No. --------------------------------------- Feedback Box:

________________________
_______________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

_______________

Regina Rene Dinwiddie, pro se, Petitioner

vs.

United States of America,

and Janet Reno, Attorney General of the United States, Respondent _________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

Regina Dinwiddie, pro se
1031 NE 88th
Kansas City MO 64155
816-436-7554

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Petitioner, Regina Rene Dinwiddie, In Propria Persona, Petitioner, respectfully asks that a writ of certiorari issue to the United States Court of Appeals for the Eighth Circuit to overrule 18 U.S.C. 248 ("FACE") as unconstitutional, and to vacate its ruling against me which was predicated upon FACE.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals, 8th Circuit, is cited as U.S. v. Dinwiddie, 76 Fed. 3rd 913. (8th Cir. 1996). It is reproduced in Appendix A. The May 9, 1996 decision of the U.S. Court of Appeals, 8th Circuit, to deny En Banc review, is reproduced at the end of Appendix A. The Permanent Injunction of the U.S. District Court, the Western District of Missouri, is cited as U.S. v. Dinwiddie, 885 F.Supp. 1286 (W.D.Mo. 1995) (March 21, 1995). It is reproduced in Appendix B. Following the Injunction in Appendix B is the related Contempt order, cited as U.S. v. Dinwiddie, 885 F.Supp. 1299 (W.D.Mo. 1995) (April 12, 1995) A Temporary Restraining Order was granted January 6, 1995,

JURISDICTION

The U.S. Court of Appeals, 8th Circuit, denial of motion for En Banc review was issued May 9, 1996. These rulings and this motion are set forth in Appendix A. This court's jurisdiction is invoked under title 28, U.S.C. ß 1257(3)

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article 1 ß 8 cl. 3 "[Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" (Hereinafter "Commerce Clause")

18 U.S.C. ß 248 Freedom of Access to Clinic Entrances ("FACE") Religious Freedom Restoration Act ("RFRA"), 42 U.S.C> ß 2000bb (1993)

The First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibitint the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,...to have compulsory process for obtaining witnesses in his favor...." The Fourteenth amendment: "...Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

QUESTIONS PRESENTED

1. Did Congress err in citing Art. I, ß8, cl.3 (Commerce Clause) as basis for enacting 18 U.S.C. ß248 (FACE)?

2. Did Congress err in asserting affirmative powers to enact 18 U.S.C. ß248 (FACE) through Section 5 of the 14th Amendment?

3. Should FACE be tested by whether the statute assists states by providing uniformity of commercial intercourse between states where (1) lack of uniformity would have inhibited commerce, and where (2) lack of ability to experiment would not impair commerce?

4. Does the construction of FACE set objective limits to words and behavior at clinic and church sites, or does it "chill" the First Amendment right to speech, expression, and "robust debate" of abortion protesters?

5. Is the demonstration that a statement is true, logical, and/or irrefutable a defense against that statement being prosecuted as an unlawful threat of harm, or "so infused with violence as to be indistinguishable from a threat of physical harm"?

6. Should statements selected out of context be the basis for charges of "threats" under FACE? Can refusal to listen to the full contents of a message being prosecuted as a threat corrupt one's capacity and diminish one's standing of the hearer to "reasonably understand" the message as a threat?

7. Is a political statement, in support of an opinion about whether a court should consider a particular defense, prosecutable as a "threat" under FACE?

8. Does FACE violate the Freedom of Religious Expression clause in the First Amendment, and 42 U.S.C. ß 2000bb (1993)("RFRA")? Should the demonstration that a statement is plainly taken from, consistent with, and/or founded upon the Bible be a defense against that statement being prosecuted as an unlawful threat of harm? 9. Does FACE violate the 14th Amendment prohibition of selective prosecution?

10. If the Supreme Court could prohibit states from finding that Life begins at Conception, because doctors and preachers weren't in perfect agreement about it, shouldn't the fact that Federal Courts can't agree whether FACE is constitutional cause this Court to throw out any convictions based on so uncertain a statute?

11. Is 18 U.S.C. ß 248(3)(d) (defining the Constitutional Rights not to be breached by FACE) negated by the overbreadth and vagueness of the remainder of 18 U.S.C. ß 248?

