendment Nothing in this Rules Construction.— 248(d). U.S.C.§ tion.” 18 section shall be construed— (in- prohibit any expressive conduct peaceful picketing peaceful cluding or other 684

“ any person, sin- This Court reviews district court’s unlawful for ‘It shall be others, supervision engage entry special conditions of for concert with gly or in v. in such a an abuse of discretion. United States mass demonstrations picketing or (5th Mills, 516, Cir.1992); unreasonably in- 519 Unit 959 F.2d to obstruct manner as (5th 144, Tonry, ingress egress to and ed States v. 605 F.2d 148 free terfere with Cir.1979). prior light 612 In of Bird’s activities premisesId. public from involving activity at or near both n.l, n. 1. criminal at 1336 at the of an abоrtion clinics and residence “clearly and that the statute The Court found provider and his earlier refusal its reach words precisely delineate[d] activity, accept any protest restrictions on his understanding.” Id. at 88 common say that the court we cannot district abused similarity light In of the Act’s at 1338. 1,000 determining its discretion Cameron, hold at issue in to the statute reasonably necessary requirement was foot unconstitutional- the Act’s terms are not prevent repeating activity Bird from 1421; Din- vague. Terry, 101 F.3d at ly See he was convicted. Bird’s convic event, widdle, there 76 F.3d at 924. tion for violent under the Act consti clarity lack of in the vagueness governmental tutes a sufficient interest 248(a)(1) application of the terms of section justify temporary limitation on Bird’s First doing, to what Bird was convicted rights. v. Amendment See United States majority of eases whether or at least the vast (10th Turner, 900, Cir.), 44 F.3d cert. 248(a)(1) apply will terms of section not the denied, clear; possibili- theoretical adequately be (1995); L.Ed.2d 258 United States v. Coth margins of ty rare case at the that some (11th Cir.1988). ran, 855 F.2d 248(a)(1) appli- might arise where the section provision Bird’s contention that the of a stan its terms could be unclear does not cable of dard condition that Bird “shall not associate Levy, v. 756- avail Bird. Parker any persons engaged with in criminal activi 2547, 2562, ty” spe invalidates the district court’s more Connick, (1974); Umphlet 815 F.2d special cific is without merit. The condition Estelle, (5th Cir.1987); Ferguson v. authority court within its con district (5th Cir.1983). F.2d 3583(d). ferred 18-U.S.C. II. release, supervised a condition of As III. “[s]tay court ordered Bird to the district finally argues Bird that the district clinics, 1,000 away from abortion least feet judgment court’s is unconstitutional vio- and specifically the America’s Women Clinic.” states, process lative of due because it under order, permitted was to as The district court Offense,” guilty “Nature of that he was found release, “any supervised other a condition “Blocking Entrance to an Abortion Clinic” appropriate” condition it to be consider[ed] when, fact, in the indictment sets forth his provided greater no “involve[d] the condition specific intimidating as and interfer conduct reasonably deprivation liberty than [was] ing provision Herring’s with Dr. of abortion necessary” to deter criminal conduct and services. 3583(d).

