United States v. Bird ( 1997 )


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  • -                                   REVISED
                    IN THE UNITED STATES COURT OF APPEALS
    
                               FOR THE FIFTH CIRCUIT
    
    
                                ___________________
    
                                      No. 95-20792
    
    
    
    
    UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,
    
         versus
    
    FRANK LAFAYETTE BIRD,
                                                      Defendant-Appellant.
    
    
            ________________________________________________
    
          Appeal from the United States District Court for the
                       Southern District of Texas
            ________________________________________________
                           September 24, 1997
    
    Before GARWOOD, DAVIS and DeMOSS, Circuit Judges.
    
    GARWOOD, Circuit Judge:
    
         Appellant, an abortion protester, appeals his conviction for
    violating the Freedom of Access to Clinic Entrances Act.                       He
    
    challenges the authority of the Congress to enact a statute under
    
    the Commerce    Clause     that     proscribes   intrastate,       noncommercial
    
    activity and he raises First Amendment challenges to the scope of
    
    the Act and to the terms of his supervised release.                   Because we
    
    find that there was a sufficient basis for the Congress to have
    
    determined    that   the    activity       proscribed   by   the    Act,   though
    
    intrastate, could have a substantial affect on the congressionally-
    
    recognized    national     market    for    abortion-related       services,   and
    because we find that the Act, as applied, is neither unduly vague
    
    nor overbroad, we affirm the judgment of the district court.                         We
    
    also find that the district court did not abuse its discretion when
    
    it set the terms of appellant’s supervised release.
    
                            Facts and Proceedings Below
    
           The facts are few and undisputed.                On December 13, 1994,
    
    appellant Frank Bird (Bird), while protesting outside the America’s
    
    Women Clinic in Houston, Texas, threw a bottle at a car driven by
    
    Dr.   Theodore      Herring   (Herring),      an    abortion      provider,     as   he
    
    attempted to enter the clinic premises.              As Bird threw the bottle,
    
    he yelled, “Herring, I’m going to get you.             I’m going to kill you.”
    
    Although   Dr.      Herring   was   not   physically        injured,     the   bottle
    
    shattered the windshield of his car.                  Employees of the clinic
    
    subsequently called the police, who arrived at the scene and
    
    arrested Bird.
    
           On March 29, 1995, Bird was charged in a one-count indictment
    
    with violating 18 U.S.C. § 248(a)(1), the provision of the Freedom
    
    of    Access   to    Clinic   Entrances       Act   (FACE    or    the   Act)    that
    
    criminalizes certain threats and intimidation directed at providers
    
    of abortion services.
    
           The case was tried on June 12, 1995.                 The jury returned a
    
    guilty verdict the same day.          On September 14, 1995, the district
    
    court sentenced Bird to imprisonment for one year followed by one
    
    year of supervised release with the special condition that he stay
    
    at least one thousand feet from any abortion clinic, specifically
    
    the America’s Women Clinic in Houston.                The district court also
    
    
                                              2
    ordered   Bird   to   pay     $820.67   in   restitution     and   ordered    an
    
    assessment of $50.
    
         Bird   filed     a   timely    notice   of   appeal.      Although   Bird
    
    challenges the constitutionality of the Act, he does not otherwise
    
    contest his guilt under the statutory scheme.              He also objects to
    
    the wording of the district court’s judgment and the terms of his
    
    supervised release.       We affirm.
    
                                       Discussion
    
         Some   four      years     ago,    this      Court,    emphasizing      the
    
    Constitution’s establishment of a national government of limited
    
    and enumerated powers——in which the powers of the federal government
    
    were designed to be “‘few and           defined’”——held that Congress, by
    
    enacting a statute making it a federal crime to possess a firearm
    
    in a school zone, had exceeded its authority under the Commerce
    
    Clause.   United States v. Lopez, 
    2 F.3d 1342
    , 1345 (5th Cir. 1993)
    
    (quoting The Federalist No. 45, at 292 (C. Rossiter ed. 1961),
    
    aff’d, 
    115 S. Ct. 1624
     (1995).        This case calls on us to visit again
    
    the issue of Congress’s authority to regulate intrastate activity
    
    pursuant to its Commerce Clause authority, this time aided by more
    
    recent clarifying Supreme Court authority.            As with any challenge
    
    to the constitutional validity of an act duly passed by Congress,
    
    we approach our task knowing that it is both “the gravest and most
    
    delicate duty that this Court is called on to perform,” Blodgett v.
    
    Holden, 
    48 S. Ct. 105
    , 107 (1927) (Opinion of Holmes, J.), and that
    
    it “forms one of the most powerful barriers which has ever been
    
    devised against the tyranny of political assemblies,” Alexis de
    
    
                                            3
    Tocqueville, Democracy in America 76 (1956, Richard D. Heffner
    
    ed.).
    
         In 1994, reacting to a perceived nationwide problem of violent
    
    protests and blockades directed at both providers and recipients of
    
    abortion services, Congress enacted the Freedom of Access to Clinic
    
    Entrances Act, an act making it a federal crime to engage in
    
    certain prohibited activities interfering with the provision or
    
    obtainment of “reproductive health services.”    Specifically, the
    
    Act provides:
    
         “(a)  Prohibited activities.--Whoever--
              (1) 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 the penalties provided in subsection
         (b) and the civil remedies provided in subsection (c),
         except that a parent or legal guardian of a minor shall
         not be subject to any penalties or civil remedies under
         this section for such activities insofar as they are
         directed exclusively at that minor.”       18 U.S.C. §
         248(a)(1) (West Supp. 1997).1
    
    1
         The Act defines several of its terms. “Facility” is defined
    to include “a hospital, clinic, physician’s office, or other
    facility that provides reproductive health services, and includes
    the building or structure in which the facility is located.” 18
    U.S.C. § 248(e)(1). “Interfere with” means “to restrict a person’s
    freedom of movement.” Id. § 248(e)(2). “Intimidate” means “to
    place a person in reasonable apprehension of bodily harm to him- or
    herself or to another.” Id. § 248(e)(3). “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. § 248(e)(4). “Reproductive health services” means
    “reproductive health services provided in a hospital, clinic,
    physician’s office, or other facility, and includes medical,
    surgical, counseling or referral services relating to the human
    
                                    4
          The Act itself states that it was passed “[p]ursuant to the
    
    affirmative power of Congress to enact . . . legislation under
    
    section 8 of article I of the Constitution, as well as under
    
    section   5   of   the   fourteenth   amendment     to   the    Constitution.”
    
    Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-
    
    259, § 2, 108 Stat. 694, 694.         Although the Act itself does not
    
    contain congressional findings, the “Joint Explanatory Statement of
    
    the   Committee    of    Conferees”   to   Senate   Bill       636,   which   was
    
    ultimately adopted as the Act, sets forth a number of relevant
    
    findings.2
    
    
    reproductive system, including services relating to pregnancy or
    the termination of a pregnancy.” Id. § 248(e)(5).
         Criminal penalties under the Act depend upon whether the
    offense involved violence and upon whether the offender has
    previously violated the Act. Id. § 248(b).
          2
                  “2. FINDINGS AND PURPOSE
    
               The Senate Bill, but not the House Amendment,
          contains a Congressional Statement of Findings and
          Purpose.
               The House recedes with an amendment. The amendment
          deletes the Findings but incorporates a portion of them
          in the Purpose section. The Conferees note that Congress
          has found:
               (1) An interstate campaign of violent, threatening,
          obstructive and destructive conduct aimed at providers of
          reproductive health services across the nation has
          injured providers of such services and their patients,
          and the extent and interstate nature of this conduct
          place it beyond the ability of any single state or local
          jurisdiction to control;
               (2) Such conduct, which has included blockades and
          invasions of medical facilities, arson and other
          destruction of property, assaults, death threats,
          attempted murder and murder, infringes upon the exercise
          of rights secured by federal and state law, both
          statutory and constitutional;
               (3) Such conduct also burdens interstate commerce
          by forcing patients to travel from states where their
          access to reproductive health services is obstructed to
    
                                          5
                                     I.
    
         Bird   makes   a   number   of     arguments   challenging   the
    
    constitutionality of the Act.         First, he argues that section
    
    248(a)(1) was beyond the authority granted to Congress under either
    
    
    
    
         other states, and by interfering with the interstate
         commercial activities of health care providers, including
         the purchase and lease of facilities and equipment, sale
         of goods and services, employment of personnel and
         generation of income, and purchase of medicine, medical
         supplies, surgical instruments and other supplies from
         other states;
              (4) Prior to the Supreme Court’s decision in Bray
         v. Alexandria Women’s Health Clinic, 
    113 S. Ct. 753
         (1993), the conduct described in paragraphs (1) through
         (3) above was frequently enjoined by federal courts in
         actions brought under 42 U.S.C. 1985(3), but in that case
         the Court denied a remedy under such sections to persons
         injured by the obstruction of access to abortion-related
         services; and
              (5) Violent,     threatening,     obstructive    and
         destructive conduct aimed at providers of reproductive
         health services can be prohibited, and the right of
         injured parties to seek redress in the courts can be
         established, without abridging the exercise of any rights
         guaranteed under the First Amendment to the Constitution
         or under any other law.” H. Conf. Rep. No. 103-488, at
         7-8 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724-25
         (emphasis added).
         S. 636, as passed by the Senate, contained additional, more
    detailed findings that were ultimately not included in the
    Conference Committee report, some of which are as follows:
         “(8) the entities that provide pregnancy or abortion-
         related services engage in commerce by purchasing and
         leasing facilities and equipment, selling goods and
         services, employing people, and generating income;
         (9) such entities purchase medicine, medical supplies,
         surgical instruments, and other supplies produced in
         other States;
         (10) violence, threats of violence, obstruction, and
         property damage directed at abortion providers and
         medical facilities have had the effect of restricting the
         interstate movement of goods and people.” S. 636, 103d
         Cong. §§ 8-10 (1993) (as engrossed).
    
                                     6
    the Commerce Clause3 or Section Five of the Fourteenth Amendment.4
    
    Second, he argues that the Act is “invidiously discriminatory”
    
    because it protects certain familial relationships and fails to
    
    protect   others.    Third,   he    contends   that   the   Act   is
    
    constitutionally overbroad.   Finally, he challenges the Act on
    
    vagueness grounds.
    
         Five other circuits have addressed the constitutionality of
    
    the Act, each finding it to be a legitimate exercise of Congress’s
    
    authority under the Commerce Clause.   Terry v. Reno, 
    101 F.3d 1412
    
    (D.C. Cir. 1996), cert. denied, 
    117 S. Ct. 2431
     (1997); United
    
    States v. Dinwiddie, 
    76 F.3d 913
     (8th Cir.), cert. denied, 
    117 S. Ct. 613
     (1996); United States v. Wilson, 
    73 F.3d 675
     (7th Cir.
    
    
         3
                “The Congress shall have Power . . . To regulate
         Commerce with foreign Nations, and among the several
         States, and with the
         Indian
         Tribes.” U.S. Const., art. I, § 8, cl. 3.
         4
    
                    “Section 1.     All Persons born or
              naturalized in the United States, and subject
              to the jurisdiction thereof, are citizens of
              the United States and of the State wherein
              they reside. No State shall make or enforce
              any law which shall abridge the privileges or
              immunities of citizens of the United States;
              nor shall any State deprive any person of
              life, liberty, or property, without due
              process of law; nor deny to any person within
              its jurisdiction the equal protection of the
              laws.
    
              . . . .
    
                   Section 5. The Congress shall have power
              to enforce, by appropriate legislation, the
              provisions of this article.”     U.S. Const.
              amend. XIV, §§ 1, 5.
    
                                    7
    1995), cert. denied, 
    117 S. Ct. 47
     (1996); Cheffer v. Reno, 
    55 F.3d 1517
     (11th Cir. 1995); American Life League, Inc. v. Reno, 
    47 F.3d 642
        (4th        Cir.),    cert.      denied,      
    116 S. Ct. 55
       (1995).       The
    
    constitutionality of the Act is a question of first impression in
    
    this Circuit.5         Although we agree with their ultimate holdings, we
    
    nevertheless         set    forth      our   reasoning,         which    differs    in    some
    
    respects from that of our sister circuits.
    