12. Are the accused entitled to call witnesses in their defense?

13. Do FACE's lack of time limitations make it constitutionally defective?

14. Are FACE's fines and prison sentences unconstitutionally severe?

15. Does FACE's provision that charges may be brought by a private person, a State Attorney General, and the U.S. Attorney General, concurrently, for the same set of facts, subject defendants to Double Jeopardy or Cruel and Unusual Punishment?

16. Was FACE constitutionally applied in the instant case?

17. Does FACE violate the Tenth Amendment?

Appendix contents

1 Appendix A

U.S. v. Dinwiddie 76 F.3d 913 (8th Cir. 1996) 3
En Banc Review Denied 20

Appendix B

U.S. v. Dinwiddie 885 F.Supp. 1286 (W.D.Mo. 1995) 21
U.S. v. Dinwiddie 885 F.Supp. 1299 (W.D.Mo. 1995) 34

Appendix C

18 U.S.C. ß 248 ("FACE") 43
42 U.S.C. ß 2000bb (1993)("RFRA") 45
Defensive Action Statement 47
Verdict Form 48
Context of Gen. 9:6 quote 49

Appendix D

1/6/95 Transcript
Fn68-Threat defined as "as perceived" Tr. 6 50
Fn68-Message, not manner, is hostile Tr. 25-26 51
Fn48-Petitioner assaulted, blamed for assault Tr. 30-31 53
Fn65-Prejudicial evidence relevant Tr. 41 55
Fn43-Truth of Petitioner's statement acknowledged Tr. 49-51 56
Fn23,64-Court promises to ignore witness' testimonial Tr. 95-96 59
Fn52-Examples of messages: Petitioner Tr. 102-106 61
Fn64-Interchange with Patty Brous Tr. 108-111 66
Fn63-Defensive Action Statement: appeal to court Tr. 112-114 70 (Cont'd from p. 84) Tr. 115 73 Fn2,63-5th Amendment context Tr. 118-123 76

1/24/95 Transcript
Fn6-Court determines Petitioner is dangerous Tr. 17-18 82
Fn5,69-Steps taken to remove right to jury Tr. 30-31 84

1/26/95 Transcript
Fn8-Motion for recusal Tr. 8-15 86 Fn1-Upgrading Venable charge Tr. 44-45 94
Fn67-Prejudice: judged by Leake's actions Tr. 72-74 96
Fn68-Meade: "They construe anything as threats" Tr. 85 99
Fn61-Policeman's perspective of force Tr. 94-95 100
Fn64-Witness rejected for technicality Tr. 96-97 102
Fn49-Petitioner's messages irrelevant Tr. 101 101
Fn1-Venable: Petitioner's view Tr. 105-109 105
Fn48-Petitioner: victim of many assaults Tr. 110 110
Fn52-Petitioner's messages to Dr. Crist Tr. 111 111
Fn1-Petitioner's statements to Patty Brous Tr. 112 112 Petitioner's view of Judge Coburn Tr. 112 112
Fn48-Petitioner: victim of assaults Tr. 113 113
Fn48-Are threats against Petitioner relevant? Tr. 114 114
Fn48-Another threat against Petitioner Tr. 115 115
Fn11,40-Court: Legal picketing is childish Tr. 116 116
Fn9-Oral argument by Michael Hirsh Tr. 120-129 117
Fn55-Government: intent v. motive Tr. 130-131 127
Fn68-Government: judge Petitioner by others Tr. 137 129

3/9/95 Transcript
Fn20-Interogatories placed on record Tr. 5-6 130
Fn23,55-Court tired of Petitioner's views Tr. 12 132
Fn43-Map Madness, Court's vagueness Tr. 13-22 133
Fn10,66,68-Oral Argument: Michael Hirsh Tr. 25-26, 29-37 143
Fn21,46-500 feet versus 501 feet Tr.40 154

3/27/95 Transcript
Fn13,43-Court's last minute notice and taunting Tr. 2-5 155
Fn49-Lot of time parroting her beliefs Tr. 11 159
Fn25,33,37-Pamela Lyon Tr. 14-15, 24-27, 38 160
Fn27,29-Tamara Morris Tr. 45-46, 55, 60-63, 65-66 167
Fn26,31,34-Cliff O'Rear Tr. 66, 82-83, 88 175
Fn14,32,44-John Rich Tr. 98, 102-103 179
Fn28,30,35,36-Erika Fox Tr. 125, 130, 134-135, 140-141 182
Fn39,55-Enough of a Sermon Tr. 164 188
Fn13,43-No time to prepare Tr. 183-184 189
Fn39-Intent is not relevant Tr. 190-191 191
Fn41,52-Petitioner's perspective Tr. 193-202 193
Fn45-Abortion is palatable Tr. 209 203
Fn13,43-Recusal motion Tr. 219-221 204
Fn38-Coons, Leake perspective Tr. 165, 175-176, 179-180 207
Fn55-Motives are irrelevant 1/26/95 Tr. p. 135 212

