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Third Circuit Upholds Constitutionality of Freedom of Access to Clinic Entrances Act


HLD, v. 28, n. 11 (November 2000)

Third Circuit Upholds Constitutionality of Freedom of Access to Clinic Entrances Act

The New Jersey attorney general brought a criminal action against numerous anti-abortion protestors ("defendants") in federal district court in New Jersey. The court granted summary judgment in favor of the attorney general, finding that defendants had violated the Freedom of Access to Clinic Entrances Act ("FACE") by conducting three blockades in front of abortion clinics. The court determined that defendants were jointly and severally liable for each violation and assessed statutory damages of $5,000 per violation. The attorney general appealed the imposition of damages jointly and severally, arguing that each defendant should be individually liable for $5,000. Defendants appealed, arguing (1) that the attorney general did not have the authority to elect statutory damages, (2) that FACE was an unconstitutional exercise of Congress' commerce clause power, and (3) that FACE violated defendants' First Amendment rights.

The Third Circuit affirmed the lower court's decision in all respects. First, the appeals court found that the lower court had properly determined that statutory damages applied per violation rather than per defendant, thus making all defendants jointly and severally liable for the FACE penalties. The appeals court relied on the statute's authorization of "compensatory statutory damages of $5,000 in lieu of actual damages . . . 'per violation'" and noted that, elsewhere in the statute, Congress had assessed penalties of up to $25,000 "'against each respondent.'" Because Congress had not, in � 248(c)(1)(B), used similar "'per respondent'" language, the appeals court concluded that Congress had "carefully considered the issue and decided that compensatory statutory damages will be imposed per violation . . . ." The appeals court rejected the attorney general's argument that joint and several liability would encourage protestors to form large groups so that they could lessen their individual liability. Instead, the appeals court noted that FACE provided a "wide variety of remedies" and that, therefore, "clinic blockaders will not know the penalties that they face for their misconduct and be able to plan accordingly."

Second, the appeals court rejected defendants' assertion that the attorney general lacked authority to elect statutory damages in lieu of actual damages, explaining that both the language and legislative history of FACE supported that Congress had "intended that statutory damages be awarded in a civil action initiated by an attorney general."

Third, the appeals court ruled that FACE was a proper use of Congress' power under the commerce clause, which authorizes Congress to "'regulate Commerce . . . among the several states.'" The appeals court found well-supported Congress' determination that reproductive health services are an interstate market. For example, the appeals court noted that clinic violence had led to a shortage of physicians willing to perform abortions, so physicians "often travel across state lines to perform abortion services." Furthermore, the appeals court agreed with testimony that the Senate had considered: that "the shift of demand for abortion services from those areas where clinic access is obstructed to those areas where it is not represents the sort of interstate commerce effect that is beyond the effective control of any one state" and, therefore, is a proper subject for regulation under the commerce clause. Based on these conclusions, the appeals court held that "FACE falls within the scope of congressional authority under the Commerce Clause as a legitimate regulation of activity having a substantial effect on interstate commerce."

Finally, the appeals court found that FACE did not regulate First Amendment protected speech or expression because FACE was not viewpoint-based and because FACE governed conduct, not speech.

United States v. Gregg, Nos. 99-5079, 99-5124, 99-5205, 2000 WL 1268150 (3d Cir. Sept. 7, 2000) (28 pages).

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