Saving FACE: clinic access under a new Commerce Clause.

• Author: Nemko, Amy H.
• Position: Freedom of Access to Clinic Entrances Act

In May 1994, President Clinton signed into law the Freedom of Access to Clinic Entrances Act (FACE),(1) which proscribes blockades and violence directed at facilities providing reproductive health services. Congress authorized FACE under the Commerce Clause(2) and under Section 5 of the Fourteenth Amendment.(3) Just months after the law went into effect, Michael Skott, an anti-abortion protester arrested and convicted under FACE for blockading the Wisconsin Women's Health Care Center,(4) challenged Congress's authority to enact the law.(5) He contended that the statute unconstitutionally exceeded Congress's Commerce Clause power on the grounds that reproductive health services do not constitute interstate commerce.(6) Until recently, such a challenge would have had little hope of success. For over fifty years, the Supreme Court extended great deference to Congress by declining to "set aside [any act based on the Commerce Clause] as without rational basis."(7) In April 1995, however, the Court decided United States v. Lopez,(8) which recharacterized and narrowed the Commerce Clause's scope by holding that Congress overstepped its bounds in enacting the GunFree School Zones Act.(9) Skott's request that the Court use its new Commerce Clause analysis to invalidate FACE was ultimately denied. Even if review had been granted, however, it seems likely that Lopez would pose no threat to the new clinic access law.(10)

In the twenty-three years since Roe v. Wade(11) was decided, abortion opponents have won increasing restrictions on reproductive rights,(12) but have failed to convince the Court to overturn Roe outright.(13) In response, opponents have launched a campaign of violence against reproductive health clinics and providers that has included blockades, bombings, death threats, arsons, chemical attacks, stalkings, assaults, and murders.(14) The attacks explicitly seek to eliminate abortion: As one Operation Rescue field director explained, "We may not get laws changed . . . [b]ut if there is no one willing to conduct abortions, there are no abortions."(15)

Thirteen days after a pro-life activist murdered Dr. David Gunn, Senator Edward Kennedy introduced FACE.(16) Before FACE, existing federal, state, and local laws failed both to protect patients and providers and to keep clinics open.(17) The Act's purpose is to prevent blockades, violence, and threats against medical facilities and personnel who provide abortion services, and to provide criminal penalties and civil remedies when such acts do occur.(18) To that end, it prohibits force or the threat of force or physical obstruction to intentionally injure, intimidate, or interfere with anyone obtaining or providing reproductive health-related services.(19) The Senate determined that authorizing FACE under the Commerce Clause was "clear[ly] constitutional."(20)

In United States v. Wilson,(21) the defendants persuaded the district court that protecting reproductive health services under the Commerce Clause exceeded Congress's authority.(22) The Seventh Circuit reversed,(23) holding that obstruction of reproductive health facilities substantially affected the national reproductive health services market.(24) Skott's appeal asserted that reproductive health services do not have a sufficient nexus to interstate commerce to be subject to congressional regulation under the higher level of scrutiny established by Lopez.(25)

Perhaps key to the Court's decision to deny the FACE challenge was the fact that the reproductive health services market is connected to interstate commerce in ways that the Gun-Free School Zones Act in Lopez was not. First, provision and attainment of reproductive health services are inherently interstate commercial activities. Substantial numbers of women travel across state lines to obtain reproductive health services.(26) Clinic obstructions contribute substantially to the unique scarcity of reproductive health services: Fewer than seventeen percent of counties contain facilities and physicians that provide abortion services.(27) Clinic blockades are nationally organized, and often involve hundreds of protesters moving across state lines to specifically targeted cities such as Wichita and Pensacola.(28) In addition, clinics purchase supplies in interstate channels(29) and employ physicians from out of state. The number of physicians performing abortions decreased in nearly every state between 1982 and 1992,(30) and over five hundred hospitals and clinics stopped providing abortions entirely since the early 1980s,(31) largely because of clinic violence.(32) Consequently, eighty-three percent of U.S. counties lack a single abortion provider,(33) causing many physicians who do perform abortions to "ride circuit" to provide reproductive health services in several states.(34) Ironically, anti-abortion activists' success in reducing the number of clinics that provide abortion has driven women and physicians to travel across state lines, strengthening the interstate nature of the reproductive health services market and the resulting Commerce Clause justification for FACE.(35)

A second justification for congressional regulation of clinic violence under the Commerce Clause stems...