protect public. § the 18 U.S.C. prior court cited Bird’s convic district claim is merit. Bird’s without Bird trespassing at clinics tions for indicted for conduct violative of 18 U.S.C. special support for the condition. 248(a)(1) (and § the indictment references alone). special argues guilty, Bird that the condition vio- that section He was found trial, rights jury violating because it after a lates his First Amendment U.S.C. 248(a)(1). narrowly signifi- § judgment was not tailored to serve a states that Bird guilty violating cant interest and because the was found 18 U.S.C. 248(a)(1). duplicative § of the “stan- special judgment condition was That the characteriz- supervision” “blocking” dard set forth in es his offense as an entrance to an conditions is, most, judgment. abortion clinic a reference to the majority Lopez, the considers constitu- that he violated —the the statute name of tionality Lopez under the of FACE third Entrances Act to Clinic of Access Freedom category by constructing analysis an built (FACE). Herring was able to That Dr. premises: upon three essential bottle-throwing attempt past make it Bird’s entering the America’s 1. “After Wickard —and its reaffir- stop his car from judg- Lopez question invalidate the mance in can be no does not Clinic Women —there regulate judgment is en- is able to noncom- The district court’s ment. mercial, activity the nature of his intrastate that substantial- tirely with both consistent commerce, process. ly interstate an admit- due affects offense and with tedly power danger without broad not that is the most the federalism fundamen- Conclusion postulate tal of our constitutional order.” reasons, we AFFIRM foregoing For omitted). (footnotes Ante at 676 court. ‍‌​​​‌‌​‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‍judgment of the district requirement limiting for ... a 2. “[A] AFFIRMED. jurisdictional in absence of a principle element, аlthough expressly adopted DeMOSS, concurring in Judge, Circuit Court, Supreme only legiti- is the part: in part dissenting and reading mate of the line of Wickard-Perez 1(D) 1(B), 1(C), Ante at 677. subparts and cases.” I concur majority parts II and III of the inquiry must determine not “[0]ur 1(A)(1) 248(a)(1) in section opinion. I also concur proscribes § in- simply whether Commerce”) (“Channels (or have) of Interstate might trastate that has 1(A)(2) (“Persons Things in Inter- commerce, section substantial effect on interstate Commerce”) opinion, majority but rather whether there is a national com- of Access conclude that the Freedom which mercial market abortion-related services 18 U.S.C. 248 et Entrances regulated Clinic conduct —consid- such that (hereinafter “FACE”), validly was not seq. scope light of the size and of the ered catego- either of the first two enacted under affects benchmark market — analysis set forth Clause ries of Commerce at 677. interstate commerce.” Ante in United States v. Court premises, disagree I with each of these Lopez, 514 logical deficiencies create fundamental (1995). However, I cannot con- L.Ed.2d majority’s analysis. analysis holding section cur in the question that the conduct There is 1(A)(3)(“Interstate Activity that ‘Substantial- is “intrastate and noncom- scribed FACE Activity”) majori- ly Affects’ Interstate threatening Injuring or mercial conduct.” ty concludes that the enact- opinion, which injure persons who seek to receive or deliver part falls within three of ment of FACE is, nature, very by its abortion services analysis Congress found because inherently activity; such conduct intrastate market in abortion-re- “national commercial person-to-person involves face-to-face and services,” Congress justi- and that lated place in the contact which must occur same regulation the determining in “that fied Likewise, such conduct at the same time. activity prohibited by activity intrastate —the money the does not involve transfer necessary the avail- the Act—was to еnsure perpetrator the consideration between other (both price) ability in terms of access and victim, is no commercial the and there in the national commercial abortion services perpetrator engage prompting motive the disagree I Ante at 678. Because market.” in such conduct. premises of hold- with the fundamental these majority premise I the first think explain my ings, I now to reasons. write in forth above is inaccurate opinion as set First, Lopez as I do not read respects. two

