UNITED STATES of America, Plaintiff-Appellant, v. George WILSON, et al., Defendants-Appellees, 73 F.3d 675

CUMMINGS, Circuit Judge. At issue is the constitutionality of the Freedom of Access to Clinic Entrances Act (“Access Act”), 18 U.S.C. § 248, which proscribes physical obstruction of facilities providing reproductive health services. The district court held that the Access Act exceeded Congress’s power to legislate under both the Commerce Clause and

Section 5 of the Fourteenth Amendment. United States v. Wilson, 880 F.Supp. 621 (E.D.Wis.1995). Every other federal court to address the issue has upheld the constitutionality of the Access Act, including two circuit courts. American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.1995), certiorari denied, — U.S. -, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995). We agree with these courts and reverse the district court’s decision. I. Background An FBI agent attested to the underlying facts.

On the morning of September 29, 1994, the defendants blockaded the entrances of the Wisconsin Women’s Health Care Center located in Milwaukee, Wisconsin. A Plymouth automobile was wedged into the front entry of the clinic, barring the doors and preventing egress from and ingress to the clinic. Three defendants welded themselves into the Plymouth with an interlocking steel apparatus. The upper body of one defendant protruded through a hole cut in the floor of the automobile and his lower body was on the ground underneath the car.

A second ear blocked the rear door, pressing against it and preventing ingress and egress. The other three defendants welded themselves in various positions to and in the second car. One defendant was located in the driver’s seat, restrained by a welded steel device confining his head in a steel harness, which was locked around his head by placing a car jack inside a hollow steel pipe. Another defendant was in a hole cut in the passenger-side floorboard, with his lower body resting on the pavement and his upper body confined inside an electric clothes dryer.

His head was restrained in a locked harness secured around his throat. The third defendant was in the right rear passenger seat with his arm encased and handcuffed inside a steel pipe. From 6:30 a.m. to 11:00 a.m., Milwaukee firefighters used hydraulic equipment, blow torches, saws, and pry bars to extricate the defendants. During this time, two defendants told police officers and firefighters that they (the officers) were assisting in the murder of babies. Anti-abortion signs were displayed near the automobiles. During the blockade, neither clinic staff members nor patients could enter the building.

The blockade barred 12 patients who had appointments between 7:00 a.m. and 11:00 a.m. from receiving scheduled abortions. On September 30, 1994, the United States charged the six defendants with intentionally interfering with and intimidating persons seeking to provide and obtain reproductive health services in violation of the Access Act. Defendants were charged under

Section 248(a)(1) of the Act, which subjects to criminal penalties whoever “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.” 18 U.S.C. § 248(a)(1). II. District Court Decision The defendants moved to dismiss the charges, in part because the Access Act exceeded Congress’s authority to legislate.

A federal magistrate judge, rejected the defendants’ motion in an Order and Recommendation dated November 30, 1994. On March 16, 1995, the district court rejected the magistrate’s recommendation and dismissed the charges, holding that

Section 248(a)(1) of the Access Act is “unconstitutional and void.” 880 F.Supp. at 623. Judge Randa rejected both bases of legislative power asserted by Congress: the Commerce Clause and

Section 5 of the Fourteenth Amendment. Under the Commerce Clause, the court stated that it would defer to a congressional finding that a regulated activity affects interstate commerce if there is a rational basis for the finding. The court interpreted the rational basis test to mean that “if the logic underlying the stated connection to interstate commerce would provide a basis for regulating any human activity, that logic is not rational within the context of the Constitution.” Id. at 626.

Applying the rational basis test, the district court found that the Access Act could only be justified as an activity “affecting commerce.” Id. at 627 (citing the third of three categories reached by the Commerce Clause as outlined in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)).

The court distilled three types of activities “affecting commerce” based on Supreme Court precedent and found that none compelled a finding of constitutionality: (1) trivial activity that undermines a national commercial regulatory scheme; (2) commercial activity that affects interstate travel; and (3) activity that employs violent means to achieve an economic purpose. 880 F.Supp. at 627-630. The district court then declined to rely on four congressional findings to extend Supreme Court precedent, reasoning that relying on any of the four findings would be a basis for federal regulation of any human activity.

First, the finding that abortion clinics operate within the stream of interstate commerce does not differentiate other human activities, because “all persons and all entities operate within the stream of commerce.” Id. at 630. Second, the finding that some individuals cross state lines to provide or obtain abortions is not limited, given the high mobility of our society. Third, Congress found that obstructing access to abortion clinics decreases the number of abortions performed and therefore negatively impacts interstate commerce.

The district court reasoned that this finding is also limitless, because it would allow Congress to regulate any activity that decreases the sale or purchase of specific goods, including shoplifting. Finally, the court rejected Congress’s finding that the problem is national in scope and beyond the ability of the states to control as irrelevant to the question whether the Access Act substantially affects interstate commerce. III. Discussion A. We review a determination of the constitutionality of a federal statute de novo. Smith v.

