The opinion of the court was delivered by: IRMA E. GONZALEZ
The following motions came on regularly for hearing on June 29, 1994, at 2:00 p.m., in Courtroom 11 of the above-entitled Court, the Honorable Irma E. Gonzalez presiding: 1) Defendant's Motion to Dismiss; 2) Plaintiffs' Motion for a Preliminary Injunction; 3) Proposed Intervenors' Motion to Intervene; and 4) Proposed Amici Curiae's Motion for Leave to file a Brief Amici Curiae in support of defendant's motion to dismiss.
Peter D. Lepiscopo of the law offices of Peter D. Lepiscopo appeared on behalf of plaintiffs Council for Life Coalition, Jim Harnsberger, Kathy Harnsberger, Jim Baxter, Sammy Wilson, Eric Camillo and Barbara Blackledge. Neil H. Koslowe, Special Litigation Counsel, Civil Division of the United States Department of Justice, and Kendall J. Newman, Assistant United States Attorney, appeared on behalf of defendant Janet Reno, Attorney General of the United States of America. Cynthia Thornton and Jane Hahn of the law firm of Hovey, Kirby & Thornton and Martha F. Davis of the NOW Legal Defense & Education Fund appeared on behalf of the Proposed Intervenors (National Abortion Federation; the Feminist Women's Health Centers; Womancare, Inc.; Commonwealth Women's Center; Capitol Women's Center; Dr. Susan Wicklund; Dr. George Tiller; The National Organization for Women ("NOW"); The California Medical Association; and The San Diego County Medical Society). Jordan C. Budd of the American Civil Liberties Union Foundation of San Diego & Imperial Counties appeared on behalf of Proposed Amici Curiae (the American Civil Liberties Union, the American Civil Liberties Union Foundation of San Diego & Imperial Counties and the American Civil Liberties Union Foundation of Northern California).
At the hearing on the foregoing motions, there being no opposition and for good cause shown, the Court GRANTED the Proposed Intervenors' motion to intervene as defendants in this action pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. The Court also GRANTED the Proposed Amici Curiae's motion for leave to file a brief amici curiae in support of defendant's motion to dismiss. The following order thus addresses the defendant's motion to dismiss and the plaintiffs' motion for a preliminary injunction.
This is an action for declaratory and injunctive relief seeking to enjoin the enforcement of The Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248 ("FACE") that President Clinton signed into law on May 26, 1994. The critical portion of FACE at issue here provides that whoever "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services" shall be subject to certain criminal penalties and civil remedies. (FACE, § 3).
FACE specifically defines several of its key terms. (Id.). The term "interfere with" means "to restrict a person's freedom of movement" (Id.). The term "intimidate" means "to place a person in reasonable apprehension of bodily harm to him-or herself or to another" (Id.). The term "physical obstruction" means "rendering impassable ingress to or egress from a facility that provides reproductive health services . . or rendering passage to or from such a facility . . . unreasonably difficult or hazardous" (Id.). The term "reproductive health services" means "reproductive health services provided in a hospital, clinic, physician's office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy" (Id.).
The stated purpose of FACE is to "protect and promote the public safety and health and activities affecting interstate commerce by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services." (FACE, § 2). In enacting FACE, which is enforceable criminally and civilly by the Attorney General, and civilly by State attorneys general and individuals who are victimized by the prohibited conduct, Congress compiled and responded to a substantial legislative record of the use of violence, threats of violence, mass blockades, invasions of abortion clinics, and destruction of medical facilities by bombings, arson, and acid and gas attacks. See, e.g., S. Rep. No. 117, 103d Cong., 1st Sess. 3 (1993) ("Senate Report"). Congress determined that existing laws were inadequate to stop this violence, and that federal legislation was necessary and appropriate.
Plaintiffs seek a preliminary injunction against the enforcement of FACE on a variety of constitutional and statutory grounds. Defendant Janet Reno, Attorney General of the United States of America opposes plaintiffs' application for a preliminary injunction and moves to dismiss this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In the motion to dismiss, defendant argues that this action is non-justiciable and that, in any case, plaintiffs have failed to state a claim upon which relief can be granted.
At the hearing on these motions, defendant conceded that, in light of the first amended complaint and accompanying supplemental declarations of the individual plaintiffs filed after the motion to dismiss,
there no longer is an issue regarding the justiciability of this action. Accordingly, the Court addresses defendant's alternative argument that plaintiffs have failed to state a claim upon which relief can be granted.
Plaintiffs seek to enjoin the enforcement of FACE on the ground that it abridges freedom of expression and association protected by the first amendment, violates the establishment clause and the free exercise clause of the first amendment, violates the Religious Freedom Restoration Act of 1993, and that Congress had no authority to pass FACE either pursuant to Section 5 of the fourteenth amendment or the Commerce Clause. The Court first addresses plaintiffs' core claim that FACE abridges freedom of expression.
The fundamental flaw underlying plaintiffs' arguments that FACE violates the free exercise clause of the first amendment is their assertion that FACE applies to protected expression. In fact, by its terms, FACE proscribes only conduct -- "force," the "threat of force," and "physical obstruction," which is used intentionally to injure, intimidate, or interfere with persons because they seek to obtain or provide reproductive health services. The Court rejects as insupportable any suggestion that shootings, arson, death threats, vandalism, or other violent and destructive acts addressed by FACE are protected by the first amendment merely because those engaged in such conduct "'intend thereby to express an idea.'" Wisconsin v. Mitchell, 124 L. Ed. 2d 436, 113 S. Ct. 2194, 2199 (1993) (quoting United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968)). "Violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection." Roberts v. United States Jaycees, 468 U.S. 609, 628, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982). Thus, like the statute that was upheld on first amendment grounds in Wisconsin v. Mitchell, FACE is aimed at conduct, not expression.
Plaintiffs attempt to argue that FACE penalizes "anyone who 'injures' anyone involved in the abortion process," and that because their demonstrations, prayers, distribution of materials, and sidewalk-counselling may inflict emotional and psychological "injuries," these activities are proscribed by FACE. (Memorandum of Points and Authorities in Support of Plaintiff's Application for Preliminary Injunction at pp. 8-11) ("P. Brief"). However, plaintiffs misread the statute. FACE does not apply to "anyone who 'injures' anyone involved in the abortion process." Instead, FACE criminalizes the use of "force" the "threat of force" and "physical obstruction" which are acts that are outside the scope of the first amendment's protections. Thus, those peaceable activities engaged in by plaintiffs that are not accompanied by the use of force, the threat of force, or physical obstruction, are not proscribed by FACE.
Plaintiffs further contend that FACE imposes content-based and viewpoint-based restrictions on protected expression because it applies only to conduct intended to injure, intimidate, or interfere with a person who seeks to obtain or provide reproductive health services, and not to conduct intended to injure, intimidate, or interfere with a person for any other reason. They argue that FACE is unconstitutional ...