Table of Authorities

U.S. v. Lopez, 115 S.Ct. 1624 (1995) Sharon Hoffman, Trudie Matthews, Diane Hoefling, Rev. Ronnie Wallace, and Rev. John Bradley v. James B. Hunt, and the State of North Carolina, and the United States of America, Intervenor 3:93CV393-P, U.S. District Court W. Dist. of N.C. 6, 8, 9, 10, 11, 12, 13, 15, 39

American Life League, Inc. v. Reno, 855 F.Supp. 137 (E.D.Va. 1994), (cert. denied Oct. 2, 1995) 6, 7, 16, 19, 20, 21, 28, 33, 37, 39

Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753 (1993) 7, 8

United States v. Wilson, 880 F. Supp. 621, 628 (E.D. Wis. 1995), Rev.d, No. 95-1871, 1995 WL 765450 (7th Cir. Dec. 29, 1995): 8, 9, 17

National Organization for Women, Inc. v. Scheidler, 114 S.Ct. 798 (1994) 9

Cheffer v. Reno, 55 F.3d 1517 (11th Cir 1995) 9

Wickard, 317 US. at 128 10

Woodall v. Reno, 47 F.3d 656 (4th Cir. 1995) 19

Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926) 25

Scheidler, 897 F. Supp. 1047 (N.D. Ill. 1995) 9, 29

Brandenburg v. Ohio, 395 U.S. 444 (1969) 29

Roe v. Wade, 410 U.S. 113 27, 37

John Peter Zenger, New York (1735) 35, 38, 39

Harmelin v. Michigan, 501 U.S. 957 (1991) 40

Solem v. Helm, 463 U.S. 277 (1983) 40 McGruder v. Puckett, 954 F.2d (5th Cir.), cert. denied, 113 S.Ct. 146 (1992) 40

Bradford v. Whitley, 953 F.2d 1008 (5th Cir.), cert. denied, 113 S.Ct. 91 (1992) 40

Watts, 394 U.S. at 706 30

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

Article 1 ß 8 cl. 3 ("Commerce Clause") 5-13, 15-17, 39

The First Amendment 29, 38

The Fifth Amendment 2

The Eighth Amendment 40

The Tenth Amendment 17

The Fourteenth amendment 17

UNITED STATES CODE

18 U.S.C. ß 248 (1994) 1-2, 4-10, 13-21, 24, 27-29, 38-40 Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. ß 2000bb (1993) 27

Article 1 ß 8 cl. 3 "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Fifth Amendment: "No person shall be...compelled in any criminal case to be a witness against himself..."

The Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."

The Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor porhibited by it to the States, are reserved to the States respectively, or to the people."

The Fourteenth Amendment: "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The provisions of 18 U.S.C. ß 248 (1994) are reprinted in the Appendix hereto, App. 43.

The provisions of 42 U.S.C. ß 2000bb (1993) are reprinted in the Appendix hereto, App. 45.