Shalala, 5 F.3d 235, 238 (7th Cir.1993), certiorari denied, - U.S. -, 114 S.Ct. 1309, 127 L.Ed.2d 660 (1994). Our jurisdiction is premised on 28 U.S.C. § 1291. Congress passed the Access Act to address a nation-wide campaign of blockades, invasions, vandalism, threats, and other violence barring access to reproductive health facilities. H.R.Rep. No. 306,103d Cong., 2d Sess. 6 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 703.

Congress found that more than 1,000 acts of violence against providers of reproductive health services were reported in the United States from 1977 to April 1993, including “at least 36 bombings, 81 arsons, 131 death threats, 84 assaults, two kidnappings, 327 clinic ‘invasions,’ and one murder.” In addition, more than 6,000 blockades and other disruptions have been reported since 1977. H.R.Rep. at 6-7, 1994 U.S.C.C.AN. at 703-704.

Congress found that state and local law enforcement agencies have failed to address effectively the nationwide assault on reproductive health facilities and that local laws such as trespass, vandalism, and assault have proven inadequate to address the problem. H.R.Rep. at 10, 1994 U.S.C.C.A.N. at 707; see also S.Rep. No. 117,103d Cong., 1st Sess. 3,18-21 (1993). Federal law was also inadequate. Prior to the Supreme Court’s decision in Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), federal courts enjoined the conduct described above pursuant to 42 U.S.C. § 1985(3), but Bray denied a remedy under that statute to persons injured by the obstruction of access to abortion-related services. H.R.Conf.Rep. No. 488, 103d Cong., 2d Sess. 7 (1994), reprinted in 1994 U.S.C.C.A.N. 699, 724.

Congress enacted the Access Act to protect and promote public safety and health “by establishing Federal criminal penalties and civil remedies for certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services.” Pub.L. No. 103-259, § 2 (1994).

Thus the Act provides civil and criminal penalties against anyone who: (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; * * * or (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services * * * 18 U.S.C. § 248(a). B.

The defendants charged under the Access Act succeeded in arguing below that Congress lacked authority to regulate activities affecting reproductive health services. Congress asserted authority under the Commerce Clause and

Section 5 of the Fourteenth Amendment to enact the Access Act. Pub.L. No. 103-259, § 2. On appeal, the Government argues that the district court erred in rejecting both constitutional bases of congressional authority. Because we conclude that Congress had authority under the Commerce Clause, we express no opinion regarding the district court’s Fourteenth Amendment discussion. The Supreme Court applies the same general framework for analyzing Commerce Clause challenges as the district court in this case. Congress may regulate under its commerce power in three broad categories.

First, it may regulate the use of the channels of interstate commerce. Second, Congress may 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. Third, Congress may regulate those activities having a substantial relation to interstate commerce — those activities that substantially affect interstate commerce. United States v. Lopez, —— U.S. -, -, 115 S.Ct. 1624, 1629-1630, 131 L.Ed.2d 626 (1995); Perez, 402 U.S. at 150, 91 S.Ct. at 1359-1360.

The judiciary will make an independent inquiry into the constitutionality of a statute under the Commerce Clause, but the court will consider congressional findings, including congressional committee findings. — U.S. at-, 115 S.Ct. at 1631. However, in category three cases, “simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” Id. at -n. 2, 115 S.Ct. at 1629 n. 2 (quoting Hodel v.

Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 311, 101 S.Ct. 2352, 2374, 69 L.Ed.2d 1 (1981) (Rehnquist, J., concurring in judgment)). Permitting Congress to proclaim the extent of its own power would violate the principle of judicial review set out in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Therefore, courts will decide whether a rational basis exists for concluding that a regulated activity substantially affects interstate commerce. — U.S. at -, 115 S.Ct. at 1629 (citing, inter alia, Hodel, 452 U.S. at 276-280, 101 S.Ct. at 2360-2361).

We agree with the district court that the Access Act does not regulate the channels of interstate commerce within the meaning of the first category. However, we disagree with the district court’s reasoning under the third category and hold that the Access Act is constitutional as a regulation that substantially affects interstate commerce. Finally, although we decline to decide whether the Act fits within the second category, the applicability of that category warrants more careful consideration than that offered by .the district court. 1.

Congress made four basic findings regarding the interstate nature of the regulated activities under the Access Act. These findings are plainly rational, and the first three reveal the regulated activities’ substantial relation to interstate commerce. While the fourth finding does not independently satisfy the substantial effects test, it serves to confirm the interstate nature of the problem Congress sought to address in the Access Act.

First, Congress found that reproductive health facilities operate within the stream of interstate commerce and that the activities proscribed by the Act bring the commerce of a targeted facility to a halt.

Congress found that reproductive health facilities acquire equipment, “medicine, medical supplies, surgical instruments and other necessary medical products ... from other States,” S.Rep. at 31, and that the conduct proscribed by the Act burdens “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.” H.R.Conf. at 7, 1994 U.S.C.C.A.N. at 724.

Blockading prevents health care providers from rendering, and patients from receiving, the commercial services offered at such facilities. S.Rep. at 7; H.R.Rep. at 6, 1994 U.S.C.C.A.N. at 703. The finding that reproductive health facilities are engaged in interstate commerce is rational. Such facilities will obviously purchase, use, and distribute goods from other States. This places the facilities “in commerce” as that concept is generally understood. See United States v. Robertson, — U.S. -, -, 115 S.Ct. 1732, 1733, 131 L.Ed.2d 714 (1995) (citing United States v. American Bldg.