I. Rather, I see an affirmance Wickard. reinterpretation of which explicit a Wickard applying Lopez the clear and as Rather than says is the now in focuses on what the Court Supreme Court set forth criteria which (5th Lopez, F.3d Cir. Congress for to be able States ingredient essential 1993), grounds, 514 U.S. noneconomic on other intrastate conduct regulate aff'd (1995). com- substantially affects interstate which view, proscribed intra- the “national Particularly, my to the extent merce. activity concept appears “an in Lo state, must be market” our Circuit’s noncommercial Regardless, when the part larger pez opinion, of eco- it is dicta. of a essential Lopez, provided it a activity, regulatory Supreme in which the decided Court nomic intra- un appraising legislation unless the for would be undercut new framework scheme Clause, Lopez, 514 and it did not activity regulated.” were der the Commerce state majority The market” consideration at 1631. include the “national U.S. at necessarily super in ingredient analysis, in which recognizes this essential its own of “intra- paragraph analysis of its discussion from this Circuit. second sedes the earlier See, Pettigrew, inter- activity e.g., affects States v. F.3d state United (“While (5th Cir.1996) 1500, 1511 then ... one activity,” ante at but n. 1 see fact, powerless not a panel generally that FACE is blithely ignores the of this Court scheme, any larger regulatory previous decision of another pаrt of overrule “limiting rehearing by for a the full Court panel the need absent moves on discuss majority’s bane, sitting exception sec- to this rule principle,” as indicated en intervening premise above. there has been an ond arises when Supreme Court decision the United States “limiting principle” is only relevant decision.”). overriding the earlier Court’s the one dictated adopted Lopez a Court decision. Furthermore, the Fifth neither Circuit’s line of reading of the Wickard-Perez new majority opinion Lopez opinion, nor the in that, by specifying Congress to be cases case, establish criteria to define intrastate and noncommer- regulate able to what is referred to as a “national market.” the Interstate Commerce cial conduct under im- The words “national market” invoke the Clause, must be “an essential such conduct age something like the New York Stock part larger regulation of economic activi- Trade, Exchange, Chicago Board of ty, regulatory scheme could be which Exchange. and Futures Commodities unless the intrastate were undercut operate national markets These are which not meet these regulated.” Id. FACE does buyers through bring brokers and dealers legislation is not an essential criteria. The produce together and sellers an estab- which part larger regulatory of a scheme range prices re- lished of bid and ask if would be undercut does by current transactions the item flected criminal sanctions the intrastate scribe with being traded. It seems to me that ad- and noncommercial conduct which FACE least, very requires a “national market” dresses. product commodity high de- which has majority engag- gree fungibility. example, For a share of Consequently, the errs congressional stock in can sold on a national ing in an examination of “the U.S. Steel be buyer reports, the rele- market a seller in California to a findings, the committee testimony,” upon to determine New Yоrk in reliance the fact that the vant ante represents thing commercial share of stock the same whether found national Similarly, places. both a bushel of wheat market in abortion-related “limiting grown factor” that Nebraska will be the same as would serve as grown in Kansas once the danger minimize the to federalism. bushel wheat would grew in each bushel have moved absolutely nothing There farmers who is speaks that to the them into the national market. There is Lopez Court’s decision nothing Congressional in the Record that majority’s concept of a “national market” as majority procedure that one abortion is being limiting factor. As the establishes indicates, every procedure. just lim- like other abortion To opinion this “national market” person- contrary, unique, an abortion is a iting concept argument from our is a leftover al, procedure. highly individualized panel opinion Lopez. Circuit’s in See United func- 724. The mere fact that some individuals fimgibility, primary In addition to determine a “national market” is choose to or are forced to travel interstate to of a tion upon commodity based price for each unit not establish that receive abortions does commodity, that recent sales of the most is a “national market” for abortions. there that com- as to whether without distinction Nothing in the Conference Committee’s in Texas modity grown or manufactured findings speaks statement of to whether Michigan. in or manufactured grown or was fungible, nothing in abortion services are itself of- majority says that “Wickard speaks question finding this to the of wheth- fered, limiting principal, the national as a price availability er the of abortion ser- the national market” and “Perez cited wheat City York is same as that in vices New ante at for commercial credit.” See market Moines, Angeles Iowa. Los or Des be- But there is a serious distinction reasons, and a types of national markets foregoing аgree tween those For the I do not ser- market in abortion-related “national presence that