    A.    Congress’s Commerce Clause Authority
    
           Relying on United States v. Lopez, 
    115 S. Ct. 1624
     (1995), Bird
    
    argues that section 248(a)(1) criminalizes private, noneconomic
    
    conduct that is neither commercial in nature nor “‘an essential
    
    part of a larger regulation of economic activity.’”                           Accordingly,
    
    because the Act lacks a jurisdictional element that would ensure
    
    that       each    instance       of   proscribed     activity      had      an   effect    on
    
    interstate commerce, Bird contends that the Act “‘neither regulates
    
    a    commercial        activity        nor   contains       a    requirement       that    the
    
    [prohibited activity] be connected to interstate activity.’”                              Bird
    
    further argues that the congressional findings set forth in the
    
    Act’s legislative history are not relevant to our inquiry because
    
    Congress          cannot    use    findings        that    a    noncommercial       activity
    
    “affected interstate commerce” to support a statute that regulates
    
    intrastate conduct.           Finally, Bird attacks the “regulatory means”
    
    
           5
                 Cook v. Reno, 
    74 F.3d 97
     (5th Cir. 1996), involved
           an appeal from a dismissal of a request for a preliminary
           injunction. Cook was remanded to the district court for
           reconsideration of the plaintiffs’ standing. This Court
           did not reach the merits of the constitutional challenge
           to the Act.
    
                                                   8
    chosen by the Act as not “‘reasonably adapted to the end permitted
    
    by the Constitution.’” In this regard, Bird contends that the
    
    statutory    definitions    of    “facility”      and    “reproductive   health
    
    services” sweep too broadly and exceed the reach of Congress’s
    
    Commerce Clause authority.
    
          The United States defends the Act as a proper exercise of
    
    Congress’s authority under the Commerce Clause.                   First, also
    
    relying on Lopez, 115 S.Ct. at 1629-30, the United States argues
    
    that the Act is “a proper exercise of Congress’ power to ‘protect
    
    . . . persons or things in interstate commerce.’”                 Second, the
    
    government contends that the Act may be “sustained as an exercise
    
    of Congress’ power to regulate ‘activities that substantially
    
    affect   interstate   activity.’”           The   government   emphasizes   the
    
    congressional findings that the proscribed activity “threatens in
    
    the aggregate to eliminate abortion services from the national
    
    commerce.”    The government also maintains that no jurisdictional
    
    element is required provided a criminal statute addresses a “class
    
    of   activity”   that,     in    the   aggregate,       substantially    affects
    
    interstate commerce.        Finally, the government argues that the
    
    regulatory scheme adopted by the Act is reasonably adapted to a
    
    permissible end.
    
          The Supreme Court’s opinion in United States v. Lopez, 
    115 S. Ct. 1624
    , guides our inquiry.         In Lopez, the Court set forth the
    
    three areas of permissible congressional regulation pursuant to the
    
    Commerce Clause. “First, Congress may regulate the use of channels
    
    of interstate commerce.”          Id. at 1629 (citing United States v.
    
    
                                            9
    Darby, 
    61 S. Ct. 451
    , 457 (1941); Heart of Atlanta Motel, Inc. v.
    
    United States, 
    85 S. Ct. 348
    , 357 (1964)).               “Second, Congress is
    
    empowered    to   regulate   and   protect    the       instrumentalities   of
    
    interstate commerce, or persons or things in interstate commerce,
    
    even though the threat may come only from intrastate activities.”
    
    Id. (citing Shreveport Rate Cases, 
    34 S. Ct. 833
     (1914); Southern
    
    Ry. Co. v. United States, 
    32 S. Ct. 2
     (1911); Perez v. United
    
    States, 
    91 S. Ct. 1357
    , 1359 (1971)).         “Finally, Congress’ commerce
    
    authority includes the power to regulate those activities having a
    
    substantial relation to interstate commerce, i.e., those activities
    
    that substantially affect interstate commerce.”              Id. (citing NLRB
    
    v. Jones & Laughlin Steel Corp., 
    57 S. Ct. 615
    , 624 (1937); Maryland
    
    v. Wirtz, 
    88 S. Ct. 2017
    , 2024 n.27 (1968)).              Lopez did not set
    
    forth the precise standard by which the federal judiciary shall
    
    examine Congress’s legislative determination that a particular
    
    statute has a nexus with interstate commerce under the third
    
    category; rather, the Court emphasized that whether Congress had a
    
    rational     basis   for   determining   that       a    regulated   activity
    
    “sufficiently affected interstate commerce” was “‘ultimately a
    
    judicial rather than a legislative question.’”              Id. at 1629 & n.2
    
    (quoting Heart of Atlanta Motel, 85 S.Ct. at 366 (Black, J.,
    
    concurring); Hodel v. Virginia Surface Mining & Reclamation Ass’n,
    
    Inc., 
    101 S. Ct. 2352
    , 2391 (1981) (Rehnquist, J., concurring)
    
    (“[S]imply because Congress may conclude that a particular activity
    
    substantially affects interstate commerce does not necessarily make
    
    it so.”)).
    
    
                                        10
         1.    Channels of Interstate Commerce
    
         The first Lopez category of permissible interstate regulation,
    
    involving regulation of the channels of interstate commerce, is
    
    plainly not applicable to the Act.     This category, as described in
    
    Perez, 91 S.Ct. at 1359, reaches the “misuse” of the channels of
    
    interstate commerce. Oft-cited examples include the transportation
    
    or shipment of:    stolen goods, 18 U.S.C. § 2314, et seq.; kidnaped
    
    persons, 18 U.S.C. § 1201, et seq.; prostitutes, 18 U.S.C. § 2421;
    
    and drugs, 21 U.S.C. § 841(a); see also United States v. Robertson,
    
    
    115 S. Ct. 1732
    , 1733 (1995) (affirming federal RICO conviction
    
    because gold mine was “engaged in commerce”); United States v.
    
    Darby, 
    61 S. Ct. 451
     (1941) (upholding the authority of Congress to
    
    prohibit the interstate shipment of goods produced by workers whose
    
    wages violated the Fair Labor Standards Act); The Lottery Case, 
    23 S. Ct. 321
       (1903)   (affirming    conviction   for   interstate
    
    transportation of foreign lottery tickets under the Federal Lottery
    
    Act of 1895).     Section 248(a) “is not a regulation of the use of
    
    the channels of interstate commerce, nor is it an attempt to
    
    prohibit the interstate transportation of a commodity through the
    
    channels of commerce.”    Lopez, 115 S.Ct. at 1630.6
    
         6
                There is no congressional finding that federal
         regulation of interstate violence or the like against
         abortion clinics, providers, or patients can be
         effectively accomplished only if intrastate conduct of
         the same kind is also federally regulated; nor, so far as
         we can asertain, was there any evidence to that effect
         before Congress; and, we are not aware of anything which
         would support such a conclusion. Cf. Lopez, 2 F.3d at
         1351, 1367 n.51 (noting that federal regulation of
         intrastate drug trafficking had been sustained on the
         basis of congressional findings that the fungible and
    
                                      11
         2.    Persons or Things in Interstate Commerce
    
         The government argues that the Act falls within the second
    
    category of permissible interstate regulation, specifically the
    
    protection of persons or things in interstate commerce.                  The
    
    government argues that Congress determined, through legislative
    
    inquiry, that (1) doctors travel interstate to provide abortion
    
    services,   (2)   patients   travel    interstate   to    receive   abortion
    
    services, and (3) clinics use medical supplies and equipment that
    
    have traveled interstate.
    
         We do not find the Act to be a valid exercise of Congress’s
    
    Commerce    Clause   authority   under     the   second   Lopez     category.
    
    Although unquestionably many——perhaps most——abortion clinics employ
    
    out-of-state doctors, serve out-of-state patients, and utilize
    
    medical supplies and equipment that have traveled interstate, there
    
    is no allegation or showing that, in the present case, America’s
    
    Women Clinic ever employed physicians, treated patients, or used
    
    supplies that so qualified. Congressional regulation or protection
    
    of persons or things that move in interstate commerce must ensure
    
    that, in fact, a particular “threat”——whether posed by an interstate
    
    or intrastate activity——actually threatens persons or things with
    
    a plain and clear nexus to interstate commerce. Of course, neither
    
    medical doctors nor their patients are by their nature involved in
    
    interstate commerce.     Nor, for that matter, are medical supplies
    
    inherently interstate commodities.         In the absence of such a plain
    
    
         untraceable characteristics of narcotis rendered such
         regulation necessary to the effective regulation of
         interstate trafficking).
    
                                          12
    and clear nexus, a statute must employ some mechanism to ensure the
    
    federal   regulation   in   fact   regulates   persons   or   things   in
    
    interstate commerce.     Traditionally, this has been achieved by a
    
    jurisdictional element or a statutory presumption. In this regard,
    
    the Court in Lopez, 115 S.Ct. at 1629, cited federal statutes
    
    criminalizing the destruction of aircraft employed in interstate
    
    commerce, 18 U.S.C. § 32(a)(1) (criminalizing the destruction of
    
    any aircraft “used, operated, or employed in interstate, overseas,
    
    or foreign air commerce”), and theft from interstate commerce, 18
    
    U.S.C. § 659 (criminalizing the theft of “any goods or chattels
    
    moving as or which are a part of or which constitute an interstate
    
    or foreign shipment”).
    
         Congress did not set forth a jurisdictional element in section
    
    248(a)(1).   Even if there had been such a jurisdictional element,
    
    or even if we were able to read the language of the Act to imply
    
    such a requirement, United States v. Bass, 
    92 S. Ct. 515
    , 522-23
    
    (1971) (requiring the government to demonstrate “the requisite
    
    nexus with interstate commerce” for each element of a federal
    
    firearm statute ambiguously containing the phrase “in commerce or
    
    affecting commerce”), there was absolutely no allegation nor any
    
    evidence produced at trial that America’s Women Clinic in Houston
    
    employed out-of-state personnel, utilized out-of-state medical
    
    supplies, or treated out-of-state patients.      To the contrary, Dr.
    
    Herring, the only witness, testified that he resided in Dallas,
    
    Texas; he was never questioned concerning the supplies or equipment
    
    used by the clinic, nor was he asked whether the clinic treated
    
    
                                       13
    patients from outside of the Houston area, let alone from outside
    
    of   Texas   generally.      No   documentary     evidence   addressing     the
    
    interstate nature of the clinic’s business was produced by the
    
    government at trial.      Without evidence that America’s Women Clinic
    
    used out-of-state staff or supplies, or that it provided abortion
    
    services to out-of-state patients, it is difficult to see how
    
    Bird’s actions had any affect on interstate commerce in medical
    
    supplies, medical personnel, or the provision of medical services
    
    to out-of-state patients.
    
          Congress’s   finding    that   “many   of    the   patients    who   seek
    
    services from [abortion providers] engage in interstate commerce by
    
    traveling from one state to obtain [the abortion services] in
    
    another,” S. Rep. No. 103-117, at 31; H. Conf. Rep. No. 103-488, at
    
    7, and that physicians and other related medical personnel often
    
    travel across state lines to provide abortion services, is not
    
    sufficient to support section 248(a)(1) under this second Lopez
    
    category.    That “many,” “substantial numbers,” or “a majority” of
    
    patients and doctors travel interstate to obtain or to provide
    
    abortion services does not establish that this particular clinic
    
    was ever so served or attended.       Nor can the government’s citation
    
    of cases involving specific, individualized findings relating to
    
    other clinics in unrelated litigation involving a different statute
    
    serve as a proxy for the individualized inquiry heretofore required
    
    for each violation under this second Lopez category.                See, e.g.,
    
    Bray v. Alexandria Women’s Health Clinic, 
    113 S. Ct. 753
    , 782, 792
    
    (1993) (Stevens, J., dissenting) (stating that between twenty and
    
    
                                         14
    thirty percent of patients at a targeted Virginia abortion clinic
    
    were from outside Virginia and a majority at one of the Maryland
    
    clinics were from outside Maryland); New York State N.O.W. v.
    