Maintenance Indus., 422 U.S. 271, 283, 95 S.Ct. 2150, 2158, 45 L.Ed.2d 177 (1975) (“To be engaged ‘in commerce’ ... a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce.”); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 398-399, 42 L.Ed.2d 378 (1974)). Obstruction of those facilities, which the Access Act proscribes, essentially brings the interstate commercial activity at the targeted facility to a halt.

Congress has authority under the Commerce Clause to proscribe activity that interferes with interstate commerce. United States v. Coombs, 37 U.S. (12 Pet.) 72, 78, 9 L.Ed. 1004 (1838). The district court dismissed Congress’s finding as a statement of the obvious — a limitless rationale that would justify any regulation, because “all persons and all entities operate within the stream of commerce.” 880 F.Supp. at 630. By rejecting Congress’s finding out of hand, the district court erred in failing to address whether the regulated activities substantially affect interstate commerce. Since NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), repudiated the direct/indirect test under the Commerce Clause, the substantial effects test has been used to limit congressional authority. This change was largely do to the new national economy in which, indeed, all persons and all entities operate within the stream of commerce. See Lopez, — U.S. at -, 115 S.Ct. at 1628. Thus courts must ask the additional question whether the relation to interstate commerce is substantial. The district court erred further by giving no deference to Congress’s finding.

Courts need only look for a rational basis. Hodel, 452 U.S. at 276, 101 S.Ct. at 2360. The district court essentially converted the rational basis test into a less deferential standard. Here it is plainly rational that reproductive health facilities are engaged in interstate commerce and that obstruction of such facilities brings the commerce to a halt.

Second, Congress found that individuals travel interstate to obtain and provide reproductive health services: “[M]any 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. at 31; see also H.R.Rep. at 10, 1994 U.S.C.C.A.N. at 707. The district court was unpersuaded by this finding, given society’s high mobility: “If some people cross state lines to go golfing, bowling, camping or shopping, can Congress regulate these activities?” 880 F.Supp. at 631.

Again, the district court erred by failing to apply the substantial effects test to Congress’s finding. If individuals travel interstate more often to seek and provide reproductive health services than to bowl or to camp, Congress’s authority to regulate may very well reach health facilities but not bowling alleys or campgrounds: courts must apply the substantial effects test to draw the proper distinction.

A rational basis exists for finding that interstate travel of individuals seeking reproductive health services is substantial, and that obstructing those individuals therefore substantially affects interstate commerce. Congress noted that most facilities are located in urban centers and that only 17 percent of all U.S. counties have facilities. Thus “rural clinics and doctors have become the preferred targets for abortion foes because elimination of that single provider effectively eliminates service for many women.” H.R.Rep. at 8, 1994 U.S.C.C.A.N. at 705.

Further, Congress noted that clinic owners face shortages of doctors willing to perform abortions. Id. Thus, unlike bowling and other activities, the unique scarcity of certain reproductive health services necessitates substantial interstate travel. In addition, several courts have recognized the substantial interstate travel involved in reproductive health care.

See Bray, 506 U.S. at 274, 113 S.Ct. at 762 (Stevens, J., dissenting) (“Between 20 and 30 percent of the patients at a targeted clinic in Virginia were from out of State and over half of the patients at one of the Maryland clinics were interstate travelers.”); National Org. for Women v. Operation Rescue, 726 F.Supp. 1483, 1489 (E.D.Va.1989) (“[Substantial numbers of [abortion] clinics in the Washington Metropolitan area travel interstate to reach the clinics.”) (subsequent history omitted); see also New York State Nat’l Org. for Women v.

Terry, 886 F.2d 1339, 1360 (2d Cir.1989), certiorari denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); Women’s Health Care Servs. v. Operation Rescue, 773 F.Supp. 258, 266-267 (D.Kan.1991), reversed on other grounds, 24 F.3d 107 (10th Cir.1994); Margaret S. v. Edwards, 488 F.Supp. 181, 212 (E.D.La.1980). Third, Congress found that obstruction of facilities decreases the overall availability of reproductive health services nationwide.

Congress heard testimony from which it concluded that “the avowed purpose of this conduct is to eliminate ... abortion services” altogether “by closing clinics and intimidating doctors.” S.Rep. at 11. A leader of Operation Rescue told Congress that his purpose was “to see abortion clinics stopped ... closed down,” and another leader stated, “We may not get laws changed or be able to change people’s minds, ... but if there is no one willing to conduct abortions, there are no abortions.” S.Rep. at 11. Congress found evidence that the campaign was succeeding: “This conduct has forced climes to close....

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. at 14. As stated above, only 17 percent of all U.S. counties have reproductive health facilities and clinic owners face shortages of doctors willing to perform abortions. H.R.Rep. at 8, 1994 U.S.C.C.A.N. at 705.

