The Supreme Court last Monday refused to hear a challenge to a lower court ruling upholding the Freedom of Access to Clinic Entrances Act (FACE). That is the law Congress passed last year making it a federal crime to use certain tactics in trying to block patients or staff at clinics which provide abortions. Pro-life activists challenged the law as a violation of freedom of speech.
A three-judge panel of the U.S. Fourth Circuit Court of Appeals unanimously rejected that argument without taking a deep breath. Because the Supreme Court left their decision standing, it is now the law of Maryland, Virginia, West Virginia, North Carolina and South Carolina as unequivocally as if the Supreme Court had ruled that way itself. Federal judges in other states and circuits could still rule otherwise, despite the Supreme Court's refusal, to overturn the act, but so far every ruling but one has been to uphold the law.
It is easy to see why. As the Fourth Circuit panel of judges noted, there was a pressing national concern about violence at abortion clinics. By the time Congress acted, there had been more than 1,000 acts of violence and more than 6,000 blockades at clinics in 16 years. It wasn't the protesters whose rights were being violated, but the individuals who wanted to enter these clinics.
FACE does not prohibit protesters from praying, chanting, counseling, carrying signs, distributing handbills in opposition to abortion "so long as," these Fourth Circuit judges said (in a companion clinic access case), "these activities are carried out in a non-violent, non-obstructive manner. What the act does prohibit is force, the threat of force and physical obstruction intended to deprive someone of the lawful right to use or provide reproductive health services. The use of force or violence is outside the scope of the First Amendment."
A number of court watchers thought the Supreme Court might use the abortion access law to say more on the issue of federalism. Earlier this year, the justices overturned an act Congress had based on the Constitution's Commerce Clause. The Supreme Court had not done that in 60 years. The same Fourth Circuit panel of judges dealt with that issue in its other clinic access case. In another unanimous opinion, the judges ruled that Congress acted "rationally" to invoke the Commerce Clause; violence and intimidation at clinics affect interstate commerce in direct ways, the judges said, since goods and services, patrons and providers routinely cross state lines in this enterprise.
The Supreme Court hasn't decided yet whether to hear that case, for technical reasons. (Not all the paper work and arguments are in yet.) We assume that if it does, it will side with the Fourth Circuit judges' rational reading of the circumstances, the law and the Constitution.