the of a national market is the medieal/surgical An abortion is vices.” inquiry part relevant under three of the Lo- hospital clinic performed in a procedure Furthermore, pez analysis. assuming that There provider pregnant on a woman. by a presence of a national market is determi- commodity results product or which is no native, majori- I am unable to concur a woman ar- procedure. When from ty’s Congress found a “na- conclusion performed, have an abortion ranges to services,” tional market for abortion-related personal subject arrangement keystone majority’s which is the deter- provided. is to be When service that permissible that FACE is a exercise mination paid, the fee is service is rendered and Congress’s power the Commerce under ongoing value or marketabili- abortion has part Lopez. Clause as described in three of ty. course, majority recognize, I II. national Congress, found a has concluded ante at services. See market view, my FACE cannot survive accuracy of question I the factual 678-679. distinguish- analysis because the statute is only findings which the this conclusion. The permissible of con- regulations able from the relating to FACE are full made com- duct that affects interstate those identified the Conference Committee First, important aspects. in four merce ante at 671 n.2. Because the Report. See its terms FACE is a criminal statute express made these Conference Committee nothing to do with commerce. See has findings are bound to view these findings, we 560-61, at 1630. Lopez, 514 U.S. at 115 S.Ct. only findings Congress made. as the which Second, part FACE is not essential Therefore, determining whether activity, larger regulation of economic for abortion found a national market larger regulatory could be which that scheme only can look to the Conference Commit- activity were undercut unless the intrastate Report findings set forth therein. tee at 1631. regulated. See id. at “national market for abortion-- The words Third, jurisdictional contains no ele- FACE anywhere in appear do not related services” case-by- through ment which would ensure findings. five Conference Committee these prohibited inquiry that the conduct case only findings which one of these five id. interstate commerce. See therein affects “interstate com- even mentions the term police pow- Finally, general exercises FACE one, simply states merce” is the third by creating criminal sanctions in an area ers inter- that anti-abortion violence “burdens historically been rec- where the states have by forcing patients commerce to travel sovereign. id. at ognized to be See reproduc- where their access to from states departures at 1631-33. These four services is obstructed to other tive health Rep. fatal to the Lopez from the standard are H.R. states.” No. Conf. (1994), constitutionality of FACE. reprinted in 1994 U.S.C.C.A.N. protection by “[cjongressional regulation Its of Statute That A. Is a Criminal FACE Nothing persons things to Do with Com- that move interstate Has Terms that, fact, partic- commerce must ensure merce. posed by interstate ular ‘threat’ —whether an statutory of FACE does not con- text The activity actually per- threatens or intrastate — “commerce,” phrase the nor tain the word things plain clear nexus to sons or with commerce,” phrase “inter- “intrastate nor interstate commerce.” Ante at 674. FACE prohibited conduct state commerce.” The “jurisdictional nexus.” contains such to interfere with use of force FACE —the providing person’s obtaining or re- another approval legislation The of like FACE not inher- productive health services —does opens general the door to federalization any ently part conduct which is a involve Lopez felonies. reaffirms that this sort of fact, аctivity. prohibitions In commercial legislation is not envisioned the Com- apply nonprofit, to a charitable of FACE criminalization of non- merce Clause. The just facility provides abortions for free im- commercial conduct FACE is one charges they apply to a clinic that a fee as portant and the distinction between FACE providing abortion services. for part category legislation described Also, prohibited not have conduct does Lopez. three of any purpose of its own. The commercial regulated activity is commercial nature of the B. an Part FACE Is Not Essential important in the substantial consideration Larger Regulation Activi- Economic See, ly-affects prong Lopez analysis. of the ty, Regulatory Scheme Which 560, 115 at 1630 e.g., Lopez, 514 U.S. at Could Be Undercut Unless the Intra- (“Where activity substantially af economic Regulated. state Activities Were commerce, legislation regu fects interstate (em lating that will be sustained.” regulatory There is no national scheme phasis supplied)). activity regulated by regarding provision of abortion services. force, FACE, threats, the use of or intimi government not The federal does license intimidate, injure, dation to or interfere with clinics, approve abortion does not the train- statute, persons by the is identified be ing providers, regu- and does havior that is not commercial nature. delivery late the of abortion services to en- sure that minimum health standards are Despite majority’s protest to the con- government met. The federal has not creat- n.13, trary, see ante at 678 there is no differ- agency designated nor ed administrative prohibitions ence between the FACE and any department