    Terry, 
    886 F.2d 1339
    , 1360 (2d Cir. 1989) (“women referred by out-
    
    of-state clinics often travel to New York City seeking its superior
    
    medical services”), cert. denied, 
    110 S. Ct. 2206
     (1990); Pro-Choice
    
    Network v. Project Rescue, 
    799 F. Supp. 1417
    , 1430 (W.D.N.Y. 1992)
    
    (“Plaintiffs’ health care facilities render services to patients
    
    from other states, especially Pennsylvania[,] Ohio, and Canada”);
    
    Lucero v. Operation Rescue, 
    772 F. Supp. 1193
    , 1195 (N.D. Ala.
    
    1991) (finding 1.5% of patients resided outside of Alabama).7
    
         3. Intrastate Activity that “Substantially Affects” Interstate
    Activity
    
         That the Act fails to qualify under the first two Lopez
    
    categories      of   permissible   Commerce   Clause   regulation   is   not
    
    surprising in light of what appears to be Congress’s purpose to
    
    reach the prohibited activity at as many abortion clinics as
    
    possible.       Indeed, the government concedes as much, emphasizing
    
    that Congress has the authority to regulate intrastate activity
    
    that, in the aggregate, has a substantial effect on interstate
    
    commerce.
    
         As     a    federal   criminal   statute    regulating   intrastate,
    
         7
               There is no congressional finding, nor (so far as
         we can ascertain) any evidence before Congress, that in
         order to effectively protect from violence clinics,
         providers, or patients which were in interstate commerce
         it was necessary to also extend such protection to
         clinics, providers, and patients having no connection to
         interstate commerce, and we are not aware of anything
         which would support such a conclusion.
    
                                          15
    noncommercial conduct, section 248(a)(1) must be justified, if at
    
    all, as “an essential part of a larger regulation of economic
    
    activity, in which the regulatory scheme could be undercut unless
    
    the intrastate activity were regulated.” Lopez, 115 S.Ct. at 1631.
    
    From the outset, we note, and reject, both the government’s and
    
    Bird’s view of permissible congressional regulation in this Lopez
    
    category.
    
         Bird    insists     that   Lopez    requires     a   statute    regulating
    
    intrastate activity pursuant to the Commerce Clause to contain a
    
    jurisdictional element.         Furthermore, Bird maintains that the
    
    intrastate activity that may be regulated must, at a minimum, be
    
    commercial.     We do not read Lopez so broadly.              First, though a
    
    jurisdictional element may help to ensure that the exercise of
    
    Congress’s    Commerce     Clause   authority       extends   only   to   those
    
    activities that substantially affect interstate commerce, it is
    
    only one method, and not always a necessary one, by which Congress
    
    may achieve that end.      See, e.g., Terry, 101 F.3d at 1418 (“Lopez’s
    
    fundamental proposition is that Congress must ensure that its
    
    Commerce Clause power to regulate noncommercial activities extends
    
    to only those activities that substantially affect interstate
    
    commerce.     Congress may do so either through its own legislative
    
    findings or by including a jurisdictional element in the statute;
    
    it need not do both.”); Wilson, 73 F.3d at 685 (“In discussing the
    
    lack of a jurisdictional element in Lopez, the Court simply did not
    
    state or imply that all criminal statutes must have such an
    
    element, or that all statutes with such an element would be
    
    
                                            16
    constitutional, or that any statute without such an element is per
    
    se unconstitutional.”).8                  Second, the Court in Lopez did not
    
    overrule——indeed, it expressly reaffirmed——the proposition set forth
    
    in    Wickard    v.     Filburn      concerning   congressional     regulation   of
    
    intrastate, noncommercial activity:
    
           “‘[E]ven if appellee’s activity be local and though it
           may not be regarded as commerce, it may still, whatever
           its nature, be reached by Congress if it exerts a
           substantial economic effect on interstate commerce, and
           this irrespective of whether such effect is what might at
           some earlier time have been defined as “direct” or
           “indirect.”’” Lopez, 115 S.Ct. at 1628 (quoting Wickard,
           
    63 S. Ct. 82
    , 87 (1942)).
    
    The    Supreme        Court    reiterated      that   intrastate,   noncommercial
    
    activities can, in certain circumstances, substantially affect
    
    interstate commerce when considered in the aggregate.                       After
    
    Wickard——and its reaffirmance in Lopez——there can be no question
    
    that       Congress    is     able   to    regulate   noncommercial,   intrastate
    
    activity       that    substantially        affects   interstate    commerce,9   an
    
           8
                   In any event, jurisdictional elements do not
           necessarily   preclude  “as-applied”   Commerce   Clause
           challenges. See, e.g., United States v. Collins, 
    40 F.3d 95
    , 99-101 (5th Cir. 1994) (reversing Hobbs Act
           conviction because of the “absence of evidence showing
           some direct or substantial indirect effect on interstate
           commerce”).
           9
                 See also Russell v. United States, 
    105 S. Ct. 2455
           (1985) (upholding the federal arson statute, 18 U.S.C. §
           844(i), which criminalizes the destruction or attempted
           destruction by arson of “property used in . . . any
           activity affecting interstate or foreign commerce”);
           United States v. Corona, 
    108 F.3d 565
     (5th Cir. 1997)
           (affirming a conviction under 18 U.S.C. § 844(i) for the
           destruction of commercial property, but questioning
           whether an unlimited “effects test” would permit the
           “speculative” aggregation of negligible effects on
           interstate commerce to support a conviction for the
           burning of a private residence); Stirone v. United
    
                                                 17
    admittedly broad power not without danger to the federalism that is
    
    the most fundamental postulate of our constitutional order.10             The
    
    question remains in any given case, however, whether Congress’s
    
    exercise of power in this manner is properly limited.             It is the
    
    government’s view of this limiting principle that we find flawed.
    
         Under the government’s view, Congress need only identify a
    
    broad “class of activities” and determine that, viewed in the
    
    aggregate, the class “substantially affects” interstate commerce.
    
    Of course, the only “limits” provided by such a construction as
    
    thus stated are the depths of judicial imagination. The government
    
    made a similar, unrestricted argument to justify the Gun Free
    
    School    Zones   Act   in   Lopez.        This   Court   characterized   the
    
    government’s version of the “class of activities” argument as
    
    
    
         States, 
    80 S. Ct. 270
     (1960) (upholding the Hobbs Act, 18
         U.S.C. § 1951, which criminalizes certain noncommercial
         activities that “affect[] commerce or the movement of any
         article or commodity in commerce”); United States v.
         Coleman, 
    78 F.3d 154
    , 158-60 (5th Cir.) (upholding the
         federal car-jacking statute, 18 U.S.C. § 2119, which
         criminalizes car jacking “a motor vehicle that has been
         transported, shipped, or received in interstate or
         foreign commerce”), cert. denied, 
    117 S. Ct. 230
     (1996).
         Cf. Katzenbach v. McClung, 
    85 S. Ct. 377
     (1964), and Heart
         of Atlanta Motel, Inc. v. United States, 
    85 S. Ct. 348
         (1964)   (upholding   anti-discrimination    in   service
         provisions of Title II of the Civil Rights Act of 1964 as
         applied to restaurants and hotels engaged in interstate
         commerce).
         10
                  The Tenth Amendment contains no substantive
         restriction on the legitimate exercise of Congress’s
         Commerce Clause authority; that is, the boundaries of the
         Commerce Clause power are not delineated by the Tenth
         Amendment. But, the Tenth Amendment plainly does confirm
         that the commerce power is not limitless, that hence such
         boundaries do exist, and that they must not be
         transgressed.
    
                                          18
    lacking a limiting feature such as the existence of a national
    
    market:
    
         “The government seeks to rely on the rule that ‘[w]here
         the class of activities is regulated and that class is
         within the reach of the federal power, the courts have no
         power “to excise as trivial, individual instances” of the
         class.’ This theory has generally been applied to the
         regulation of a class of activities the individual
         instances of which have an interactive effect, usually
         because of market or competitive forces, on each other
         and on interstate commerce. A given local transaction in
         credit, or use of wheat, because of national market
         forces, has an effect on the cost of credit or price of
         wheat nationwide.    Some such limiting principle must
         apply to the ‘class of activities’ rule, else the reach
         of the Commerce Clause would be unlimited, for virtually
         all legislation is ‘class based’ in some sense of the
         term.” Lopez, 2 F.3d at 1367 (quoting Perez, 91 S.Ct. at
         1361; Wirtz, 88 S.Ct. at 2022).
    
    We believe that a requirement for such a limiting principle in the
    
    absence of a jurisdictional element, although not expressly adopted
    
    by the Supreme Court, is the only legitimate reading of the
    
    Wickard-Perez line of cases.          Unless there is something that
    
    relevantly   ties   the   separate   incidents    and   their   effects   on
    
    interstate commerce together, aside from the desire to justify
    
    congressional regulation, the government’s “class of activities”
    
    interpretation would transform Justice Breyer’s Lopez dissent into
    
    the constitutional rule.       See Lopez, 115 S.Ct. at 1659-62 (Breyer,
    
    J., dissenting) (arguing that guns in schools undermine the quality
    
    of education which, in turn, leads to “lagging worker productivity”
    
    and, eventually, the erosion of “our [Nation’s] economic ‘standing
    
    in the international marketplace’”); id. at 1632 (criticizing the
    
    government’s   “costs     of    crime”    and   “national   productivity”
    
    
    
    
                                         19
    arguments).11   Wickard itself offered, as a limiting principle, the
    
    national wheat    market.   Perez   cited   the   national   market   for
    
    commercial credit.    The “fungible and untraceable” characteristic
    
    of narcotics——which Congress found made federal regulation of
    
    intrastate trafficking an operationally necessary prerequisite to
    
    effective regulation of the interstate activity——was itself a tying
    
    feature (albeit one which was more relevant to bring intrastate
    
    activity within the reach of Lopez’s first category).        See Lopez,
    
    2 F.3d at 1351, 1367 n.51 (citing United States v. Lopez, 
    459 F.2d 949
    , 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United
    
    States, 
    93 S. Ct. 130
     (1972)).
    
         In other words, although activities proscribed by an act of
    
    Congress may constitute, generically, a “class of activities,” and,
    
    when viewed in the aggregate, these activities may “substantially
    
    affect” interstate commerce in some broad and general sense, these
    
    two features, alone, are not sufficient to justify congressional
    
    legislation pursuant to the Commerce Clause.       What was missing in
    
    Lopez, and what is needed to justify congressional action under the
    
    “substantial effects” category, are “judicially enforceable outer
    
    
    
    
         11
               These considerations similarly inform us that, in
         determining whether the regulated intrastate activity
         substantially affects interstate commerce, “substantial”
         must be understood to have reference not only to a
         quantitative measure but also to qualitative ones;
         effects which are too indirect, remote, or attenuated——or
         are seen only by piling “inference upon inference”——are
         not substantial.     Our use of “substantially” hence
         embraces both quantitative and qualitative measures.
    
                                     20
    limits.”   Lopez, 115 S.Ct. at 1633.12
    
         Accordingly, our inquiry must determine not simply whether
    
    section 248(a)(1) proscribes intrastate activity that has (or might
    
    have) a substantial affect on interstate commerce, but rather
    
    whether there is a national commercial market in abortion-related
    
    services such that the regulated conduct——considered in light of
    
    the size and scope of the benchmark market——substantially affects
    
    interstate commerce.   In other words, Congress must have divined
    
    the existence of a national commercial market in abortion-related
    
    services in which the closing down or obstruction of any clinic (or
    
    clinics) in one state (even if only serving local patients with
    
    local doctors) substantially affects the ability of clinics in
    
    other states to provide abortion-related services.   To this end we
    
    must examine the congressional findings, the committee reports, and
    
    
         12
                   While certain language in United States v.
         Robinson, 
    119 F.3d 1205
     (5th Cir. 1997), read in
         isolation, might be understood to embrace a somewhat far-
         reaching “class of activities” analysis, the opinion must
         be read in the context of what was before the panel
         there, namely a prosecution under the Hobbs Act, a
         statute specifically providing for an interstate commerce
         nexus, for robberies of businesses directly engaged in
         interstate    commerce  (in   addition   to  dealing   in
         merchandise from out of state, “[t]he stores provided
         check-cashing services . . . the stores cashed out-of-
         state checks, payroll checks, and government benefit
         checks”) with a direct impact on the interstate commerce
         of the locations robbed (“one store was forced to close
         permanently for lack of capital, and the others were
         unable to cash checks for a finite period of time”). Id.
         at 1208.    Here, by contrast, the statute requires no
         nexus whatever to interstate commerce, and the evidence
         does not establish that the victim clinic or doctor was
         (then or ever) engaged in interstate commerce (i.e.,
         serving interstate patients or utilizing out-of-state
         providers or the like).
    