The district court rejected this finding, stating that it would justify giving Congress the unprecedented power “to regulate any human activity which arguably decreases the sale or purchase of specific goods or services[.]” 880 F.Supp. at 631. The district court again erred in not asking the relevant question — whether obstruction of reproductive health facilities substantially affects interstate commerce. A mere decrease in the sale or purchase of goods or services would not qualify, of course, but the district court failed to consider that the Access Act might address a substantial threat to commerce.

Indeed, the evidence Congress relied upon reveals a substantial threat to the national reproductive health services market. It is this threat to a national market, which Congress found to be scarce and declining in availability, that distinguishes Congress’s authority to regulate in this case from its probable lack of authority to regulate, for example, shoplifting (cited by the district court, 880 F.Supp. at 631 n. 17, because it “reduces the supply of goods”). Fourth, Congress found that obstruction of facilities is a nationwide problem that is beyond the control of individual states.

Congress heard testimony that organizations like Operation Rescue engage in national campaigns to close abortion clinics. Congress cited examples of national campaigns targeted at clinics in Wichita, Buffalo, Dobbs Ferry, and at the only clinic in North Dakota: “Hundreds of people came from across the country and engaged in acts of trespass and obstruction that overwhelmed local law enforcement’s ability to respond.” H.R.Rep. at 7, 1994 U.S.C.C.A.N. at 704.

Congress found that clinic blockading typically involves hundreds, or even thousands, of people trespassing, blocking entrances, and interfering with the efforts of health care providers. Id.; S.Rep. at 7. One court noted that during a “rescue” by anti-abortion activists seeking to close a clinic, “hundreds and perhaps thousands of persons came to Wichita from across the nation to engage in such activity.” United States v. Cooley, 787 F.Supp. 977, 980 (D.Kan.1992), vacated on other grounds, 1 F.3d 985 (10th Cir.1993) (further subsequent history omitted).

Congress also heard extensive testimony about the inability and unwillingness of local law enforcement to respond effectively to “the systematic and nationwide assault that is being waged against health care providers and patients.” S.Rep. at 19, 21; H.R.Rep. at 6,1994 U.S.C.C.A.N. at 703. We agree with the district court that this finding, standing alone, does not justify Congress’s power to enact the Access Act. As the district court noted, it is not enough that a problem is national in scope or that local officials are unable to control the problem. 880 F.Supp. at 631.

Rather, the activities must substantially affect interstate commerce. Thus Congress’s finding that the problems at reproductive health facilities are national in scope adds little to the relevant inquiry. The district court, however, failed to note the crux of Congress’s finding: the essence of the finding is not that the problem is national in scope, but that the effort to close reproductive health facilities is organized on a national scale. In other words, Congress was addressing an interstate problem rather than a multistate, intrastate problem.

Nonetheless, while this fact adds little to Congress’s other findings, it does help confirm that Congress properly sought to address a truly interstate problem by enacting the Access Act. These findings demonstrate that the Access Act falls well within Congress’s Commerce Clause power to regulate activities that substantially affect interstate commerce. Defendants argue, however, that the Supreme Court’s recent decision in Lopez, supra, compels a different result. Despite defendants’ best efforts, we find that Lopez is easily distinguished from this case.

In Lopez, the Court invalidated the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(l)(A). Congress made no findings relevant to its Commerce Clause power in enacting the Gun-Free School Zones Act. In particular, it was conceded that neither the statute nor its legislative history contained any findings about the effects on interstate commerce of gun possession near schools. — U.S. at -, 115 S.Ct. at 1631.

The Court held the statute unconstitutional as exceeding Congress’s Commerce Clause power because it did not involve commerce or any other economic enterprise within the meaning established by prior easelaw and because it contained no jurisdictional element to ensure, case-by-case, that the regulated activity affected interstate commerce. Id. at -, 115 S.Ct. at 1630-1631. We agree with the Eleventh Circuit that the Access Act, unlike the Gun-Free School Zones Act, regulates a commercial activity— the provision of reproductive health services. Cheffer, 55 F.3d at 1520-1521.

Reproductive health clinics engage in interstate commerce by purchasing, using, and dispensing goods that have travelled in interstate commerce. Their commercial activity also includes owning and leasing office space, employing staff, and generating income. The Access Act regulates this commercial activity by preventing its obstruction. Moreover, Congress’s findings reveal that there exists a substantial interstate market for reproductive health services. Largely because of the scarcity of certain services, women seeking health services and providers of such services travel interstate.

The Access Act helps ensure that these individuals are able to engage in this interstate commercial activity. The Act by its terms prohibits interference with persons because they are engaging in commercial activity. See 18 U.S.C. § 248(a)(1) (prohibiting interference with “persons ... obtaining or providing reproductive health services”). Lopez is also distinguishable because in enacting the Access Act, unlike the Gun-Free School Zones Act, Congress made specific findings regarding the substantial effect on interstate commerce.

Although the Supreme Court stated that Congress is normally not required to make specific findings, — U.S. at -, 115 S.Ct. at 1631 (citing Perez, 402 U.S. at 156, 91 S.Ct. at 1362), it noted that congressional findings would be helpful when it is not “visible to the naked eye” that the activity in question substantially affects interstate commerce. Id. at-, 115 S.Ct. at 1632. It is easy enough to imagine congressional findings that, if found rational, could have made Lopez a very different case.