of the federal might a statute that federalize murder on the industry regulate the abortion in order to grounds killing people af- supply stabilize the of abortion services or majority’s fects interstate commerce. The encourage the dеmand for such services. distinction, suggested prohi- that the FACE relatively bitions “a have narrow common short, general regu- there is no federal goal or motivation and are all directed at a latory relating scheme to the abortion indus- victims, relatively narrow common set of try. Congress finding has made no to the many proscribed ... farther offenses cannot, therefore, contrary. FACE be an perpetrators in in- traveling involve common part any general regula- essential federal engaged in terstate commerce and victims scheme, tory because none exists. It thus commerce,” n.13, interstate ante at 678 goes saying prohibited without that the con- panel agreement untenable. Our is in not, requires, duct FACE does part FACE not fall does within two of the any general reg- the enforcement of undercut Lopez analysis, prong persons ulatory scheme. things in ma- interstate commerce. Yet the jority’s purported majority recognizes importance distinction relies on the presumed “perpetrators quotes operative it involvement of en- this factor when lan- gaged” engaged” guage very beginning in interstate at the section and “victims its notes, 1(3), discussing substantially-affects majority commerce. As the itself cate- part larger regulation of economic activi- Ante at power. Clause gory Commerce 561, 115 ty.” at at Lopez, 514 U.S. 115 S.Ct. Lopez, at S.Ct. 514 U.S. (quoting alone a criminal 1631). 1631. FACE stands as stat- majority proceeds to then But at ute, any larger regu- unconnected to federal way specific its around this try to rationalize latory purports reg- scheme. The statute Lopez by citing three earlier language of ulate intrastate noncommercial activities and proposition opinions for the Supreme Court fails, above, thus for the reasons noted regulate noncommercial Congress can that Lopez. satisfy requirement sub aggregate” which “in the local stantially affects interstate commerce: Unit No Jurisdictional Ele- C. FACE Contains Darby, v. 312 U.S. ed States Ensure, Through ment Which Would (1941); v. Fit 85 L.Ed. Wickard Case-by-Case Inquiry, That The Pro- bum, Ill, 82, 87 L.Ed. 122 317 U.S. Has a hibited Conduct Substantial Ef- States, (1942); and Perez United on Interstate Commerce. fect (1971). 28 L.Ed.2d simple matter for It would have been cor- cases demonstrate the These three Congress to have elements in included Lopez premise rather than rectness of the “juris provided which would have FACE there exception to it. In each of these eases are ones dictional nexus.” These elements comprehensive regulatory national was a explicitly prohibited tie the conduct in scheme, conduct was and the criminalized a criminal statute to interstate commerce. part regulatory clearly of that defined as jurisdictional of a nexus was an absence Darby, Supreme In Court dealt scheme. important factor in the dis Court’s of the Fair wage and hour laws with the approval of the Zones Act Gun-Free School Act, seq. § 29 U.S.C. 201 et Labor Standards 561-62, 115 Lopez. Lopez, See employer failed to was an who The defendant at 1631. statutory wages minimum but went pay the simplicity with which FACE could shipped product in interstate ahead and his jurisdietionally easily have been limited Wickard, Agricultural Ad- commerce. example, For the statute de- demonstrated. (“AAA”) justment was at issue. Act of 1938 “facility” meaning hospi- “a fines the term as a farmer whose farm fell under Filburn was tal, clinic, office, facility or other physician’s AAA had re- purview and who reproductive provides that health AAA. acreage allotment under the ceived an building or structure includes the expressly ability The AAA limited facility is 18 U.S.C. which the located.” crop their own farmers to raise a wheat 248(e)(1). qualified Congress § could have validated consumption and the Wickard case by limiting it to facilities that the definition Finally, Perez arose that limitation. “to a provide reproductive health services Protection context of the Consumer Crеdit in interstate com- person who has traveled § with the defendant 18 U.S.C. such services.” in order to receive merce in extortion- being engaged a loan shark who 248(a) (“Prohibited Likewise, activi- transactions as therein defined. ate credit ties”), prohi- Congress could have limited its directly deal with conduct These cases physical obstruc- to the use of force or bition regu- might frustrate the efforts of federal intimidate, or interfere with injure, tion to latory system. person has traveled interstate who provide ser- receive or commerce to majority that Lo- agree I with the While vices. pez’ s reaffirmation of the Wickard-Perez reason, opted For whatever meaning read as cases can be As a con- noncommercial, jurisdictional elements. ac- to include “regulate intrastate can yet factor that dis- sequence, this is another tivity interstate affects category legis- commerce,” tinguishes from the nothing I FACE ante see regulation of intrastate permitted lation permits the elimination of the substantially affects interstate activity which requirement that such “noncommer- further cial, commerce. activity” must be “an essential intrastate