Table of Contents

Opinions Below iv

Jurisdiction iv

Table of Authorities v

Constitutional and Statutory Provisions Involved vi

Statement of the Case 1

Reasons for Granting the Writ 5

Conclusion 40

Index to Appendices App. 1

Appendix A App. 3

Appendix B App. 21

Appendix C App. 43

Appendix D App. 50

STATEMENT OF THE CASE

This case challenges the constitutionality of a Permanent Injunction (hereinafter "Injunction") (App. B) authorized under the "threats of force", "intimidation", and "obstruction" sections of 18 U.S.C. ß248 (hereinafter "FACE") entered on March 21, 1995 by the Honorable Joseph E. Stevens, Chief Judge in the U.S. District Court, Western District of Missouri, against the Petitioner. The Respondent in this case is the U.S. Government, with Intervenor, U.S. Attorney General Janet Reno. Petitioner is opposed to abortion, and has demonstrated outside Planned Parenthood of Greater Kansas City and expressed opposition to abortion. This case does not involve blocking doors, or injury to persons or property. Respondents requested injunctive relief enjoining the Petitioner from threatening clinic staff. The Injunction duplicates provisions of FACE, the only addition being that Petitioner may not use a bullhorn within 500 feet of any reproductive health care facility, as defined by FACE, anywhere in the United States. Respondent filed "Complaint" and "Application for Temporary Restraining Order and Preliminary Injunction, with Supporting Suggestions" January 6, 1995. That same day witnesses were heard at a hearing, and a Temporary Restraining Order was issued ordering petitioner to obey FACE, and to stay 500 feet away from FACE-defined clinics. At that hearing Petitioner was ordered to answer a complex question with a simplistic "yes" or "no", forcing her to plead the Fifth Amendment, a pleading she was not allowed to subsequently retract when given further opportunity to explain.


1- On January 5, the Government upgraded a petty complaint, which had been in traffic court ("municipal ordinance") for five months without any activity, to a criminal charge ("general misdemeanor in an Associate Circuit Court"). Appendix D, pp. 94-95. (1/26/95 tr. pp. 44-45.) The complaint alleged Petitioner had pushed Planned Parenthood's gardener with her bullhorn. Petitioner said the contact was a "tapping", like tapping with one's finger to get someone's attention. Appendix D p. 105-109, (1/26/95 transcript pp. 105-109). The complaint became a crucial allegation in the Injunction. U.S. v Dinwiddie, 885 F.Supp. 1286, 1292 (W.D.Mo 1995) After the Injunction was ordered, a jury, on 4/12/95, (the same day the Contempt ruling was handed down) found Petitioner technically guilty but requested the punishment be "a fine only with a request from the jury that the fine be the very minimum that can be assessed by the court." Appendix C, p. 48. What more likely triggered the Injunction, being the only allegation proximate to the January 6, 1995 original filings, were statements regarding the Honorable Michael Coburn, Judge of the Jackson County, Missouri, Circuit Court, after he died December 27, 1994. Appendix D, p. 112 (1/26/95 transcript p. 112)

2-Petitioner was asked "Is it appropriate and acceptable to shoot a doctor who is lawfully performing an abortion?" Petitioner's answer, reminiscent of Matthew 21:23-27, was that she believes the Court, before it can logically evaluate the answer to that question, must address whether such actions "save the life of an unborn child." Petitioner also objected that "It is calling for a legal conclusion." The Court ruled, "I will infer that the answer that she is refusing to give will be contrary to her civil and criminal interests." When Petitioner made a later attempt to interject further explanation, that was not permitted because she could not retract her invocation of the Fifth Amendment. (Appendix D, pp. 76-79. 1/6/95 tr. 118-121) After she had opportunity to explain herself in a subsequent hearing, the Court ruled that the later more articulate explanation seemed like a "retraction," compared with the earlier clumsier responses, but that must have been because she "discovered the consequences of the temporary restraining order." U.S. v. Dinwiddie, 885 F.Supp. 1286, 1293 (W.D.Mo. 1995)


On January 23, respondent filed "Plaintiff's...application for...equitable relief, compensatory damages, and civil penalties," noting that FACE authorizes "compensatory...[and] punitive damages [which] may be obtained...by any person involved in" abortion. On January 24, Petitioner filed "Memorandum in support of motion..." Petitioner asserted that her statements, evaluated objectively, are not threats. She explained her confusion over whether FACE's vague terms "interference" and "obstruction" apply to her "sidewalk counseling". Petitioner also on that day filed "Motion to vacate/rescind order of consolidation" on the grounds that since Plaintiff sought jail and fines, Petitioner would exercise her right to a jury trial, and that more time was needed for discovery. A hearing between counsel, without witnesses, was held that day, wherein the Government announced it would withdraw its request for fines and jail time so that "we don't have a jury trial question in addition to everything else." At that hearing, The Court justified his urgent hearing schedule by his conviction that Petitioner was "dangerous." On January 25, 1995, Respondent filed "Plaintiff's response..." which explained the steps it had taken to remove Petitioner's right to trial by jury. On January 26, 1995, in "Answer and...demand for jury trial," petitioner raised issues of prior restraint, freedom of press, speech, religion, and to peaceably assemble, and equal protection of the law. Petitioner filed "Motion for Recusal" on the basis of The Court's interruptions of defense counsel and observation that Petitioner was "dangerous". Witnesses were heard, and Petitioner argued that even if the worst allegations were true they pale against statements the Supreme Court has protected. On January 27, 1995, The Court issued a Preliminary Injunction ordering obedience to the temporary restraining order.