                                     21
    the relevant testimony.
    
         We are persuaded that section 248(a)(1) is a legitimate
    
    regulation of intrastate activity having a substantial affect on
    
    interstate commerce.   First, Congress made findings, supported by
    
    the testimony presented to the House and Senate committees charged
    
    with considering the Act, that there was an interstate commercial
    
    market for abortion services.    Second, Congress found that the
    
    activity prohibited by the Act constituted a nationwide problem,
    
    regularly causing the interruption of abortion services at the
    
    clinics where the prohibited activity occurred.13   Third, Congress
    
         13
                We do not suggest that simply because a type of
         antisocial conduct (which any state could validly
         proscribe) can fairly be described as a “national”
         problem in the sense that many (or even all) states
         experience more instances of it than are desirable or
         desired, that this of itself suffices to bring such
         conduct within the scope of Congress’s Commerce Clause
         power.   Plainly it does not.    Ever since a time well
         before the Constitutional Convention,
         there have been every year in each of the several states
         more murders than desirable or desired, but it is
         nevertheless plain that the Commerce Clause does not
         authorize Congress to enact legislation punishing any and
         all murders throughout the nation.      As Chief Justice
         Marshall wrote for a unanimous Court in Cohens v.
         Virginia, 
    19 U.S. 264
    , 
    5 L. Ed. 257
     (1821), “Congress has
         . . . no general right to punish murder committed within
         any of the states,” id. at 426, and “[i]t is clear, that
         Congress cannot punish felonies generally.” Id. at 428.
         Here, it is also true that the proscribed offenses all
         share a relatively narrow common goal or motivation and
         are all directed at a relatively narrow common set of
         victims, and further that many of the proscribed offenses
         involve common perpetrators traveling in interstate
         commerce and victims engaged in interstate commerce. As
         the proscribed conduct is present nationally, these
         factors may have some tendency to support the statute,
         but are not collectively of themselves alone sufficient
         to bring it within the Commerce Clause where the statute
         has no jurisdictional nexus and neither the allegations
         nor the evidence show that the defendant traveled in
    
                                    22
    found that       the    interruption       of    abortion     services     due    to   the
    
    activities prohibited by the Act caused (or was likely to cause)
    
    women to travel from the states where abortion services were
    
    interrupted to clinics, often out of state, that were able to
    
    provide unobstructed abortion services.                      Finally, it is a fair
    
    inference,       supported      by     congressional         testimony,         that   the
    
    proportionate increase in demand at unobstructed clinics brought
    
    about by those women forced to seek abortion services in the
    
    national     commercial        market      because      of    intrastate         activity
    
    obstructing local abortion clinics both increased (or was likely to
    
    increase) the cost of abortion services and reduced (or was likely
    
    to   reduce)      the     availability          of   abortion        services     at   the
    
    unobstructed clinics.              Accordingly, in light of the national
    
    commercial       market   in   abortion-related          services       recognized      by
    
    Congress, we hold that Congress was justified in concluding that
    
    the regulation of intrastate activity——the activity prohibited by
    
    the Act——was necessary to ensure the availability (both in terms of
    
    access and price) of abortion services in the national commercial
    
    market.     Consistent with Lopez’s admonition, we note that the
    
    presence    of    a    national      commercial      market     in    abortion-related
    
    services,    together       with     the   effects      on    such     market     of   the
    
    proscribed conduct, serves as a limiting principle circumscribing
    
    
         interstate commerce (or acted in concert with those who
         did) or that either the clinic or provider was engaged in
         interstate commerce (and there being no showing or
         congressional finding that regulation of intrastate
         perpetrators or protection of intrastate victims was
         necessary to effectively either regulate interstate
         perpetrators or protect interstate victims).
    
                                               23
    Congress’s regulation of intrastate activity under the Act.
    
           In reaching our determination that the Act satisfies the
    
    “substantially affects” category, we note that the finding set
    
    forth in the Conference Committee Report, stating that the activity
    
    proscribed by the Act “burdens interstate commerce by forcing
    
    patients to travel from states where their access to reproductive
    
    health services is obstructed to other states” is a conclusion
    
    derived from months of legislative hearings, research, and debate.
    
    As such, it is entitled to deference and should be interpreted,
    
    insofar as         it   is   consistent   with    the   information   before   the
    
    Congress at the time of enactment, to support a constitutional
    
    reading of the Act.14          Cf. Rust v. Sullivan, 
    111 S. Ct. 1759
    , 1771
    
    (1991) (“‘The elementary rule is that every reasonable construction
    
    must        be    resorted    to,   in    order   to    save   a   statute     from
    
    unconstitutionality.’”) (quoting Hooper v. California, 
    15 S. Ct. 207
    , 211 (1895)).
    
                 a.    National Market for Abortion-Related Services
    
           Congress found that doctors travel across state lines to
    
           14
                   Use of legislative history in this manner is
           entirely consistent with our responsibility to gauge the
           regulated activity’s effect on interstate commerce. See
           Lopez, 115 S.Ct. at 1631 (“[A]s part of our independent
           evaluation of constitutionality under the Commerce Clause
           we of course consider the legislative findings, and
           indeed even the congressional committee findings,
           regarding the effect on interstate commerce . . . .”);
           Presseault v. ICC, 
    110 S. Ct. 914
    , 924-25 (1990)
           (discussing the House and Senate reports accompanying the
           National Trails System Act); Bass,
           92 S.Ct. at 520-21 (examining House and Senate floor
           statements to discern link to interstate commerce);
           Coleman, 78 F.3d at 158-59 (quoting House Report and
           House and Senate floor statements).
    
                                               24
    provide abortion services and that patients also travel interstate
    
    to obtain such services.        S. Rep. No. 103-117, at 31 (1993)
    
    (“[M]any of the patients who seek services from these facilities
    
    engage in interstate commerce by traveling from one state to obtain
    
    services in another.”); H. Rep. No. 103-306, at 8 (1993) (“Many of
    
    the counties that have providers are urban centers.          A rural
    
    provider is often the only provider in a large geographical area.
    
    . . .    The facts are that only 17 percent of U.S. counties have an
    
    abortion provider and that clinic owners face a shortage of doctors
    
    willing to perform abortions.”), reprinted in 1994 U.S.C.C.A.N.
    
    699, 705.      Indeed, it is the very shortage of abortion-related
    
    services that appears to have created the national market for these
    
    services.    See S. Rep. at 17 & n.29 (“The availability of abortion
    
    services is already very limited in many parts of the United
    
    States. Nationwide, 83% of counties have no abortion provider. In
    
    South Dakota, the only physician who performs abortions commutes
    
    from Minnesota.”).
    
            The House and Senate reports accurately reflect the testimony
    
    presented to the respective committees.         See Abortion Clinic
    
    Violence: Hearings Before the Subcomm. on Crime and Criminal
    
    Justice of the Comm. on the Judiciary, 103d Cong., at 3 (1993)
    
    [hereinafter House Hearings] (letter of Atty. Gen Reno) (stating
    
    that “patients and staff frequently travel interstate” to receive
    
    or to administer abortion-related services); The Freedom of Access
    
    to Clinic Entrances Act of 1993: Hearing Before the Comm. on Labor
    
    and Human Resources, 103d Cong., at 11, 16-17 (1993) [hereinafter
    
    
                                      25
    Senate Hearings] (statement of Atty. Gen. Reno) (stating that
    
    abortion clinics are engaged in interstate commerce and that
    
    clinics serve significant numbers of out-of-state patients); id. at
    
    59, 64-65 (statement of Willa Craig, Executive Director, Blue
    
    Mountain Clinic, Missoula, MT) (“A large number of our abortion and
    
    our prenatal patients travel an average of 120 miles to their
    
    appointments at our clinic due to a lack of services in their own
    
    areas.   These areas include Idaho, eastern Washington, Wyoming and
    
    Canada.”); see also 139 Cong. Rec. S15, 658 (daily ed. Nov. 16,
    
    1993) (statement of Sen. Kennedy) (noting the nationwide shortage
    
    of abortion-related services).
    
         b. Activity Proscribed by the Act Threatens the Availability
    of Abortion-Related Services
    
          Congress   found   that   the   activity     proscribed      by   the   Act
    
    constituted a national problem, regularly causing the interruption
    
    of   abortion-related    services     at   the   clinics   where    prohibited
    
    activity occurred.   The Senate Report states that clinic blockades
    
    and violent protests had “a significant adverse impact not only on
    
    abortion patients and providers, but also on the delivery of a wide
    
    range of health care services.        This conduct has forced clinics to
    
    close, caused serious and harmful delays in the provision of
    
    medical services, and increased health risks to patients.                It has
    
    also taken a severe toll on providers, intimidated some into
    
    ceasing to offer abortion services, and contributed to an already
    
    acute shortage of qualified abortion providers.”            S. Rep. No. 103-
    
    117, at 14.      The Senate Report observed the link between the
    
    activity prohibited by the Act and the concomitant shortage in
    
                                          26
    abortion-related         services.        Id.     at   17     (“Some     providers      have
    
    succumbed    to    the    intimidation       and       threats.          At   least     three
    
    physicians in Dallas stopped performing abortions in 1992 as a
    
    result of pressure by an anti-abortion group. In early 1993, after
    
    receiving death threats, two doctors stopped working at an abortion
    
    clinic in Melbourne, FL.             And since Dr. Gunn was shot in March
    
    1993, at least eight more doctors have stopped offering abortion
    
    services.”); id. at 80 (statement of Randall Terry, Director,
    
    Operation Rescue) (stating that he personally facilitated the
    
    withdrawal of half the abortion providers in a community).                                The
    
    House    Report    also    observed       that    the    reduced         availability      of
    
    abortion-related services was “at least partially attributable to
    
    the violence and intimidation described in this report.                              Doctors
    
    understandably are leaving the field, and new graduate[s] have
    
    little    desire    to    enter     the    field       even    as   part      of    a   wider
    
    obstetrics/gynecology practice.”                  H. Rep. No. 103-306, at 8.
    
    Congress noted the severity and frequency of abortion clinic
    
    violence. Id. (noting that, from 1984 through 1992, there had been
    
    “28 bombings, 62 arsons, 48 attempted bombings and arsons, 266 bomb
    
    threats, and 394 incidents of vandalism”); S. Rep. No. 103-117, at
    
    3 & n.1 (noting that, from 1977 through 1993, there had been “36
    
    bombings,    81    arsons,     131        death    threats,         84    assaults,      two
    
    kidnappings, 327 clinic invasions, and one murder”).                               Testimony
    
    before Congress made clear that the goal of the activity proscribed
    
    by the Act was to reduce or eliminate the national market for
    
    abortion-related         services    and    that       such    activity       had    already
    
    
                                                27
    achieved   partial   success.      See,    e.g.,   House   Hearings,   at   2
    
    (statement of Rep. Schuman) (observing that “[t]he stated goal of
    
    the tactics is to drive doctors and clinics out of the business of
    
    providing abortions and the tactics appear to be working” and
    
    noting the diminishing numbers of physicians willing to provide
    
    abortion-related services); Senate Hearings, at 167-68 (statement
    
    of Freedom of Choice Action League) (detailing resignation of a
    
    Wichita, Kansas, physician from an abortion clinic after she
    
    received repeated threats).        Floor debates also focused on the
    
    interruption of abortion-related services brought about by the
    
    activity proscribed by the Act.       See, e.g., 139 Cong. Rec. S15,672
    
    (daily ed. Nov. 16, 1993) (statement of Sen. Mikulski) (noting that
    
    abortion clinic violence has “destroyed clinic facilities——leaving
    
    women without access to health care facilities”); 139 Cong. Rec.
    