Hypothetically, Congress might have produced reliable data showing that possession of guns closed down 20% of urban schools and, as a result, low productivity among the citizenry in certain regions hampered commerce. The point is that congressional findings matter. Because Congress made numerous, specific findings regarding the Access Act, the courts are not left to imagine — as in Lopez — how the regulated activities affect interstate commerce. Defendants make several specific arguments regarding the applicability of Lopez. Only two of defendants’ contentions warrant discussion.

First, they argue that the Access Act, like the Gun-Free School Zones Act, “is a criminal statute that by its terms has nothing to do with‘commerce’_” — U.S. at -, 115 S.Ct. at 1630-1631. The Court in Lopez noted that States possess primary authority for defining and enforcing the criminal law, and that when Congress criminalizes activity it upsets the relation between federal and state criminal jurisdictions. Id. at-n. 3, 115 S.Ct. at 1631 n. 3.

Lopez, however, did not call into question the well-established principle that Congress may regulate conduct even though that conduct already violates state law: The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States’ exercise of their police powers....

It would [ ] be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. Hodel, 452 U.S. at 291-292, 101 S.Ct. at 2368; see also United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116-1117, 55 L.Ed.2d 349 (1978) (rejecting concern that Congress disturbed federal-state balance where Congress clearly intended to criminalize conduct already criminal under state law).

Second, defendants argue that the Access Act, like the Gun-Free School Zones Act, regulates only noncommercial activity — protesting at abortion climes. The district court invoked the same argument: Congress is impermissibly regulating private conduct that affects commercial entities rather than commercial entities themselves. 880 F.Supp. at 628. There is no authority for the proposition that Congress’s power extends only to the regulation of commercial entities. To the contrary, courts have upheld numerous statutes which regulate private conduct that affects commercial entities or commercial activity.

For example, Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), upheld a conviction under 18 U.S.C. § 844(i), which penalizes a person who damages or destroys by fire or explosives any property used in any activity affecting interstate commerce. See Cheffer, 55 F.3d at 1520 n. 6, for other examples.

The dissent mischaracterizes Lopez as holding “that only two types of federal regulation may be justified on the grounds that a regulated activity ‘substantially affects interstate commerce’ (1) federal criminal statutes that include a jurisdictional element, ensuring that the proscribed conduct substantially affects interstate commerce; and (2) regulations that reach economic activity that substantially affects interstate commerce. In no such way did Lopez delineate the substantial effects test.

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 constitutional, or that any statute without such an element is per se unconstitutional. — U.S. at -, 115 S.Ct. at 1631. Read in context, the Court simply stated that the Gun-Free School Zones Act, unlike the statute in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), lacks a jurisdictional element to “ensure” constitutionality, not to fulfill a prerequisite of constitutionality.

See Lopez, — U.S. at -, 115 S.Ct. at 1631. Regarding the dissent’s

interpretation of the second Lopez category, we find no support for reading Lopez as permitting only regulation of economic activities exclusive of regulations that reach or affect economic activities. The Court’s language is dear that the substantial effects test is not so limited: it concluded that the firearms statute could not “be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Id. (emphasis added).

The dissent seemingly misreads the Court’s discussion of Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), which the Court distinguished on economic activity grounds, as delimiting the substantial effects test, see id. at -, 115 S.Ct. at 1630-1631; however, the Court’s subsequent discussion (quoted above) belies the dissent’s

interpretation. Unlike the dissent, this Court will not read such a dramatic change into the law by selectively relying on Supreme Court statements plucked from their context. Aside from the alleged similarities between the Access Act and the Gun-Free School Zones Act, defendants claim that Lopez worked a fundamental change in Commerce Clause jurisprudence. The dissent apparently agrees. Lopez is no doubt significant as one of the only cases to hold that Congress exceeded its Commerce Clause authority since A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), struck down federal wage and hour regulations. But the Supreme Court reaffirmed, rather than overturned, the previous half century of Commerce Clause precedent in Lopez. As the Court’s detailed tracing of Commerce Clause jurisprudence readily concedes, the foundation of cases like Schechter Poultry — that activities affecting interstate commerce directly are within Congress’s power, but activities affecting interstate commerce only indirectly are not — has completely eroded. Jones & Laughlin, supra; Wickard v.

Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89 (expressly repudiating the direct/indirect distinction). The substantial effects test now defines the limits of the commerce power. Because the Supreme Court left intact Jones & Laughlin and all its progeny, which includes cases such as Wickard and Lopez, it obviously did not intend Lopez to be a departure from established Commerce Clause precedent. See — U.S. at -, 115 S.Ct. at 1637 (Kennedy, J., concurring). Lopez is primarily significant because it helps define the line between what Congress may regulate and what it may not. The line certainly preexisted Lopez.

See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195, 6 L.Ed. 23 (1824): (“The enumeration [of powers] presupposes something not enumerated....”). Now, courts facing Commerce Clause challenges must reconcile Lopez with a long line of cases that construed the Commerce Clause expansively. Adhering to Lopez while preserving sixty years of Commerce Clause precedent is, fortunately, not difficult in this case. Contrary to defendants’ assertions, the Access Act falls far short of the line crossed by the Gun-Free School Zones Act in Lopez.