3- "Because Mrs. Dinwiddie is persistent in communicating her message, some persons experience a subjective feeling or apprehension that they are in physical danger or risk. Mrs. Dinwiddie, however, has never caused or attempted to cause bodily harm to any person with whom she was attempting to communicate." "[Some find her] offensive provocative, and traumatic. [But] Sometimes the persons that she communicates with are interested in discussion or learning the facts about abortion. In fact, some of the persons successfully counseled were not initially interested in receiving the/her message. However, [defendant] and other sidewalk counselors have successfully saved the lives of many children from death through abortion because of their persistence and tenacity." Memorandum in support of motion to dissolve restraining order..., page 3, filed January 24, 1995.

4-"On occasion, Mrs. Dinwiddie has stepped in front of abortion-bound women who are on their way to abortion facilities in order to hand them literature, show them pictures, and attempt personally to dissuade them from aborting their children. In such instances, the abortion-bound women may feel a momentary interference and obstruction." Ibid, page 4. (Emphasis added.)

5-See Appendix D, pp. 84-85 (1/24/95 Tr. 30-31)

6- Appendix D, pp. 82-83 (1/24/95 tr. pp. 17-18)

7- "...that point is now moot, because Plaintiff has amended its Complaint to delete claims for any relief except equitable relief. Dinwiddie is not entitled to a jury trial on equitable claims." PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO VACATE...." page 1-2, January 25, 1995.

8- For oral argument, see Appendix D, pp. 86-93 (1/26/95 Tr. 8-15)

9-Appendix D, pp. 117-126 (1/26/95 tr. 120-129)


At the Permanent Injunction hearing March 9, Petitioner explained why the Injunction constituted Prior Restraint. The Court, referring to people who engage in what he acknowledged as constitutionally protected speech "on the streets and sidewalks," said "It just really astounds me that apparently reasonable adult human beings can conduct themselves persistently so irrationally and in such a child-like manner." A similar evaluation of Petitioner became The Court's determining consideration in its March 21, 1995 Permanent Injunction. Two days later, Thursday morning, March 23, 1995, Petitioner was accused of violating the Injunction. The Respondent's "Motion for order...to show cause..." was filed at 2:30 that afternoon, and The Court set hearing (likewise filed at 2:30) for the following Monday morning even though both Petitioner's attorneys had trial commitments. Petitioner's attorney attempted to notify The Court of his conflict but was unsuccessful, and on Monday Morning, The Court ordered him to leave his trial in another city to come to The Court's hearing. He thus had no opportunity to subpoena witnesses, consult with Petitioner, or do research. Several witnesses said Petitioner was in their way, and The Court accepted a definition of "intimidation" which describes the goal of every sidewalk counselor: "Intimidation is something that makes someone uncomfortable in a situation, that makes them alter their course of action or judgment." The Court drew upon this definition April 12, 1995 in finding Petitioner violated FACE, ruling that "protester admitted that her intention was to force victims to think about what they were doing in providing reproductive health services at clinic and to dissuade them from doing it. 18 U.S.C.A. ß(a)(1)." The FACE citation indicated includes the term "intimidate." The Court said this fact satisfied FACE's requirement of "a finding of intent on the part of the defendant." Petitioner appealed the Permanent Injunction on November 13, 1995, and on February 16, 1996, the U.S. Court of Appeals, 8th Circuit, affirmed. The Court ruled that Congress had Commerce Clause jurisdiction because "Planned Parenthood...its staff, or its patients are 'in interstate commerce'" U.S. v. Dinwiddie, 76 F.3d 913, 919 (8th Cir. 1996) and "there is a rational basis for concluding that the conduct prohibited by FACE substantially affects interstate commerce." Supra at 920. The Court said "The meanings of 'interfere with' and 'physical obstruction' are even clearer in FACE because...FACE provides narrow definitions of these terms." Supra at 924. The Court agreed with the District Court that "Dr. Crist's reaction to" petitioner's statements were a factor in determining the meaning of the statements. Supra at 925.