    H10,089 (daily ed. Nov. 18, 1993) (statement of Rep. Pelosi) (“over
    
    50 percent of clinics across the country offering reproductive
    
    health services have undergone extreme violence”); id. at H10,090
    
    (statement of Rep. Engel) (“The work of many clinics——which often
    
    includes low-cost prenatal care, birth control, infertility, and
    
    adoption as well as abortion services——has been disrupted regularly
    
    by blockades, chemical attacks, and invasions.”); id. at H10,091
    
    (statement of Rep. Stokes) (“[Activity proscribed by the Act has]
    
    damaged clinic facilities or driven away clinic staff, forcing
    
    these facilities to reduce their patient load and the wide range of
    
    services they provide.       Other clinics have had to cease operations
    
    altogether   after   their    facilities    were   destroyed   by   fire    or
    
    
                                         28
    bombings, leaving thousands of women without adequate health care
    
    services.”);    139   Cong.   Rec.     H1501   (daily    ed.    Mar.      17,   1994)
    
    (statement of Rep. Kennelly) (noting the national scope of the
    
    abortion clinic violence).
    
         c. The National Shortage of Abortion-Related Services Forces
    Travel to Out-of-State Providers
    
         Congress    found   that    the    interruption     of    abortion-related
    
    services due to the activities proscribed by the Act caused (or was
    
    likely to cause) women to travel from those states where abortion-
    
    related services were not reasonably available to clinics in those
    
    states where abortion-related services were reasonably available.
    
    The Senate Report states:
    
         “[B]lockades that make access to a health care facility
         difficult or hazardous can have traumatic effects on
         patients by delaying their access to urgent medical care
         and by exacerbating their medical conditions. . . . For
         patients seeking abortion services, the adverse effects
         of a clinic blockade can be particularly serious. Dr.
         Pablo Rodriguez described the effects on patient health:
                   ‘Our patients are the ones who suffer. Women
              who do make it in have a heightened level of
              anxiety and a greater risk of complications. The
              delay caused by the invasions has forced some
              patients to seek care elsewhere due to the fact
              that their gestational age has gone beyond the
              first trimester.’”
         S. Rep. No. 103-117, at 15 (quoting testimony of Dr.
         Pablo Rodriguez).
    
    The House Report reaches a similar conclusion.                 See H. Rep. No.
    
    103-306, at 10. (“In addition, patients often cross state lines to
    
    obtain services . . . .”) (citing testimony of Silvia Doe).
    
         Testimony before Congress made clear that activity proscribed
    
    by the Act delayed (and threatened to deny permanently) access to
    
    abortion-related      services   to    women   who,     due    to   the    existing
    
    
                                           29
    shortage of such services, had traveled (or would be required to
    
    travel) interstate to obtain them.     Silvia Doe testified about her
    
    decision to seek a late-term abortion after learning of a fetal
    
    malformation. She further testified that only three clinics in the
    
    country offer such a service.   She was forced, by the shortage of
    
    providers, to travel from Virginia to Kansas.    In Wichita, Kansas,
    
    she was delayed from obtaining her abortion due to a clinic
    
    blockade at the Wichita clinic.    Clinic Blockades: Hearing Before
    
    the Subcomm. on Crime and Criminal Justice of the Comm. on the
    
    Judiciary, 102d Cong., at 9-17 (statement of Silvia Doe).
    
         The congressional testimony and the activity described in the
    
    committee reports provide sufficient evidence for the Congress to
    
    have concluded that entirely intrastate activity——here, the activity
    
    proscribed by the Act——had, at the very least, the potential to
    
    cause women who had been prevented from obtaining abortion-related
    
    services in their home states to travel to unobstructed providers
    
    in other states.
    
         d.   Intrastate Activity Proscribed by the Act Affects the
    Availability of Abortion-Related Services in the National Market
    
         We are persuaded that it is a fair inference that the activity
    
    proscribed by the Act——which has (or threatens to have) the effect
    
    of precluding access to abortion-related services in the area
    
    served by the targeted clinic——can have a substantial affect on the
    
    availability of abortion-related services in the national market.
    
    Such a conclusion is rational and supported by testimony presented
    
    to the committees charged with reviewing the bills that eventually
    
    became the Act.
    
                                      30
           The House Subcommittee on Crime and Criminal Justice heard
    
    testimony that, because of the continued threats of violence and
    
    disruptive    activities,   abortion      clinics    have   been    forced    to
    
    implement heightened security measures to ensure access.                    House
    
    Hearings, at 25 (statement of Susan Hill, President, Nat’l Women’s
    
    Health Org.) (noting that “[o]bviously, that drives up the costs of
    
    providing the service”).     The Senate Committee on Labor and Human
    
    Resources considered a report printed in the American Journal of
    
    Obstetrics and Gynecology which noted that abortion clinic violence
    
    increases the costs of abortion services at those clinics that
    
    remain open.    The report stated that abortion patients have been
    
    forced, due to clinic violence, to seek other providers or postpone
    
    care.    Senate Hearings, at 54.       Additional testimony before the
    
    Senate Committee set forth the Commerce Clause rationale for the
    
    Act’s    regulation   of    intrastate      activities      to     ensure    the
    
    availability of abortion-related services in the national market:
    
           “The pattern of interstate effects produced by the
           pressured movement of women from State to State under a
           variegated patchwork of local enforcement against
           blockades, violence and physical intimidation at abortion
           clinics is undoubtedly sufficient to warrant Congress’s
           invocation of its commerce power. Similarly, 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 economic effect
           that is beyond the effective control of any one State and
           is accordingly a proper subject for congressional
           regulation under the Commerce Clause.”        Id. at 97
           (statement of Professor Tribe) (citing Summit Health,
           Ltd. v. Pinhas, 
    111 S. Ct. 1847
    , 1846-47 (1991)).
    
    This    described   shift   in   demand    from     obstructed     clinics    to
    
    unobstructed clinics——given the national scarcity of abortion-
    
    related services——supports the legitimacy of Congress’s enactment
    
                                        31
    of section 248(a).         The patent congressional concern that the
    
    activity proscribed by the Act, although intrastate, could have a
    
    deleterious impact on the availability of abortion-related services
    
    in the national market, makes clear that “Congress was addressing
    
    an   interstate       problem    rather    than   a   multistate,   intrastate
    
    problem.”        Wilson, 73 F.3d at 683.
    
          Accordingly, in light of the evident congressional purpose to
    
    ensure     the    availability    of   abortion-related     services   in   the
    
    national commercial market,15 we hold that the enactment of section
    
          15
                 We recognize, of course, that “[t]he motive and
          purpose of a regulation of interstate commerce are
          matters for the legislative judgment upon the exercise of
          which the Constitution places no restriction and over
          which the courts are given no control.” Darby, 61 S.Ct.
          at 457. This is not to say, however, that the motive or
          purpose of any congressional regulation passed under the
          Commerce Clause is “irrelevant.”        United States v.
          Soderna, 
    82 F.3d 1370
    , 1374 (7th Cir. 1996). Certainly
          when Congress is regulating interstate commercial
          activity, its reason for doing so is immaterial. But
          where, as here, Congress is regulating purely intrastate,
          noncommercial activity because of its substantial affect
          on interstate commerce, the purpose must in fact be to
          regulate interstate commerce.         “Let the end be
          legitimate, let it be within the scope of the
          constitution, and all means which are appropriate, which
          are plainly adapted to that end, which are not
          prohibited, but consist with the letter and spirit of the
          constitution, are constitutional.”          M’Culluch v.
          Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis
          added). See also id. at 423 (“should Congress, under the
          pretext of executing its powers, pass laws for the
          accomplishment   of   objects   not   entrusted   to  the
          government,” Supreme Court would be bound to hold law
          invalid).     Surely, it would be a perversion of
          congressional authority to uphold as constitutional a
          federal statute that purported to be an exercise of
          Commerce Clause power but was for the sole purpose of
          reaching intrastate activity without regard to whether or
          how that activity would actually affect interstate
          commerce. The regulation of intrastate commerce per se,
          and for its own sake, and not as a means of regulating or
    
                                              32
    248(a), as applied to the facts of the present case, was a
    
    constitutional exercise of Congress’s power under the Commerce
    
    Clause.       Because we conclude that Congress possessed the requisite
    
    authority under the Commerce Clause, we pretermit the substantially
    
    more        questionable   assertion   of   congressional   authority   to
    
    criminalize purely private conduct (not directed at state property
    
    or facilities) under Section Five of the Fourteenth Amendment. See
    
    The Civil Rights Cases, 
    3 S. Ct. 18
     (1883).        See also City of Boerne
    
    v. Flores, 
    117 S. Ct. 2157
    , 2166 (1997).16
    
    B.   Invidious Discrimination against Familial Relationships
    
           Bird next argues that the Act is unconstitutional because it
    
    protects certain familial relationships, but fails to protect
    
    others.       Section 248(a) states that “a parent or legal guardian of
    
    a minor shall not be subject to any penalties or civil remedies
    
    under this section for such activities insofar as they are directed
    
    
           affecting interstate commerce, is not an “end . . .
           within the scope of the constitution.” Here, however, we
           cannot say that Congress has so perverted its Commerce
           Clause power. The regulation in question is at least
           colorably directed at ensuring the availability of
           abortion-related services in the national commercial
           market.
           16
                 Nor do we have occasion to determine the propriety
           of the Act’s criminalization of certain activities by
           private citizens that may interfere with a person’s
           exercise of religious freedom at a place of worship or a
           person’s    use    of    a    noncommercial    counseling
           facility——neither of which would seem to fall within the
           type of economic regulation permitted by Lopez as there
           was no congressional finding or testimony concerning the
           commercial nature of such activity, any national shortage
           of counselors or counseling services, or the existence of
           any national tying feature supporting the exercise of
           congressional Commerce Clause authority under the
           “substantial affects” category.
    
                                           33
    exclusively at that minor.”       18 U.S.C. § 248(a).      Thus, a father
    
    who physically blocks his daughter from having an abortion has not
    
    violated the Act, but a brother who restrains his sister has
    
    violated the Act.      Bird asserts that there is no reasonable basis
    
    for   exempting     certain   familial    relationships   while   exempting
    
    others.
    
           As Bird is not related to Dr. Herring in any capacity, and the
    
    record does not establish that his actions in any manner reflect an
    
    attempt to affect the obtainment of abortion-related services by a
    
    member of his family, he lacks standing to advance this claim——his
    
    concern is simply not implicated by the facts here presented.          This
    
    Court “‘has no jurisdiction to pronounce any statute, either of a
    
    state or of the United States, void, because irreconcilable with
    
    the constitution, except as it is called upon to adjudge the legal
    
    rights of litigants in actual controversies.’ . . . [O]ne to whom
    
    application of a statute is constitutional will not be heard to
    
    attack the statute on the ground that impliedly it might also be
    
    taken as applying to other persons or other situations in which its
    
    application might be unconstitutional.”         United States v. Raines,
    
    
    80 S. Ct. 519
    , 522 (1960) (quoting Liverpool, N.Y. & Phila. S.S. Co.
    
    v. Commissioners of Emigration, 
    5 S. Ct. 352
    , 355 (1885)); see also
    
    United States v. Salerno, 
    107 S. Ct. 2095
    , 2100 & n.3 (1987).
    
    Accordingly, we express no opinion as to the merits of Bird’s
    
    challenge in this respect.
    
    C.    Overbreadth
    
           Bird next argues that the Act is unconstitutional because it
    
    
                                         34
    is overbroad under the First Amendment.                   Bird concedes that the
    
    First Amendment does not protect activities that are violent or
    
    physically     injurious,   including          threats    of    force       and   certain
    
    physical obstructions, such as blockades of pedestrian traffic.
    
    Instead, Bird takes issue with the Act’s prohibition on physical
    
    obstruction,     intentional      interference          with    others,       attempted
    
    interference with others, and intentional injury “in the emotional
    
    or psychological sense.” Bird contends that a “large demonstration
    
    or   picketing     activity       could        well     constitute      a     ‘physical
    
    obstruction’” under the Act.
    
          We need not tarry long with Bird’s overbreadth argument, for
    
    the Act proscribes conduct, not speech. By its terms, it prohibits
    
    only specified uses of “force,” “threat[s] of force,” and “physical
    
    obstruction”; none of which are protected by the First Amendment.
    
