1. The commerce clause Congress has clear constitutional authority to enact the Freedom of Access to Clinic Entrances Act under the Commerce Clause, which gives it authority to regulate interstate commerce. Commerce Clause authority has been broadly interpreted, and an exercise of it will be sustained if Congress has a rational basis for finding that an activity affects interstate commerce, and its acts rationally in addressing the activity. Under the Commerce Clause, in conjunction with the Necessary and Proper Clause, Congress has authority to regulate activity that is purely local if that activity has an effect on interstate commerce. Further, once Congress finds that a class of activities affects interstate commerce, Congress may regulate all activities within that class, even if any of those activities, taken individually, has no demonstrable effect on interstate commerce. It has also been considered important to Commerce Clause analysis that the problem Congress is addressing is national in scope and exceeds the ability of a single state or local jurisdiction to solve. Under these principles, S. 636 falls easily within the commerce power. Clinics and other abortion service providers clearly are involved in interstate commerce, both directly and indirectly. They purchase medicine, medical supplies, surgical instruments and other necessary medical products, often from other States; they employ staff; they own and lease office space; they generate income. In short, the Committee finds that they operate within the stream of interstate commerce. In addition, many of the patients who seek services from these facilities engage in interstate commerce by traveling from one state to obtain services in another. In Bray, the Supreme Court accepted the district court's finding that substantial numbers of women travel interstate to seek abortion services. Bray v. Alexandria Women's Health Clinic, supra, 113 S. Ct. 753 at 762. Attorney General Reno pointed out that a Federal district court in Wichita, KS, found that 44 percent of the patients at a clinic there came from out-of-State. And Willa Craig testified before the Committee that many patients of her clinic in Montana came from Idaho, Washington, Wyoming and Canada. Clinic employees sometimes travel across State lines to work as well. Like Dr. David Gunn, the physician who was killed in Pensacola, FL, some doctors who perform abortions work in facilities in more than one State.46 In addition, as Attorney General Reno noted, the types of activities that would be prohibited by S. 636 have a negative effect on interstate commerce. As the record before the Committee demonstrates, clinics have been closed because of blockades and sabotage and have been rendered unable to provide services. Abortion providers have been intimidated and frightened into ceasing to perform abortions. Clearly, the conduct prohibited by S. 636 results in the provision of fewer abortions and less interstate movement of people and goods. This situation is analogous to Congress's exercise 46 Another example is a physician who provides abortion services in Minnesota, Montana, North Dakota, Wisconsin and parts of Canada. UPI, “Doctor Targeted by Anti-abortionists Moving to Montana,” Jan. 29, 1993. of the commerce power in passing Title II of the Civil Rights Act of 1964, which was premised on the conclusion that restaurants that discriminated served fewer customers, and therefore suppressed interstate commerce. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). Here, of course, the very purpose of those engaging in the conduct addressed by S. 636 is to suppress the provision of abortion services. Accordingly, the Committee concludes that Congress clearly has the authority to enact this law pursuant to the Commerce Clause. 2. Section 5 of the fourteenth amendment The Committee concludes that Congress also has independent authority to enact the Freedom of Access to Clinic Entrances Act under Section 5 of the Fourteenth Amendment. Under this section, Congress has the power "to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment, including the provisions dealing with "liberty," "equal protection of the laws," and "the privileges or immunities of citizens of the United States." The Freedom of Access to Clinic Entrances Act seeks to protect the right to terminate a pregnancy, a right that falls squarely within the rights guaranteed by the Fourteenth Amendment. Recently, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992), the Supreme Court reaffirmed its longstanding holding that a woman's decision to terminate her pregnancy prior to fetal viability is protected from state interference by the Fourteenth Amendment's liberty clause. Although the Fourteenth Amendment restricts only state action by its terms, the Committee concludes that Congress has the authority under the Fourteenth Amendment to reach the private conduct prohibited by S. 636. The basis for this conclusion, summarized below, is explained more fully in Professor Tribe's testimony. In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court upheld, as a valid exercise of congressional power under Section 5, a provision of the Voting Rights Act of 1965 that effectively overrode an English literacy voting requirement imposed by New York, even though the Court had previously ruled that enforcing this requirement does not itself violate the Fourteenth or Fifteenth Amendment. The Court reasoned that Congress's power to enforce the Fourteenth Amendment is significantly broader than that of the Judiciary, because Congress may determine on the basis of its superior fact-finding