10- Appendix D, pp. 145-147 (3/9/95 tr. 30-32)

11- Appendix D, p. 116 (1/26/95 tr. p. 116)

12- "Dinwiddie denied making inflammatory statements to Crist, Brous and others about which there was completely credible testimony... This Court is completely unpersuaded by the testimony of Dinwiddie and her mother. ...both of these witnesses, by their testimony and their demeanor at the first hearing, demonstrated themselves to be zealots of at least occasionally questionable rationality and virtually no credibility." U.S. v. Dinwiddie, 885 F.Supp. 1286, 1292 (W.Mo. 1995)

13- Appendix D, pp. 155-158, 189-190, 204-206 (3/27/95 tr. 2-5, 183-184, 219-221)

14- Appendix D, pp. 180-181 (3/27/95 tr. 102-103)

15- U.S. v. Dinwiddie, 885 F.Supp. 1299, 1300 (W.D.Mo. 1995)

16- Supra, 1304.


But the Eighth Circuit said the District Court went too far in saying "anything that could be 'remotely construed' to violate FACE" was prohibited. Nor could statements to the media be restricted, or signing a petition expressing certain views. Supra at 927-928.

Reasons for Granting the Writ

THE COMMERCE CLAUSE CANNOT SUPPORT FACE In addition to the following arguments, Petitioner joins the arguments of James A. Ketchum v. United States of America submitted recently by Alex Flynn of Milwaukee, Wisconsin. I. CONFLICTING OPINIONS IN THE COURTS Appeals courts have accepted Commerce Clause jurisdiction for FACE, but two U.S District Courts have not. One reason is that federal cases addressing FACE's viability under the Commerce Clause are divided between "before Lopez" (U.S. v. Lopez, 115 S.Ct. 1624 (1995)) and "after Lopez." Among the former must be included cases which came down after Lopez, by the calendar, but which were nevertheless decided by criteria which existed only before Lopez. According to the U.S. District Court, Western District of North Carolina, that was the error of its own superior court in finding FACE constitutional: [This] Court agrees with Plaintiffs that Lopez, supra, represents new law which must inform the proper resolution of this case. In Lopez, the Supreme Court clarified Congress can only regulate activity that substantially affects interstate commerce pursuant to Art. I ß 8, cl. 3, [the Commerce Clause] although some cases had seemed to indicate that Congress could regulate any activity that affected interstate commerce. In American Life League, supra, the Fourth Circuit applied the mere affects formulation of the Commerce Clause test and therefore concluded that "the commerce power permits Congress to regulate activities affecting reproductive health services." Id. at 647. Neither this test nor the Commerce Clause holding in American Life League, supra, are viable after Lopez. In addition, the Court also finds that Lopez clarifies several limitations on Congress' commerce power which further dictate that FACE is invalid for the reasons given in this opinion. Sharon Hoffman, Trudie Matthews, Diane Hoefling, Rev. Ronnie Wallace, and Rev. John Bradley v. James B. Hunt, and the State of North Carolina, and the United States of America, Intervenor 3:93CV393-P, U.S. District Court W. Dist. of N.C., page 28. Analyzing American Life League, Inc. v. Reno, 855 F.Supp. 137 (E.D.Va. 1994), (cert. denied Oct. 2, 1995)

Hoffman, supra, ridiculed the Findings of Fact of the Senate Committee on Labor and Human Relations Report which say: ...the problem Congress is addressing is national in scope and exceeds the ability of a single state or local jurisdiction to solve. Under these principles, S. 636 falls easily within the commerce power. (S. Rep. No. 117, 103rd Cong. 1st Sess. 3 (1993))

The Court observed,

The Court believes it can be said without fear of contradiction that breaking and entering of homes and businesses, rape, burglary, assault and even murder, among other crimes, are problems which are national in scope, and apparently exceed the ability of a single state or local jurisdiction to solve. In fact every crime against property or persons obviously affects interstate commerce to some minimal degree. This type of reasoning calls to mind the saying that little fleas have little fleas on their backs to bite them and littler fleas have littler fleas on their backs to bite them and so on ad infinitum....Thus, the mere fact that Congress believes a problem is national in scope clearly does not justify ignoring the constitutional requirement that an activity must at least have a substantial affect on interstate commerce to justify regulation by our Federal Government ...nor does it justify the transformation of state law crimes into federal offenses in the absence of an independent constitutional basis for congressional authority." Hoffman, Supra at 29-30.