In the end, Lopez is a significant case — or as the dissent states, a “landmark” — because it did what had not been done for decades. But the Supreme Court left intact and relied on decades of Commerce Clause jurisprudence. Unlike the dissent, we are guided both by what the Supreme Court did and did not do in Lopez. 2. Although we conclude that the Access Act is constitutional because it regulates activity that substantially affects interstate commerce, the Government argues that the Act also qualifies under the second category as a regulation of an instrumentality of interstate commerce.

The district court dismissed the second category without discussion. 880 F.Supp. at 627. The Government argues on appeal that the district court erred, relying on the Lopez Court’s verbal formulation of the second category: “Congress is empowered to regulate and protect the instrumen-talities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activity.” — U.S. at -, 115 S.Ct. at 1629 (emphasis added in Government’s brief).

The Government argues that the Access Act protects persons in interstate commerce, by prohibiting interference with individuals because they are obtaining or providing reproductive health services, and things in interstate commerce, by prohibiting obstruction that prevents commerce in goods used and dispensed by reproductive health facilities. Applicability of the second category warrants more careful consideration than that given by the district court. The Government’s argument is persuasive if Lopez’s verbal formulation of the second category, essentially dicta, is interpreted literally.

As such, Congress could enact legislation that affects intrastate threats to interstate commerce in six subcategories: (1) to regulate the instrumentalities of interstate commerce; (2) to protect the instrumentalities of interstate commerce; (3) to regulate persons in interstate commerce; (4) to protect persons in interstate commerce; (5) to regulate things in interstate commerce; and (6) to protect things in interstate commerce. The Government places the Access Act within two of these subeategories.

First, because Congress found that substantial numbers of women travel interstate to seek abortion services, S.Rep. at 31, the Act protects persons in interstate travel (number four). Second, because Congress found that goods used and dispensed by the facilities travel in interstate commerce, id., the Act protects things in interstate commerce (number six). The Supreme Court articulated the three categories of commerce power in Perez, 402 U.S. at 150, 91 S.Ct. at 1359-1360.

The eases cited in support of the second category in Perez and Lopez do not clearly support the six subeategories derived from a literal reading of Lopez. The first issue, therefore, is whether the precedent cited by the Supreme Court supports any or all of the six subcategories, i.e., whether the Court meant what it said in Lopez with regard to the second category. In support of the second category, the Court has cited Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), Southern Ry. v.

United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), and two examples cited in Perez, the destruction of an aircraft (18 U.S.C. § 32) and thefts from interstate shipments (18 U.S.C. § 659). — U.S. at -, 115 S.Ct. at 1629.

In Shreveport, the Court upheld rate restrictions on railroads travelling between Texas and Louisiana even though the restrictions effectively abrogated rates set for intrastate travel, holding that Congress’s “authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic_” 234 U.S. at 351, 34 S.Ct. at 836.

Shreveport thus involved only a regulation of an instrumentality of interstate travel (number one). In Southern Railway, the Court upheld the Safety Appliance Acts, even though the Acts would apply to railroads moving in interstate and intrastate traffic.

The rationale for the holding was based on an affirmative answer to the following question: “Is there such a close or direct relation or connection between the two classes of traffic, when moving over the same railroad, as to make it certain that the safety of the interstate traffic and of those who are employed in its movement will be promoted in a real or substantial sense by applying the requirements of these acts to vehicles used in [both interstate and intrastate traffic]?” 222 U.S. at 26, 32 S.Ct. at 4.

The Acts upheld thus protected instrumentalities of interstate commerce (the railroad cars), people in interstate commerce (railroad workers), and things in interstate commerce (cargo) (numbers two, four, and six). Finally, the Perez Court cited two federal statutes as regulations of instrumentalities of interstate commerce. The statute prohibiting destruction of an aircraft, 18 U.S.C. § 32, protects an instrumentality of interstate commerce (the airplane), people in interstate commerce (passengers), and things in interstate commerce (cargo) (numbers two, four, and six).

The statute forbidding thefts from interstate shipments, 18 U.S.C. § 659, protects only things in interstate commerce (number six). In sum, all but subcategories three and five appear in the Court’s examples of category two cases. Because those subcategories are not at issue here, we find that the Government’s literal reading of Lopez’s characterization of category two is plausible.

The defendants’ contention that category two is inapplicable because the Access Act does not regulate an instrumentality of interstate commerce ignores the language of Perez and Lopez that includes within category two the protection of persons and things. As demonstrated above, inclusion of the language “persons and things” was likely based on precedent — not happenstance. The second issue, therefore, is whether the protection of persons and things under the Access Act is analogous to the protection of persons and things in Southern Railway, 18 U.S.C. § 32, and 18 U.S.C. § 659.

The Government must show that persons seeking to obtain or provide reproductive health services are “in interstate commerce” in the same manner that the railroad workers in Southern Railway and the airline passengers protected by 18 U.S.C. § 32 are “in interstate commerce.” As stated above, there is a rational basis for Congress’s finding that a substantial number of women travel interstate for reproductive health services. Further, it makes no difference that the Access Act primarily protects persons in intrastate commerce.