    Wisconsin v. Mitchell, 
    113 S. Ct. 2194
    , 2199 (1993) (force); Madsen
    
    v.   Women’s    Health   Ctr.,     Inc.,       
    114 S. Ct. 2516
    ,   2529       (1994)
    
    (threats); Cameron v. Johnson, 
    88 S. Ct. 1335
    , 1338-39 (1968)
    
    (physical obstruction).       In any event, the conduct for which Bird
    
    was convicted, and at least virtually all that proscribed by the
    
    terms   of   section     248(a)(1),       is    not     protected      by    the    First
    
    Amendment; accordingly, that there could arguably be some rare
    
    hypothetical case at the outer margins of section 248(a)(1) where
    
    First   Amendment      concerns    might        arise    does    not    avail       Bird.
    
    Broadrick v. Oklahoma, 
    93 S. Ct. 2908
    , 2917-18 (1973); see also
    
    Morse v. Republican Party of Virginia, 
    116 S. Ct. 1186
    , 1211 & n.38
    
    (1996); United States v. Wallington, 
    889 F.2d 573
    , 576 (5th Cir.
    
    
                                              35
    1989).     This is particularly so as the Act was narrowly drafted
    
    with the intent of not abridging First Amendment protections.17
    
          Accordingly we agree with every other circuit court that has
    
    addressed the issue and hold that the Act is not unconstitutionally
    
    overbroad.    See Terry, 101 F.3d at 1421; Soderna, 82 F.3d at 1376;
    
    Dinwiddie, 76 F.3d at 924; Cheffer, 55 F.3d at 1520-21; American
    
    Life League, 47 F.3d at 653.
    
    D.   Vagueness
    
          A statute is unconstitutionally vague if it does not give a
    
    “person of ordinary intelligence a reasonable opportunity to know
    
    what is prohibited, so that he may act accordingly.”      Grayned v.
    
    City of Rockford, 
    92 S. Ct. 2294
    , 2298-99 (1972). Bird asserts that
    
    the Act fails to give fair notice of what is proscribed and fails
    
    to provide explicit standards for the enforcement of particular
    
    provisions.      Specifically, he claims that the terms “intimidate,”
    
    “interfere with,” “attempts to . . . intimidate or interfere with”
    
    and “injures” are too vague to be constitutional.        An abortion
    
    protester, he argues, will not be sure whether his actions comply
    
    with the Act or subject him to penalties.
    
          The Supreme Court has upheld against a vagueness challenge a
    
    statute closely resembling the Act.      Cameron, 
    88 S. Ct. 1335
    .   The
    
    
          17
                The Act provides:
          “(d) Rules of Construction.--Nothing in this section
          shall be construed--
               (1) to prohibit any expressive conduct (including
               peaceful picketing or other peaceful demonstration)
               protected from legal prohibition by the First
               Amendment to the Constitution.”       18 U.S.C. §
               248(d).
    
                                       36
    statute at issue in Cameron provided that:
    
           “‘It shall be unlawful for any person, singly or in
           concert with others, to engage in picketing or mass
           demonstrations in such a manner as to obstruct or
           unreasonably interfere with free ingress or egress to and
           from any public premises . . . .’” Id. at 1336 n.1.
    
    The     Court   found        that   the   statute     “clearly   and   precisely
    
    delineate[d] its reach in words of common understanding.”                 Id. at
    
    1338.    In light of the Act’s similarity to the statute at issue in
    
    Cameron, we hold that the Act’s terms are not unconstitutionally
    
    vague.      See Terry, 101 F.3d at 1421; Dinwiddie, 76 F.3d at 924.             In
    
    any event, there is no vagueness or lack of clarity in the
    
    application of the terms of section 248(a)(1) to what Bird was
    
    convicted of doing, and in at least the vast majority of cases
    
    whether or not the terms of section 248(a)(1) apply will be
    
    adequately clear; the theoretical possibility that some rare case
    
    at    the    margins    of    section     248(a)(1)   might   arise    where   the
    
    applicable of its terms could be unclear does not avail Bird.
    
    Parker v. Levy, 
    94 S. Ct. 2547
    , 2562 (1974); Umphlet v. Connick, 
    815 F.2d 1061
    , 1066 (5th Cir. 1987); Ferguson v. Estelle, 
    718 F.2d 730
    ,
    
    735 (5th Cir. 1983).
    
                                              II.
    
           As a condition of supervised release, the district court
    
    ordered Bird to “[s]tay at least 1,000 feet away from abortion
    
    clinics, specifically the America’s Women Clinic.”                 The district
    
    court was permitted to order, as a condition of supervised release,
    
    “any other condition it consider[ed] to be appropriate” provided
    
    the condition “involve[d] no greater deprivation of liberty than
    
    
                                               37
    [was] reasonably necessary” to deter criminal conduct and to
    
    protect the public.   18 U.S.C. § 3583(d).        The district court cited
    
    Bird’s prior convictions for trespassing at abortion clinics as
    
    support for the special condition.
    
         Bird argues that the special condition violates his First
    
    Amendment rights because it was not narrowly tailored to serve a
    
    significant government interest and because the special condition
    
    was duplicative of the “standard conditions of supervision” set
    
    forth in the judgment.
    
         This   Court   reviews     a   district    court’s   entry   of   special
    
    conditions of supervision for an abuse of discretion.                   United
    
    States v. Mills, 
    959 F.2d 516
    , 519 (5th Cir. 1992); United States
    
    v. Tonry, 
    605 F.2d 144
    , 148 (5th Cir. 1979).              In light of Bird’s
    
    prior activities involving criminal activity at or near both
    
    abortion clinics and at the residence of an abortion provider and
    
    his earlier refusal to accept any restrictions on his protest
    
    activity,   we   cannot   say   that    the    district   court   abused   its
    
    discretion in determining that the 1,000 foot requirement was
    
    reasonably necessary to prevent Bird from repeating the activity
    
    for which he was convicted. Bird’s conviction for violent activity
    
    under the Act constitutes a sufficient governmental interest to
    
    justify a temporary limitation on Bird’s First Amendment rights.
    
    See United States v. Turner, 
    44 F.3d 900
    , 903 (10th Cir.), cert.
    
    denied, 
    115 S. Ct. 2250
     (1995); United States v. Cothran, 
    855 F.2d 749
    , 751 (11th Cir. 1988). Bird’s contention that the provision of
    
    a standard condition that Bird “shall not associate with any
    
    
                                           38
    persons engaged in criminal activity” invalidates the district
    
    court’s more specific special condition is without merit.      The
    
    district court was within its authority conferred by 18 U.S.C. §
    
    3583(d).
    
                                   III.
    
         Bird finally argues that the district court’s judgment is
    
    unconstitutional and violative of due process because it states,
    
    under “Nature of Offense,” that he was found guilty of “Blocking
    
    Entrance to an Abortion Clinic” when, in fact, the indictment sets
    
    forth his specific conduct as intimidating and interfering with Dr.
    
    Herring’s provision of abortion services.
    
         Bird’s claim is without merit.   Bird was indicted for conduct
    
    violative of 18 U.S.C. § 248(a)(1) (and the indictment references
    
    that section alone).   He was found guilty, after a jury trial, of
    
    violating 18 U.S.C. § 248(a)(1). The judgment states that Bird was
    
    found guilty of violating 18 U.S.C. § 248(a)(1). That the judgment
    
    characterizes his offense as “blocking” an entrance to an abortion
    
    clinic is, at most, a reference to the name of the statute that he
    
    violated——the Freedom of Access to Clinic Entrances Act (FACE).
    
    That Dr. Herring was able to make it past Bird’s bottle-throwing
    
    attempt to stop his car from entering the America’s Women Clinic
    
    does not invalidate the judgment. The district court’s judgment is
    
    entirely consistent with both the nature of his offense and with
    
    due process.
    
                                Conclusion
    
         For the foregoing reasons, we AFFIRM the judgment of the
    
    
                                    39
    district court.
    
    
    
    
                           AFFIRMED
    
    
    
    ENDRECORD
    
    
    
    
                      40
    DeMOSS, Circuit Judge, concurring in part and dissenting in part:
    
         I concur in subparts I(B), I(C), and I(D) and in parts II and
    
    III of the majority opinion.            I also concur in section I(A)(1)
    
    (“Channels of Interstate Commerce”) and section I(A)(2) (“Persons
    
    or Things in Interstate Commerce”) of the majority opinion, which
    
    conclude that the Freedom of Access to Clinic Entrances Act, 18
    
    U.S.C. § 248 et seq. (hereinafter “FACE”), was not validly enacted
    
    under either     of   the    first    two    categories     of   Commerce     Clause
    
    analysis set forth by the Supreme Court in United States v. Lopez,
    
    
    514 U.S. 549
     (1995).        However, I cannot concur in the analysis and
    
    holding   in     section       I(A)(3)        (“Interstate        Activity     that
    
    ‘Substantially    Affects’     Interstate       Activity”)       of   the   majority
    
    opinion, which concludes that the enactment of FACE falls within
    
    part three of the Lopez analysis because Congress found a “national
    
    commercial market in abortion-related services,” and that Congress
    
    was justified in determining “that the regulation of intrastate
    
    activity—the activity prohibited by the Act—was necessary to ensure
    
    the availability (both in terms of access and price) of abortion
    
    services in the national commercial market.”                Ante at 22.      Because
    
    I disagree with the fundamental premises of these holdings, I write
    
    now to explain my reasons.
    
    
    
                                            I.
    
         Rather than applying the clear and explicit criteria which the
    
    Supreme Court set forth in Lopez, the majority considers the
    
    constitutionality     of    FACE     under    the   third    Lopez    category   by
    
    constructing an analysis built upon three essential premises:
                 1.        “After Wickard—and its reaffirmance in Lopez—there
    
         can   be     no     question       that   Congress     is     able     to   regulate
    
         noncommercial, intrastate activity that substantially affects
    
         interstate commerce, an admittedly broad power not without
    
         danger       to    the     federalism     that   is    the    most     fundamental
    
         postulate of our constitutional order.” Ante at 17 (footnotes
    
         omitted).
    
                 2.        “[A] requirement for . . . a limiting principle in
    
         the     absence       of    a     jurisdictional      element,       although    not
    
         expressly adopted by the Supreme Court, is the only legitimate
    
         reading of the Wickard-Perez line of cases.”                      Ante at 18-19.
    
                 3.        “[O]ur inquiry must determine not simply whether
    
         § 248(a)(1) proscribes intrastate activity that has (or might
    
         have) a substantial effect on interstate commerce, but rather
    
         whether there is a national commercial market in abortion-
    
         related services such that the regulated conduct—considered in
    
         light        of      the        size   and   scope       of      the        benchmark
    
         market—substantially affects interstate commerce.”                           Ante at
    
         20.
    
    I disagree with each of these premises, which create fundamental
    
    and logical deficiencies in the majority’s analysis.
    
         There is no question that the conduct proscribed by FACE is
    
    “intrastate and noncommercial conduct.” Injuring or threatening to
    
    injure persons who seek to receive or deliver abortion services is,
    
    by its very nature, an intrastate activity; such conduct inherently
    
    involves face-to-face and person-to-person contact which must occur
    
    
                                                42
    in the same place at the same time.       Likewise, such conduct does
    
    not involve the transfer of money or any other consideration
    
    between the perpetrator and the victim, and there is no commercial
    
    motive prompting the perpetrator to engage in such conduct.
    
         I think the first premise of the majority opinion as set forth
    
    above is inaccurate in two respects.     First, I do not read Lopez as
    
    an   affirmance   of   Wickard.        Rather,   I   see   Lopez   as   a
    
    reinterpretation of Wickard which focuses on what the Court now
    
    says is the essential ingredient for Congress to be able to
    
    regulate intrastate noneconomic conduct which substantially affects
    
    interstate commerce.     Particularly, the proscribed intrastate,
    
    noncommercial activity must be “an essential part of a larger
    
    regulation of economic activity, in which the regulatory scheme
    
    would be undercut unless the intrastate activity were regulated.”
    
    Lopez, 514 U.S. at 561.    The majority recognizes this essential
    
    ingredient in the second paragraph of its discussion of “intrastate
    
    activity that substantially affects interstate activity,” see ante
    
    at 15, but then blithely ignores the fact that FACE is not a part
    
    of any larger regulatory scheme, and moves on to discuss the need
    
    for a “limiting principle,” as indicated by the majority’s second
    
    premise above.
    