In answer to the claim that abortionists purchase goods and services across state lines, so Congress can protect them, the Court points out that ...the regulatory target of FACE is the protest activity by the Plaintiffs, not the abortion clinic.... So here again the issue is whether the actions of those persons who engage in protests at an abortion clinic may be subject to criminal prosecution by the Federal Government..., not whether Congress can regulate commerce. Hoffman, Supra at 30-31.

U.S. v. Dinwiddie, 76 Fed. 3rd 913, 919 (8th Cir. 1996) said the "abortion traffic across state lines" argument is supported by Bray v. Alexandria:

Planned Parenthood has a number of patients and staff who do not reside in Missouri and who, therefore, engage in interstate commerce when they obtain or provide reproductive-health services. Substantial numbers of women travel across state lines to obtain reproductive-health services. S. Rep. No. 117, 103d Cong., 1st Sess. 13-14, 31 (1993); Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 792 (1993)

A similar finding was made by American Life League, supra, page 141: The legislative history of FACE shows that Congress had evidence both of numerous women crossing state lines to obtain reproductive services no longer available in their home states and of anti-abortion organizations crossing state lines in order to orchestrate violence against abortion providers and patients.

...to which Hoffman, supra, page 31 responded:

The Court is nonplused to understand why the [Senate] Committee cites Bray, for there is no contention that the protestors hinder in any way the interstate travel of women seeking abortions....

Hoffman went on to quote Bray's own argument that interstate travel is not the target of prolifers, so there is certainly no conspiracy to interfere with interstate travel; nor do they erect "actual barriers to interstate movement" or cause interstate travelers to be "treated differently" than intrastate travelers, two tests of Commerce Clause jurisdiction. The ruling concludes, "Clearly Bray shows that Congress cannot use the interstate movement of patients and staff to justify FACE." Hoffman quoted from Bray to show what prolifers would have to have done to have come under Commerce Clause concern: ...a conspiracy to rob an interstate traveler would not, of itself, violate ß 241. But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel, or to oppress a person because of his exercise of that right, then...the conspiracy becomes a proper object of the federal law under which the indictment in this case was brought. Bray v. Alexandria Women's Health Clinic, 113 S.Ct. 753, 762 (1993)

Addressing the interstate business of Planned Parenthood, U.S. v. Dinwiddie, 76 Fed. 3rd 913, 919 (8th Cir. 1996) said: ...if Planned Parenthood of Greater Kansas City, its staff, or its patients are "in interstate commerce," FACE's protection of them from Mrs. Dinwiddie's disruptive activities is a valid exercise of the commerce power. ...A business is in interstate commerce when it "directly engage[s] in the production, distribution, or acquisition of goods or services in interstate commerce."

But Hoffman, supra, page 40, observed that while Planned Parenthood may be commercial, FACE does not regulate Planned Parenthood, but "the protest activities of the Plaintiffs [which,] like the gun possession at issue in Lopez, are simply not properly characterized as commercial or economic activities" and are not fair game for Commerce Clause jurisdiction. ...the notion that Congress can enact FACE because the activities of these protesters results in fewer abortions as well as less interstate movement of people and goods is really straining at gnats. In fact, FACE is not aimed at commercial activity of the abortion clinics. It is aimed at the basic freedom of individuals to engage in civil protest. Hoffman, supra at 32. ....Otherwise, Congress could very well regulate such subjects as family law, day-care, education, and any other facet of our daily lives pursuant to its authority under Art. I, ß 8, cl. 3, by simply finding that those activities substantially affect interstate commerce; for those activities surely do affect interstate commerce more than the protest activities at issue here. Hoffman, supra at 40, alluding to Lopez, page 1632.

A similar view was taken by another U.S. District Court in United States v. Wilson, 880 F. Supp. 621, 628 (E.D. Wis. 1995), Rev.d, No. 95-1871, 1995 WL 765450 (7th Cir. Dec. 29, 1995):


[PART TWO]

 

 

 

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Got feedback? Send it, along with name or url of the article, and a little of the text on either side of where your comment belongs, so I know what you are responding to, and I'll post your response. I might even place it right smack dab in the article! (If you don't want your email posted, SAY SO!)