Lopez, — U.S. at -, 115 S.Ct. at 1626 (Congress may regulate in the third category, “even though the threat may come only from intrastate activities.”). We believe, however, that the protection of persons in these examples is necessarily tied to regulation of an instrumentality of interstate commerce, like a railroad car or an airplane. The protection of persons in both examples is only a subordinate justification of Congress’s power, which clearly extends, without need of further justification, to the regulation and protection of railroad cars and airplanes travelling interstate.

Under the Access Act, however, the Government is forced to argue that protection of persons is the primary justification of Congress’s power. Without further clarification from the Supreme Court, we decline to hold that protection of persons in interstate travel can be the exclusive source of congressional authority to enact the Access Act. On the contrary, the protection of things in interstate commerce is not so clearly tied to regulation of an instrumentality.

Congress has criminalized the theft of goods in interstate travel, including theft of goods from a “storage facility, station, station house, platform or depot_” 18 U.S.C. § 659, cited in Perez, 402 U.S. at 150, 91 S.Ct. at 1359-1360. Unlike the statute in Southern Railway and the aircraft destruction statute,

Section 659 protects interstate goods without regard to their actual presence on an instrumentality of interstate commerce. Thus protection of interstate goods is the primary justification for Congress’s power to criminalize the theft of goods from storage facilities. Unlike the protection-of-persons examples, protection of things in

Section 659 is not subordinate to protection of instrumentalities of interstate commerce. Assuming we have accurately characterized the scope of category two cases as defined in Lopez, the Access Act falls easily within that category. Congress rationally concluded that goods used and dispensed by reproductive health facilities are within interstate commerce. The Access Act criminalizes the obstruction of reproductive health facilities, obstruction that Congress concluded brings the services at such facilities to a halt.

H.R.Rep. at 9, 1994 U.S.C.C.A.N. at 706 (noting that targeted abortion climes have been shut down, permanently or temporarily). When facilities are closed down, the commerce naturally comes to a halt as well. Therefore, the Access Act proscribes conduct that directly interferes with the free flow of interstate goods used in reproductive health facilities. Viewing the Access Act as a category two statute that protects goods in interstate commerce further distinguishes it from the Gun-Free School Zones Act in Lopez.

The Gun-Free School Zones Act proscribed conduct that clearly dealt with goods in interstate commerce — possession of firearms— but the statute in no way protected those goods. The Access Act on the other hand proscribes conduct that directly interferes with goods in interstate commerce. The conceptual distinction between category one and two cases (regulation of the channels and instrumentalities of interstate commerce) and category three cases (substantial effects) seems to be the difference between direct and indirect regulations of commerce, a distinction abandoned after Jones & Laughlin, supra.

But the distinction is still helpful in differentiating category two eases, which would have easily passed muster before Jones & Laughlin, from category three cases, which would not. The Access Act and 18 U.S.C. § 659 are direct regulations of interstate commerce in the sense that both statutes regulate conduct that directly interferes with the free flow of goods in interstate commerce:

Section 659 prohibits theft of goods and the Access Act prohibits physical obstruction of goods. The Gun-Free School Zones Act does neither with respect to firearms, nor, without further findings from Congress, is it obvious how the Act protects any interstate goods. Holding that the Access Act qualifies as a regulation of an instrumentality of interstate commerce based on a literal reading of one sentence in Lopez and the citation to 18 U.S.C. § 659 is unnecessary without further guidance from the Supreme Court.

Because the Access Act is constitutional as a regulation that substantially affects interstate commerce, we decline to so hold. Nonetheless, this analysis reveals that the Access Act may be viewed as a direct regulation of interstate commerce and confirms once again that the Act is well within Congress’s power to legislate under the Commerce Clause. IV. Conclusion We conclude that Congress did not exceed its authority under the Commerce Clause when it enacted the Access Act. Congress made several specific findings that the Act regulates activities that substantially affect interstate commerce.

The findings are plainly rational. In substituting its judgment for that of Congress, the district court went beyond its own authority as defined by the Supreme Court: “The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding.” Hodel, 452 U.S. at 276, 101 S.Ct. at 2360. Further, nothing in the Supreme Court’s Lopez decision compels a different result.

The decision of the district court is therefore reversed. . The following district courts have found the Access Act to be a constitutional exercise of Congress's Commerce Clause power: United States v. Dinwiddie, 885 F.Supp. 1299 (W.D.Mo.1995); United States v. Hill, 893 F.Supp. 1034 (N.D.Fla.1994); Riely v. Reno, 860 F.Supp. 693 (D.Ariz. 1994); Cook v. Reno, 859 F.Supp. 1008 (W.D.La.1994); Council for Life Coalition v. Reno, 856 F.Supp. 1422 (S.D.Cal.1994); United States v. White, 893 F.Supp. 1423 (C.D.Cal.1995); United States v. Lucero, 895 F.Supp. 1421 (D.Kan.1995). .

Section 1985(3) proscribes depriving persons of rights or privileges. .