capabilities and the broader range of remedial options open to it-that certain measures are necessary to remove impediments to the political process, or to ensure that other Federal rights are fully secured. The Court noted that, by making it easier for those with a specified level of schooling to vote regardless of their English literacy, Congress facilitated Federal rights, like the right not to be discriminated against on grounds of their national origin in the delivery of municipal services. That principle, first established in Katzenbach, is now well accepted. As Justice O'Connor wrote more recently for a majority of the Court, "[t]he power to 'enforce' [the provisions of the Fourteenth Amendment] may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations." City of Richmond v. J. A. Croson Co., 488 U.S. 469, 490 (1989); see also City of Rome v. United States, 466 U.S. 156, 176 (1980) (“legislation enacted under authority of §5 of the Fourteenth Amendment [will] be upheld so long as the Court [can] find that the enactment, is plainly adapted to [the] end' of enforcing the Equal Protection Clause and is not prohibited by but is consistent with "the letter and spirit of the constitution," regardless of whether the practices outlawed by Congress in themselves violated the Equal Protection Clause") (citations omitted). In addition, in United States v. Guest, 383 U.S. 745 91966), the Supreme Court intimated that Congress could in fact regulate at least some private conduct under the Fourteenth Amendment. In Guest, six Justices joined one or the other of two concurring opinions declaring that Congress possessed the power under Section 5 of the Fourteenth Amendment "to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not State officers or others acting under the color of State law are implicated in the conspiracy." Id. at 782 (opinion of Brennan, J., joined by Warren, C.J., and Douglas, J.); id. at 762 (Clark, J., concurring, joined by Black and Fortas, JJ.). Justice Brennan's opinion utilized an approach identical to the one he subsequently applied in Katzenbach v. Morgan: "§5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection." 383 U.S. at 782 (opinion of Brennan, J.). In dictum in District of Columbia v. Carter, 409 U.S. 418 (1973), a unanimous Supreme Court subsequently reaffirmed the proposition that to say that "[t]he Fourteenth Amendment itself 'erects no shield against merely private conduct' *** is not to say that Congress may not proscribe purely private conduct under §5 of the Fourteenth Amendment." 409 U.S. at 424 n.8. *** Thus, Congress has the authority under Section 5 of the Fourteenth Amendment to read purely private conduct on the ground that states and municipalities, acting alone, will be unable to provide sufficient protection against private acts that threaten the full enjoyment of Federal constitutional rights such as the right to terminate a pregnancy, reaffirmed in Casey. Because the States have been overwhelmed in their efforts to prevent private obstruction of access to abortion clinics and private violence against abortion patients and providers, the Committee concludes that Congress must supplement those efforts with this legislation, and that it has the power to do so under the Fourteenth Amendment. VI. SUMMARY OF COMMITTEE ACTION S. 636, the Freedom of Access to Clinic Entrances Act of 1993, was introduced on March 23, 1993. The committee met to consider it on June 23, 1993. The Committee agreed to an amendment in the nature of a substitute proposed by Senator Kennedy, after disapproving four other amendments. The committee defeated an amendment in the nature of a substitute offered by Senator Coats, by a vote of 6-11. The vote on the Coats amendment was: The committee also defeated three amendments offered by Senator Hatch. The first would have replaced the term "abortion-related services" with "abortion, pregnancy and childbirth services" and supplied a definition for that term. This amendment was defeated by a vote of 8-9. This vote was as follows: The second amendment would have added a new subpart to the bill prohibiting force or threat of force, or physical obstruction, intended to injure, intimidate or interfere with any person exercising the First Amendment freedom of speech within 300 feet of a facility providing abortion services. This amendment was modified by an amendment offered by Senator Gregg prohibiting force or threat of force or physical obstruction to intimidate or prevent any person from participating lawfully in speech or peaceful assembly regarding abortion-related services. This amendment was defeated by a vote of 6-11, as follows: The third Hatch amendment would have added the word "lawful" between "providing" and "abortion-related services." This was defeated by a vote of 5-12, as follows: The Kennedy substitute was then approved on a voice vote, and the bill as amended was reported favorably to the full Senate by a vote of 13-4, as follows: VII. REGULATORY IMPACT STATEMENT The Committee has determined that there will be minimal increases in the regulatory burden imposed by this bill. VIII. COST ESTIMATE U.S. CONGRESS, Hon. EDWARD M. KENNEDY, CONGRESSIONAL BUDGET OFFICE, Chairman, Committee on Labor and Human Resources, U.S. Senate, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed S. 636, the Freedom of Access to Clinic Entrances Act of 1993, as ordered reported by the Senate Committee on Labor and Human Resources on June 23, 1993. CBO estimates that enactment of S. 636 would result in an increase in both federal receipts and direct spending of less than $500,000 annually. Because this |