690 obtaining on Are from what is D. Intrudes Issues Which abortion results FACE essentially Historically family regu- Local Concerns and Out- decision. That the Regulatory particular Power the Feder- is a side the lation of abortion local issue the Interstate by history. Under is borne out the Before Roe v. al Government Wade, 113, 705, Clause. 410 93 35 Commerce U.S. S.Ct. L.Ed.2d (1973), 147 the prohibiting states were by regulation of violent actions one The regulating by In abortions state statute. through another criminal laws person against unconstitutional, holding these state statutes component general is the most elemental Supreme grounded the Court its decisions in prohibited police power. The conduct liberty privacy the or elements of the First force, force, use of threats of or FACE —the appliсable and Fifth Amendments as made intentionally injure, physical obstruction the states the Fourteenth Amendment. intimidate, per interfere with another Roe, See 410 U.S. at 93 S.Ct. at 726- prohi type the classic son—are well within 27. progeny Neither Roe nor of its exercising general its bitions which state Supreme did the Court ever mention the adopt. Lopez police power may its deci (or Commerce Clause dormant commerce sion, Supreme repeatedly Court indicated clause), Supreme nor suggest did the Court Congress general does not have a that the that these statutes were unconstitution- power police power and that such rests exclu al because of their intrusion on interstate sively Lopez, See 514 with the states. U.S. upon any commerce nor “national market” (“Under n.3, at at 561 115 1631 n.3 our S.Ct. ' delivery of abortion services. Even to- system, possess primary “States federal day, in the wake of Roe and Planned Parent- authority defining enforcing 2791, 833, Casey, hood v. 112 505 U.S. S.Ct. (quoting law.”’” Brecht v. Abra criminal (1992), many 674 L.Ed.2d states have 619, 635, hamson, 1710, 507 U.S. S.Ct. regulate statutes which the circumstances of 1720, (quoting Engle 123 L.Ed.2d access to abortions and the conditions under 107, Isaac, 456 U.S. S.Ct. may which abortions be delivered. The fed- (1982)))); 564,115 id. at general eral has no such abor- (“Under the theories S.Ct. at 1632 that the regulation. tion presents ... it is Government difficult to perceive any power, limitation on federal regulation among Both the of violent acts even in areas such as criminal law enforce citizens and the of abortion ser- historically distinctively ment or education where States vices are areas local concern. sovereign.”); prohibitions imposed by have been id. at 115 S.Ct. The FACE bear all (“The at ... police Constitution of the characteristics of withhold[s] enactments of plenary police power power. Lopez from explicitly against warns every type excess, variety legislative would authorize enactment of making this fac- 1, 8)); Const., lеgislation.” (citing yet important art. tor one more distinction be- (“[T]o 567, 115 uphold at id. at tween FACE and the laws which have been here, approved permissible contentions regulations Government’s would of intra- upon pile have to inference inference in a state conduct that affects inter- fair to manner that would bid convert con state commerce. authority