The statute also defines several key terms. “Facility” includes "a hospital, clinic, physician’s office, or other facility that provides reproductive health services.... ” “Reproductive health services” means "reproductive health services provided in a hospital, clinic, physician’s office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of pregnancy.” “Interfere with” means "to restrict a person's freedom of movement.” “Intimidate" means "to place a person in reasonable apprehension of bodily harm to him- or herself or to another.” "Physical obstruction” means “rendering impassable ingress to or egress from a facility ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous." 18 U.S.C. § 248(e). .We fail to see how the dissent can avoid the Fourteenth Amendment issue, however, since

Section 5 provides an independent basis of legislative power. . The first category is limited to regulation of the misuse of channels of interstate commerce. Perez, 402 U.S. at 150. Examples include the shipment of stolen goods, 18 U.S.C. § 2314, et seq.; kidnapped persons, 18 U.S.C. § 1201, et seq.; prostitutes, 18 U.S.C. § 2421, et seq.; and guns, 18 U.S.C. § 922, et seq. See Wilson, 880 F.Supp. at 627. .

In addition to finding that Congress rationally concluded that the Access Act regulates activities substantially related to interstate commerce, we also find that Congress chose a regulatory means reasonably adapted to a permissible end. Both findings are required to hold the statute constitutional. Hodel, 452 U.S. at 276, 101 S.Ct. at 2360.

We agree with the Fourth Circuit that the Access Act's criminal and civil penalties are designed to deter violent, obstructive behavior and are reasonably adapted to five permissible ends: “(1) protecting the free flow of goods and services in commerce, (2) protecting patients in their use of the lawful services of reproductive health facilities, (3) protecting women when they exercise their constitutional right to choose an abortion, (4) protecting the safety of reproductive health care providers, and (5) protecting reproductive health care facilities from physical destruction and damage.” American Life League, 47 F.3d at 647. .

The district court's other examples — use of cabs and busses, dieting, breast-feeding, video rentals, and computers and computer software, 880 F.Supp. at 631 n. 17 — suffer from the same infirmity: the court assumes that Congress’s finding justifies its authority to regulate reproductive health facilities because obstruction of facilities merely decreases the availability of reproductive health services. This assumption is wrong. Congress's authority is based on evidence that obstruction of facilities substantially decreases the market for reproductive health services.

The district court's application of its understanding of the rational basis test — that a finding must be rejected “if the logic underlying the stated connection to interstate commerce would provide a basis for regulating any human activity,” 880 F.Supp. at 626 — is seriously flawed. It is easy enough to analyze a finding, as the district court did, at the highest level of generality to find it applicable in virtually every situation.

But the rational basis test, properly applied, is very different: it requires courts to defer to Congress on a case-by-case basis when Congress's findings reveal a substantial relation to interstate commerce. Thus the rational basis test, focusing as it does on the substantial nature of the relation to interstate commerce in an individual case, operates at a much lower level of generality. The dissent's review of Congress's findings is in the same vein as the lower court's review.

The inappropriately non-deferential and result-oriented nature of the dissent's analysis is revealed by its suggestion that, because the dissent believes the Access Act is not substantially related to interstate commerce, Congress’s findings should be reviewed with greater scrutiny than required by the rational basis test: "I realize that this analysis of the congressional record may be criticized as 'strict scrutiny,' and not the rational basis inquiry which is proper under the Commerce Clause.

However, because the acts prohibited by 18 U.S.C. § 248 (acts of civil disobedience) are in no meaningful sense motivated by or directed at interstate commerce (as the services of abortion providers sometimes are), I believe that the findings, relied upon by our supreme legislative body and by the majority, should be evaluated carefully and not accepted at face value.” (Dissent, at pp. 697-698). . The inability or unwillingness of local officials to respond effectively might give Congress the power to legislate under

Section 5 of the Fourteenth Amendment if the conduct of local officials amounts to state action. As stated above, though, we do not reach the Fourteenth Amendment issue in this case. . Defendants have argued, for example, that the legislators enacting the Access Act were biased against opponents of abortion. Even assuming defendants are correct, the assertion is not relevant to the Commerce Clause inquiry. See Hodel, 452 U.S. at 276, 101 S.Ct. at 2360; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257-258, 85 S.Ct. 348, 357-58, 13 L.Ed.2d 258. .

The dissent makes much of the disruption of the federal/state balance, relying on Justice Thomas's Lopez dissent, Justice Powell's dissent in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), and Federalist No. 45 — among others. That the Seventh Circuit may rely on these authorities and ignore a host of binding Commerce Clause cases is wishful thinking employed for the purpose of inexorably achieving a preferred result. In defining the contours of federalism, this Court is not writing on a clean slate. .

Regulating persons and things in commerce may not be conceptually distinct from protecting persons and things in commerce. . This analysis, of course, collapses the protection-of-persons subcategoiy back into the subcategories for protection and regulation of in-strumentalities, which belies a literal reading of Lopez on this issue. We decline to resolve such an important question without further guidance from the Supreme Court where, as here, there is little precedent to consult regarding the limits of category two cases and resolution is irrelevant to the disposition of this case.

Given the Government’s argument under category two both in its brief and at oral argument, we do see value in exposing the confusion under category two.