         The only relevant “limiting principle” is the one dictated by
    
    the Supreme Court’s Lopez decision.      The Lopez Court adopted a new
    
    reading of the Wickard-Perez line of cases by specifying that, for
    
    Congress to be able to regulate intrastate and noncommercial
    
    conduct under the Interstate Commerce Clause, such conduct must be
    
    
                                      43
    “an essential part of a larger regulation of economic activity, in
    
    which the regulatory scheme could be undercut unless the intrastate
    
    activity were regulated.”   Id.   FACE does not meet these criteria.
    
    The legislation is not an essential part of a larger regulatory
    
    scheme which would be undercut if Congress does not proscribe with
    
    criminal sanctions the intrastate and noncommercial conduct which
    
    FACE addresses.
    
         Consequently, the majority errs in engaging in an examination
    
    of “the congressional findings, the committee reports, and the
    
    relevant testimony,” ante at 20, to determine whether Congress
    
    found a national commercial market in abortion-related services,
    
    which would serve as the “limiting factor” that would minimize the
    
    danger to federalism.   There is absolutely nothing in the Supreme
    
    Court’s Lopez decision that speaks to the majority’s concept of a
    
    “national market” as being a limiting factor.       As the majority
    
    opinion indicates, this “national market” limiting concept is a
    
    leftover argument from our Circuit’s panel opinion in Lopez.     See
    
    United States v. Lopez, 
    2 F.3d 1342
    , 1367 (5th Cir. 1993), aff’d on
    
    other grounds, 
    514 U.S. 549
     (1995).    In my view, to the extent that
    
    the “national market” concept appears in our Circuit’s Lopez
    
    opinion, it is dicta.   Regardless, when the Supreme Court decided
    
    Lopez, it provided a new framework for appraising legislation under
    
    the Commerce Clause, and it did not include the “national market”
    
    consideration in its own analysis, which necessarily supersedes the
    
    earlier analysis from this Circuit.     See, e.g., United States v.
    
    Pettigrew, 
    77 F.3d 1500
    , 1511 n.1 (5th Cir. 1996) (“While . . . one
    
    
                                      44
    panel of this Court is generally powerless to overrule the previous
    
    decision of another panel absent rehearing by the full Court
    
    sitting en banc, an exception to this rule arises when there has
    
    been an intervening decision by the United States Supreme Court
    
    overriding the earlier decision.”).
    
         Furthermore, neither the Fifth Circuit’s Lopez opinion, nor
    
    the majority opinion in this case, establish any criteria to define
    
    what is referred to as a “national market.”          The words “national
    
    market” invoke the image of something like the New York Stock
    
    Exchange, the Chicago Board of Trade, or the Commodities and
    
    Futures Exchange. These are national markets which operate through
    
    brokers and dealers to bring buyers and sellers together and
    
    produce an established range of bid and ask prices as reflected by
    
    current transactions in the item being traded.         It seems to me that
    
    at the very least, a “national market” requires a product or
    
    commodity which has a high degree of fungibility.          For example, a
    
    share of stock in U.S. Steel can be sold on a national market by a
    
    seller in California to a buyer in New York in reliance upon the
    
    fact that the share of stock represents the same thing in both
    
    places. Similarly, a bushel of wheat grown in Nebraska will be the
    
    same as a bushel of wheat grown in Kansas once the farmers who grew
    
    each bushel have moved them into the national market.             There is
    
    nothing in the Congressional Record that establishes that one
    
    abortion procedure is just like every other abortion procedure. To
    
    the contrary,   an   abortion   is   a    unique,   personal,   and   highly
    
    individualized procedure.
    
    
                                         45
         In addition to fungibility, a primary function of a “national
    
    market” is to determine a unit price for each commodity based upon
    
    the most recent sales of that commodity, without distinction as to
    
    whether that commodity was grown or manufactured in Texas or was
    
    grown or manufactured in Michigan. The majority says that “Wickard
    
    itself offered, as a limiting principal, the national wheat market”
    
    and “Perez cited the national market for commercial credit.”       See
    
    ante at 19.   But there is a serious distinction between those types
    
    of national markets and a “national market in abortion-related
    
    services.”    An abortion is a medical/surgical procedure performed
    
    in a hospital or clinic by a provider on a pregnant woman.     There
    
    is no product or commodity which results from this procedure. When
    
    a woman arranges to have an abortion performed, the subject of the
    
    arrangement is a personal service that is to be provided.   When the
    
    service is rendered and the fee is paid, the abortion has no
    
    ongoing value or marketability.
    
         I recognize, of course, that the majority has concluded that
    
    Congress found a national market for abortion services.     See ante
    
    at 22-24.    I question the factual accuracy of this conclusion.   The
    
    only findings which the full Congress made relating to FACE are
    
    those identified in the Conference Committee Report.      See ante 5
    
    n.2. Because the Conference Committee made these express findings,
    
    we are bound to view these findings as the only findings which
    
    Congress made.    Therefore, in determining whether Congress found a
    
    national market for abortion services, we can look only to the
    
    Conference Committee Report and the findings set forth therein.
    
    
                                      46
         The words “national market for abortion-related services” do
    
    not appear anywhere in these five Conference Committee findings.
    
    The only one of these five findings which even mentions the term
    
    “interstate commerce” is the third one, which states simply that
    
    anti-abortion violence “burdens interstate commerce by forcing
    
    patients to travel from states where their access to reproductive
    
    health services is obstructed to other states.”            H.R. CONF. REP. NO.
    
    103-488, at 7 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724.            The
    
    mere fact that some individuals choose to or are forced to travel
    
    interstate to receive abortions does not establish that there is a
    
    “national   market”    for   abortions.      Nothing   in    the   Conference
    
    Committee’s   statement      of   findings   speaks   to   whether   abortion
    
    services are fungible, and nothing in this finding speaks to the
    
    question of whether the price or availability of abortion services
    
    in New York City is the same as that in Los Angeles or in Des
    
    Moines, Iowa.
    
         For the foregoing reasons, I do not agree that the presence of
    
    a national market is the relevant inquiry under part three of the
    
    Lopez analysis.       Furthermore, assuming that the presence of a
    
    national market is determinative, I am unable to concur in the
    
    majority’s conclusion that Congress found a “national market for
    
    abortion-related services,” which is the keystone of the majority’s
    
    determination that FACE is a permissible exercise of Congress’s
    
    power under the Commerce Clause as described in part three of
    
    Lopez.
    
    
    
    
                                          47
                                            II.
    
         In my view, FACE cannot survive Lopez analysis because the
    
    statute is distinguishable from the permissible regulations of
    
    conduct that substantially affects interstate commerce in four
    
    important aspects.       First, FACE is a criminal statute that by its
    
    terms has nothing to do with commerce.            See Lopez, 514 U.S. at 560-
    
    61. Second, FACE is not an essential part of any larger regulation
    
    of economic activity, in which that larger regulatory scheme could
    
    be undercut unless the intrastate activity were regulated. See id.
    
    at 561. Third, FACE contains no jurisdictional element which would
    
    ensure through case-by-case inquiry that the conduct prohibited
    
    therein affects interstate commerce.                   See id.    Finally, FACE
    
    exercises general police powers by creating criminal sanctions in
    
    an area where the states have historically been recognized to be
    
    sovereign.       See id. at 564-65.           These four departures from the
    
    Lopez standard are fatal to the constitutionality of FACE.
    
    
    
    A. FACE Is a Criminal Statute That by Its Terms Has Nothing to Do
    with Commerce.
    
         The     statutory   text      of   FACE    does    not   contain   the     word
    
    “commerce,” nor the phrase “intrastate commerce,” nor the phrase
    
    “interstate commerce.”        The conduct prohibited by FACE—the use of
    
    force to interfere with another person’s obtaining or providing
    
    reproductive health services—does not inherently involve conduct
    
    which   is   a   part   of   any   commercial     activity.       In    fact,    the
    
    prohibitions of FACE apply to a nonprofit, charitable facility that
    
    provides abortions for free just as they apply to a clinic that
    
                                             48
    charges a fee for providing abortion services.
    
         Also, the prohibited conduct does not have any commercial
    
    purpose of its own.           The commercial nature of the regulated
    
    activity is an important consideration in the substantially-affects
    
    prong of the Lopez analysis.            See, e.g., Lopez, 514 U.S. at 560
    
    (“Where     economic     activity      substantially      affects      interstate
    
    commerce, legislation regulating that activity will be sustained.”
    
    (emphasis supplied)).        The activity regulated by FACE, the use of
    
    force, threats, or intimidation to injure, intimidate, or interfere
    
    with the persons identified by the statute, is behavior that is not
    
    commercial by nature.
    
         Despite the majority’s protest to the contrary, see ante at 21
    
    n.13, there is no difference between the prohibitions in FACE and
    
    a statute that might federalize murder on the grounds that killing
    
    people substantially affects interstate commerce.                  The majority’s
    
    suggested    distinction,      that     the    FACE     prohibitions    have    “a
    
    relatively narrow common goal or motivation and are all directed at
    
    a relatively narrow common set of victims, and further . . . many
    
    of the proscribed offenses involve common perpetrators traveling in
    
    interstate commerce and victims engaged in interstate commerce,”
    
    ante at 21 n.13, is untenable.          Our panel is in agreement that FACE
    
    does not fall within part two of the Lopez analysis, the prong for
    
    persons or things in interstate commerce.                  Yet the majority’s
    
    purported    distinction      relies    on    the   presumed      involvement   of
    
    “perpetrators    engaged”      and     “victims       engaged”    in   interstate
    
    commerce.       As     the   majority    itself       notes,     “[c]ongressional
    
    
                                            49
    regulation   or   protection    of    persons    or    things      that     move   in
    
    interstate   commerce   must    ensure      that,     in   fact,     a   particular
    
    ‘threat’—whether      posed     by     an      interstate       or        intrastate
    
    activity—actually threatens persons or things with a plain and
    
    clear nexus to interstate commerce.”           Ante at 12.    FACE contains no
    
    such “jurisdictional nexus.”
    
         The approval of legislation like FACE opens the door to
    
    general federalization of felonies. Lopez reaffirms that this sort
    
    of legislation is not envisioned by the Commerce Clause.                           The
    
    criminalization of noncommercial conduct by FACE is one important
    
    distinction between FACE and the category of legislation described
    
    in part three of Lopez.
    
    
    
    B.   FACE Is Not an Essential Part of a Larger Regulation of
    Economic Activity, in Which the Regulatory Scheme Could Be Undercut
    Unless the Intrastate Activities Were Regulated.
    
         There is no national regulatory scheme regarding the provision
    
    of abortion services.         The federal government does not license
    
    abortion   clinics,   does    not    approve    the    training      of    abortion
    
    providers, and does not regulate the delivery of abortion services
    
    to ensure that any minimum health standards are met.                     The federal
    
    government has not created any administrative agency nor designated
    
    any department of the federal government to regulate the abortion
    
    industry in order to stabilize the supply of abortion services or
    
    encourage the demand for such services.
    
         In short, there is no general federal regulatory scheme
    
    relating to the abortion industry. Congress has made no finding to
    
    
                                          50
    the contrary.     FACE cannot, therefore, be an essential part of any
    
    general federal regulatory scheme, because none exists.                 It thus
    
    goes without saying that the prohibited conduct in FACE does not,
    
    as   Lopez    requires,   undercut     the     enforcement   of   any   general
    
    regulatory scheme.
    
          The majority recognizes the importance of this factor when it
    
    quotes the operative language at the very beginning of its section
    
    I(3), discussing the substantially-affects category of Commerce
    
    Clause power.      Ante at 15 (quoting Lopez, 514 U.S. at 561).             But
    
    the majority then proceeds to try to rationalize its way around
    
    this specific language of Lopez by citing three earlier Supreme
    
    Court opinions for the proposition that Congress can regulate
    
    noncommercial local activity which “in the aggregate” substantially
    
    affects interstate commerce: United States v. Darby, 
    312 U.S. 100
    
    (1941); Wickard v. Filburn, 
    317 U.S. 111
     (1942); and Perez v.
    
    United States, 
    402 U.S. 146
     (1971).
    