gressional under Commerce police general power

Clause to a of the sort E. FACE Is Unconstitutional. States.”). retained Since has the FACE same defects and obviously was motivated to deficiencies which led Court to protect persons Lopez enact FACE the desire to conclude that the Gun-Free School seeking perform unconstitutional, to obtain or abortion ser- Act I Zones would hold distinctly vices. But this area is within the that FACE is likewise unconstitutional. It is province of local law. The Court con- not clear each whether of these four distinc- tions, alone, family quintessential standing legisla- sidered law to be the would exclude concern, example category of such a local see id. at tion from the third Commerce legislation Lopez. and the action of Clause identified in As the enforce, which, noted, may adopt states are “[t]hese itself Lopez Court formulations, amendment, they prohibited in the nature are from precise ” — Lopez, Boerne, be.” things they City cannot making enforcing.’ However, pres- at-, 115 S.Ct. at (quoting 117 S.Ct. at 2166 factors the above-detailed ence of all four of Cases, 3, 13-14, Rights Civil U.S. 3 S.Ct. is leaves no doubt FACE in this case that. (1883)). 18, 22-24, 27 L.Ed. 835 Section Five unconstitutional. thus was not intended to confer on the feder government police power al all mat over

III. rights ters related to the contem individual plated by the Fourteenth Amendment. majority concludes that the the Because Congress requi the gave Commerce Clause Boeme, City it is that acts After clear of FACE, adopt they “preter authority to site passed pursuant to Section Five must be questionable as substantially more mit the in nаture. This is not the case with remedial authority congressional [under of sertion FACE, to which seeks vindicate Fourteenth Amendment] Five of the Fourteenth Section rights through legislation Amendment direct (not purely private conduct criminalize to conduct, affecting rather than individual facilities).” property or at state directed remedy for providing a state violations. I would conclude at 681-682. Since Ante Thus, the enactment of FACE cannot be permit does not that the Commerce Clause justified as an exercise of the enforcement FACE, sup passage of and since Congress’s power under the Fourteenth Amendment. of Section Five the porting FACE under clearly in was raised Fourteenth Amendment interesting It is to note that the same liberty pretermit appeal, I am not at Congress passed passed FACE also However, light in of question. latter Religious Restoration Act of Freedom principles re which were well-established (former 1993, 107 Stat. 1488 U.S.C. Supreme Court’s cently reaffirmed “RFRA”), (hereinafter, seq.) 2000bb et — Flores, City Boerne v. decision of City Boeme. With each statute issue (1997), -, L.Ed.2d 624 laws, attempting these Five of the Four I conclude that Section legislation of a change through the result empower not does Con teenth Amendment FACE, prior Supreme Court decision: with gress to enact FACE. prior Bray v. Alexandria decision was purports FACE to criminalize conduct Clinic, 263, 113 Health Women’s private parties for conduct which is not (1993); 753, 122 and with L.Ed.2d facilities. property directed RFRA, Employment Division v. it was Plainly, Five of the Fourteenth Section Smith, pas contemplate Amendment does (1990). Supreme as the L.Ed.2d 876 Just sage provides a law. It that “Con of such Lopez explained limits on Com Court enforce, power gress shall have the City powers, so too did it merce Clause provisions of this appropriate legislation, the powers explain the limitations on the Boeme XIV, § amend. 5. The article.” U.S. Const. Five of the Fourteenth bestowed Section empowers “prоvisions” which Section Five City Both Boeme Amendment. Congress to enforce are directed at significant reflect what I believe be Const, XIV, § 1 amend. states. See U.S. part Supreme Court trend on the (“No deprive any person shall ... State articulating a renewed consciousness life, liberty, property, process without due Constitution, principles of our fundamental law____”). As the Court made is, government that our federal Boeme, City Five of the Section clear has powers, of limited federalism not authorize Fourteenth Amendment “did analysis, significant place in constitutional upon pass ‘general legislation powers separation of between and the citizen, legis rights of the but corrective be government must branches of the federal lation; is, may necessary be such respected. proper counteracting such laws as the

rv. reasons, respectfully I dissent

For these that FACE is majority’s conclusion

from the

constitutional. Samanie, Allen, Bruce Barnes & David BIENVENU, Petitioner, Carl Allen, Houma, LA, for Petitioner. Jr., Dubos, Wayne Zeringue, L. G. Michael TEXACO, INC; Director, Office Work- Jones, Walker, Waechter, Poitevent, Carrere Compensation Programs, De- er’s U.S. Fitzmorris, Jr., Denegre, John D. New & Labor; Company partment of Insurance Orleans, LA, Texaco, for Inc. and Insurance America, Respondents. of North America, Respondents. of North Co. Hertzig, Shep- Michael Scott Thomas O. No. 96-60625. herd, Jr., Clerk, Board, Benefits Review Car- Appeals, Court of United States DeDeo, Solicitor, Department ol Assoc. Fifth Circuit. Labor, Dir., Comp. Office of Pro- Workers Director, DC, grams, Washington, for Office Sept. Comp. Programs, Dept, of Worker’s Labor, Respondent. POLITZ, Judge,

Before Chief SMITH, HIGGINBOTHAM and Circuit Judges.

HIGGINBOTHAM, Judge: Circuit petitions Carl F. Bienvenu for review the decision of the ALJ affirmed denying Benefits Review Board him relief Longshore under the and Harbor Workers’ ‍‌​​​‌‌​‌‌‌​​‌​‌​‌‌‌‌​‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‍Compensation seq. 33 U.S.C. et petition again repair requires that we our troubled efforts to define maritime em- ployment. We and REMAND. REVERSE I. Texaco, Inc. in

Bienvenu worked production pumper as a Caillou Island field specialist. production Island Caillou is a five mile mile area field twelve located within three miles of the Louisiana coast and approximately 150 contains to 175 active

Case Details

Case Name: United States v. Frank Lafayette Bird

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 24, 1997

Citation: 124 F.3d 667

Docket Number: 95-20792

Court Abbreviation: 5th Cir.