          These three cases demonstrate the correctness of the Lopez
    
    premise rather than an exception to it.               In each of these cases
    
    there was a comprehensive national regulatory scheme, and the
    
    criminalized conduct was clearly defined as part of that regulatory
    
    scheme.      In Darby, the Supreme Court dealt with the wage and hour
    
    laws of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.               The
    
    defendant was an employer who failed to pay the statutory minimum
    
    wages   but    went   ahead    and   shipped    his   product   in   interstate
    
    commerce.      In Wickard, the Agricultural Adjustment Act of 1938
    
    (“AAA”) was at issue.         Filburn was a farmer whose farm fell under
    
    
                                           51
    the purview of the AAA and who had received an acreage allotment
    
    under the AAA.   The AAA expressly limited the ability of farmers to
    
    raise a wheat crop for their own consumption and the Wickard case
    
    validated that limitation.   Finally, Perez arose in the context of
    
    the Consumer Credit Protection Act, 18 U.S.C. § 891, with the
    
    defendant being a loan shark who engaged in extortionate credit
    
    transactions as therein defined.        These cases deal directly with
    
    conduct that might frustrate the efforts of a federal regulatory
    
    system.
    
         While I agree with the majority that Lopez’s reaffirmation of
    
    the Wickard-Perez cases can be read as meaning that Congress can
    
    “regulate noncommercial, intrastate activity that substantially
    
    affects interstate commerce,” ante at 17, I see nothing in Lopez
    
    that permits the elimination of the further requirement that such
    
    “noncommercial, intrastate activity” must be “an essential part of
    
    a larger regulation of economic activity.”      Lopez, 514 U.S. at 561.
    
    FACE stands alone as a criminal statute, unconnected to any larger
    
    federal regulatory scheme.        The statute purports to regulate
    
    intrastate noncommercial activities and thus fails, for the reasons
    
    noted above, to satisfy this requirement of Lopez.
    
    
    
    C. FACE Contains No Jurisdictional Element Which Would Ensure,
    Through Case-by-Case Inquiry, That The Prohibited Conduct Has a
    Substantial Effect on Interstate Commerce.
    
         It would have been a simple matter for Congress to have
    
    included   elements   in   FACE    which    would   have   provided   a
    
    “jurisdictional nexus.”    These elements are ones which explicitly
    
    
                                       52
    tie the prohibited conduct in a criminal statute to interstate
    
    commerce.   The absence of a jurisdictional nexus was an important
    
    factor in the Supreme Court’s disapproval of the Gun-Free School
    
    Zones Act in Lopez.      See Lopez, 514 U.S. at 561-62.
    
          The   simplicity       with    which        FACE     could     have    been
    
    jurisdictionally limited is easily demonstrated.              For example, the
    
    statute defines the term “facility” as meaning “a hospital, clinic,
    
    physician’s office, or other facility that provides reproductive
    
    health services, and includes the building or structure in which
    
    the facility is located.”      18 U.S.C. § 248(e)(1).          Congress could
    
    have qualified the definition by limiting it to facilities that
    
    provide reproductive health services “to a person who has traveled
    
    in   interstate   commerce    in    order    to    receive    such    services.”
    
    Likewise, in § 248(a) (“Prohibited activities”), Congress could
    
    have limited its prohibition to the use of force or physical
    
    obstruction to injure, intimidate, or interfere with any person who
    
    has traveled in interstate commerce to receive or provide abortion
    
    services.
    
          For   whatever   reason,      Congress       opted     not     to   include
    
    jurisdictional elements.       As a consequence, this is yet another
    
    factor that distinguishes FACE from the category of legislation
    
    permitted as regulation of intrastate activity which substantially
    
    affects interstate commerce.
    
    
    
    D. FACE Intrudes on Issues Which Are Historically Local Concerns
    and Outside the Regulatory Power of the Federal Government Under
    the Interstate Commerce Clause.
    
    
                                          53
         The regulation of violent actions by one person against
    
    another through criminal laws is the most elemental component of
    
    general police power.   The prohibited conduct in FACE—the use of
    
    force, threats of force, or physical obstruction to intentionally
    
    injure, intimidate, or interfere with another person—are well
    
    within the classic type of prohibitions which a state exercising
    
    its general police power may adopt.    In its Lopez decision, the
    
    Supreme Court repeatedly indicated that the Congress does not have
    
    a general police power and that such power rests exclusively with
    
    the states.   See Lopez, 514 U.S. at 561 n.3 (“Under our federal
    
    system, the ‘“States possess primary authority for defining and
    
    enforcing the criminal law.”’” (quoting Brecht v. Abrahamson, 
    507 U.S. 619
    , 635 (1993) (quoting Engle v. Isaac, 
    456 U.S. 107
    , 128
    
    (1982)))); id. at 564 (“Under the theories that the Government
    
    presents . . . it is difficult to perceive any limitation on
    
    federal power, even in areas such as criminal law enforcement or
    
    education where States historically have been sovereign.”); id. at
    
    566 (“The Constitution . . . withhold[s] from Congress a plenary
    
    police power that would authorize enactment of every type of
    
    legislation.” (citing U.S. CONST., art. 1, § 8)); id. at 567 (“[T]o
    
    uphold the Government’s contentions here, we would have to pile
    
    inference upon inference in a manner that would bid fair to convert
    
    congressional authority under the Commerce Clause to a general
    
    police power of the sort retained by the States.”).
    
         The Congress was obviously motivated to enact FACE by the
    
    desire to protect persons seeking to obtain or perform abortion
    
    
                                    54
    services. But this area is distinctly within the province of local
    
    law.        The     Lopez     Court   considered      family     law     to    be     the
    
    quintessential example of such a local concern, see id. at 564, and
    
    the    action      of   obtaining     an   abortion      results    from       what    is
    
    essentially a family decision.             That the regulation of abortion in
    
    particular is a local issue is borne out by the history.                         Before
    
    Roe v. Wade, 
    410 U.S. 113
     (1973), the states were prohibiting and
    
    regulating abortions by state statute.                   In holding these state
    
    statutes unconstitutional, the Supreme Court grounded its decisions
    
    in    the   liberty      or   privacy   elements    of    the    First     and      Fifth
    
    Amendments as made applicable to the states by the Fourteenth
    
    Amendment.        See Roe, 410 U.S. at 152-53.          Neither in Roe nor in any
    
    of its progeny did the Supreme Court ever mention the Commerce
    
    Clause (or the dormant commerce clause), nor did the Supreme Court
    
    suggest that these state statutes were unconstitutional because of
    
    their intrusion on interstate commerce nor upon any “national
    
    market” in the delivery of abortion services.                   Even today, in the
    
    wake of Roe and Planned Parenthood v. Casey, 
    505 U.S. 833
     (1992),
    
    many states have statutes which regulate the circumstances of
    
    access to abortions and the conditions under which abortions may be
    
    delivered.         The federal government has no such general abortion
    
    regulation.
    
           Both the regulation of violent acts among citizens and the
    
    regulation of abortion services are areas of distinctively local
    
    concern.          The   prohibitions    imposed    by    FACE   bear     all     of   the
    
    characteristics of enactments of police power.                   Lopez explicitly
    
    
                                               55
    warns against this variety of legislative excess, making this
    
    factor yet one more important distinction between FACE and the laws
    
    which have been approved as permissible regulations of intrastate
    
    conduct that substantially affects interstate commerce.
    
    
    
    E.   FACE Is Unconstitutional.
    
          Since FACE has the same defects and deficiencies which led the
    
    Supreme Court to conclude in Lopez that the Gun-Free School Zones
    
    Act was unconstitutional, I would hold that FACE is likewise
    
    unconstitutional.         It is not clear whether each of these four
    
    distinctions, standing alone, would exclude legislation from the
    
    third category of Commerce Clause legislation identified in Lopez.
    
    As   the   Lopez   Court    itself   noted,    “[t]hese    are    not   precise
    
    formulations, and in the nature of things they cannot be.”               Lopez,
    
    514 U.S. at 567.     However, the presence of all four of the above-
    
    detailed   factors    in    this   case   leaves   no   doubt    that   FACE   is
    
    unconstitutional.
    
    
    
                                         III.
    
          Because the majority concludes that the Commerce Clause gave
    
    Congress the requisite authority to adopt FACE, they “pretermit the
    
    substantially      more    questionable      assertion    of     congressional
    
    authority [under Section Five of the Fourteenth Amendment] to
    
    criminalize purely private conduct (not directed at state property
    
    or facilities).”      Ante at 31.         Since I would conclude that the
    
    Commerce Clause does not permit Congress’s passage of FACE, and
    
    
                                          56
    since   supporting        FACE    under       Section       Five   of    the     Fourteenth
    
    Amendment was clearly raised in this appeal, I am not at liberty to
    
    pretermit    the       latter    question.           However,      in    light    of    well-
    
    established    principles         which       were    recently      reaffirmed         by   the
    
    Supreme Court’s decision in City of Boerne v. Flores, 
    117 S. Ct. 2157
     (1997),       I    conclude       that    Section      Five    of    the    Fourteenth
    
    Amendment does not empower Congress to enact FACE.
    
         FACE purports to criminalize the conduct of private parties
    
    for conduct which is not directed at state property or facilities.
    
    Plainly,    Section       Five    of    the     Fourteenth         Amendment      does      not
    
    contemplate the passage of such a law.                     It provides that “Congress
    
    shall have the power to enforce, by appropriate legislation, the
    
    provisions of this article.”                  U.S. CONST. amend. XIV, § 5.                  The
    
    “provisions” which Section Five empowers Congress to enforce are
    
    directed at the states.           See U.S. CONST. amend. XIV, § 1 (“No State
    
    shall . . . deprive any person of life, liberty, or property,
    
    without due process of law . . . .”).                      As the Supreme Court made
    
    clear in City of Boerne, Section Five of the Fourteenth Amendment
    
    “did not authorize Congress to pass ‘general legislation upon the
    
    rights of the citizen, but corrective legislation; that is, such as
    
    may be necessary and proper for counteracting such laws as the
    
    states may adopt or enforce, and which, by the amendment, they are
    
    prohibited from making or enforcing.’”                     City of Boerne, 117 S. Ct.
    
    at 2166 (quoting The Civil Rights Cases, 
    109 U.S. 3
    , 13-14 (1883)).
    
    Section Five thus was not intended to confer on the federal
    
    government    a    police       power     over       all    matters      related    to      the
    
    
                                                  57
    individual rights contemplated by the Fourteenth Amendment.
    
         After City of Boerne, it is clear that acts passed pursuant to
    
    Section Five must be remedial in nature.        This is not the case with
    
    FACE, which seeks to vindicate Fourteenth Amendment rights through
    
    direct legislation affecting individual conduct, rather than by
    
    providing a remedy for state violations.          Thus, the enactment of
    
    FACE cannot be justified as an exercise of the enforcement power
    
    under the Fourteenth Amendment.
    
         It is interesting to note that the same Congress which passed
    
    FACE also passed the Religious Freedom Restoration Act of 1993, 107
    
    Stat. 1488 (former 42 U.S.C. § 2000bb et seq.) (hereinafter,
    
    “RFRA”), the statute at issue in City of Boerne.              With each of
    
    these laws, Congress was attempting to change through legislation
    
    the result of a prior Supreme Court decision: with FACE, that prior
    
    decision was Bray v. Alexandria Women’s Health Clinic, 
    506 U.S. 263
    
    (1993); and with RFRA, it was Employment Division v. Smith, 
    494 U.S. 872
     (1990).    Just as the Supreme Court in Lopez explained the
    
    limits on Commerce Clause powers, so too did it in City of Boerne
    
    explain the limitations on the powers bestowed by Section Five of
    
    the Fourteenth Amendment.      Both Lopez and City of Boerne reflect
    
    what I believe to be a significant trend on the part of the Supreme
    
    Court in articulating a renewed consciousness of the fundamental
    
    principles   of    our   Constitution,   that    is,   that   our   federal
    
    government is a government of limited powers, federalism has a
    
    significant place in constitutional analysis, and the separation of
    
    powers between the branches of the federal government must be
    
    
                                       58
    respected.
    
    
    
                                   IV.
    
         For these reasons, I respectfully dissent from the majority’s
    
    conclusion that FACE is constitutional.
    
    
    
    
                                   59