Cheffer v. Reno

United States Court of Appeals,

Eleventh Circuit.

No. 94-2976.

Myrna CHEFFER, individually; Judy Madsen, individually,
Plaintiffs-Appellants,

v.

Janet RENO, Attorney General of the United States of America, in
her official capacity; Charles R. Wilson, United States Attorney
for the Middle District of Florida, in his official capacity,
Defendants-Appellees.

June 23, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-611-CIV-ORL-18), G. Kendall Sharp,
Judge.

Before ANDERSON and CARNES, Circuit Judges, and RONEY, Senior
Circuit Judge.

ANDERSON, Circuit Judge:

Appellants, anti-abortion activists, challenge the

constitutionality of the Freedom of Access to Clinic Entrances Act

of 1994 (the Access Act or Act), Pub.L. No. 103-259, 108 Stat. 694

(1994) (codified at 18 U.S.C. § 248). Appellants argue that

Congress lacks authority to pass the Access Act and, therefore, the

Act infringes on state sovereignty in violation of the Tenth

Amendment. Appellants also challenge the Act's constitutionality

on its face. They urge that the Act is vague and overbroad,

content and viewpoint based, and acts as a prior restraint, in

violation of their First Amendment free speech rights. Appellants

further claim that the Act violates the First Amendment's Free

Exercise Clause and the Religious Freedom Restoration Act of 1993

(RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4. Finally, appellants argue

that the Access Act is unconstitutional because it imposes
excessive fines and is cruel and unusual under the Eighth

Amendment.1 The district court dismissed appellants' claims.

Because we find the Act withstands appellants' constitutional

challenges, we affirm.

I. BACKGROUND

Congress passed the Access Act in response to increasing
2
incidents of violence and obstruction at abortion clinics. The

stated purpose of the Act is "to protect and promote the public

safety and health and activities affecting interstate commerce 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." Act,

§ 2. The Act imposes 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

1
Appellants also assert that the Access Act violates their
First Amendment right to Freedom of Assembly. Although
appellants have listed Freedom of Assembly in their statement of
the issues, they have not addressed the issue in their brief.
Therefore, this issue is deemed abandoned. Love v. Deal, 5 F.3d
1406, 1407 n. 1 (11th Cir.1993); see also Fed.R.App.P. 28(a)(5).

2
Congress noted that from 1977 through April 1993, more than
1,000 acts of violence against providers of abortion services
were reported in the United States. S.Rep. No. 117, 103 Cong.
1st Sess. 3 (1993). "These acts included at least 36 bombings,
81 arsons, 131 death threats, 84 assaults, two kidnappings, 327
clinic "invasions,' and one murder." Id. In addition, over
6,000 clinic blockades and other disruptions were reported over
the same period. Id.
 (3) intentionally damages or destroys the property of a
facility, or attempts to do so, because such facility provides
reproductive health services....

Act, § 3(a) (codified as 18 U.S.C. § 248(a)).3

Appellants, Myrna Cheffer and Judy Madsen, are strongly

opposed to the practice of abortion. They assert that prior to the

enactment of the Access Act, they attempted to persuade pregnant

women and others to seek alternatives to abortion through the

distribution of literature, oral protest, and sidewalk counseling

outside of abortion clinics. In addition, Madsen admits that she
4
has participated in sit-in's violating the trespass laws.

Appellants have not been arrested or charged with violation of the

Access Act. However, appellants urge that they have been "chilled"

in the exercise of their constitutional rights because they fear

punishment under the Act for their expressive activity in

opposition to abortion.

II. CONGRESS' AUTHORITY TO PASS THE ACCESS ACT

Appellants assert that Congress lacked authority to pass the

Access Act, and thus that the Act infringes on state sovereignty

under the Tenth Amendment. The Tenth Amendment provides: "The

powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people." U.S. Const. amend. X. Therefore,

Congress' valid exercise of authority delegated to it under the

3
The Act also protects places of religious worship. See
Act, § 3(a)(2) (codified as 18 U.S.C. § 248(a)(2)). The
provisions which deal with such protection are not at issue in
this case.
4
Cheffer, on the other hand, contends that she has never
knowingly violated any law.
Constitution does not violate the Tenth Amendment. United States

v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878,

93 S.Ct. 130, 34 L.Ed.2d 131 (1972).5

Congress identified both the Commerce Clause and section 5 of

the Fourteenth Amendment as sources of its authority to pass the

Access Act. Act, § 2. Recently addressing a similar

constitutional attack against the Access Act, the Fourth Circuit

concluded that the Act is within Congress' Commerce Clause power.

American Life League, Inc. v. Reno, 47 F.3d 642, 647 (4th

Cir.1995). We agree with the Fourth Circuit that the Access Act is

within Congress' Commerce power, and adopt the reasoning in Part

III.A. of the American Life League decision on this issue.

However, we pause to discuss the effect on this case of the

recent Supreme Court Commerce Clause decision, United States v.

Lopez, --- U.S. ----, 115 S.Ct. 1624, --- L.Ed.2d ---- (1995).

Decided after American Life League, Lopez struck down the Gun-Free

School Zones Act as exceeding Congress' authority under the

Commerce Clause. Id. at ---- - ----, 115 S.Ct. at 1630-31. The

Gun-Free School Zones Act 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)(1)(A). In enacting the Gun-Free School

Zones Act, Congress made no findings on whether the Act was within

its Commerce Clause authority. In particular, no express

5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this court adopted as binding precedent all
of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
legislative findings were made regarding the effects upon

interstate commerce of gun possession in a school zone. --- U.S.

at ----, 115 S.Ct. at 1631. Although the Court noted that

"Congress normally is not required to make formal findings as to

the substantial burdens that an activity has on interstate

commerce," id., such findings assist the Court in evaluating

whether the regulated activity "substantially affects" interstate

commerce in cases where the effect on commerce is not obvious. Id.

at ---- - ----, 115 S.Ct. at 1631-32. The Court held that the Gun-

Free School Zones Act exceeded Congress' commerce authority to

regulate activities that "substantially affect" interstate

commerce; "[t]he Act neither regulates a commercial activity nor

contains a requirement that the possession [of a firearm] be

connected in any way to interstate commerce." Id. at ----, 115

S.Ct. at 1626.

Unlike the Gun-Free School Zones Act, the Access Act does

regulate commercial activity, the provision of reproductive health

services. Moreover, as the Fourth Circuit noted, extensive

legislative findings support Congress' conclusion that the Access

Act regulates activity which substantially affects interstate

commerce. American Life League, 47 F.3d at 647. Congress found

that doctors and patients often travel across state lines to

provide and receive services, id.; in other words, there is an

interstate market both with respect to patients and doctors. In

addition, the clinics receive supplies through interstate commerce.

Id. Congress further found that violence, and physical obstruction

of clinic entrances, threatened interstate commerce in the
provision of reproductive health services. Id. Thus, in

protecting the commercial activities of reproductive health

providers, the Access Act protects and regulates commercial

enterprises operating in interstate commerce. Lopez, --- U.S. at

----, 115 S.Ct. at 1630 ("Where economic activity substantially

affects interstate commerce, legislation regulating that activity

will be sustained.").6 Congress' findings are plausible and

provide a rational basis for concluding that the Access Act

regulates activity which "substantially affects" interstate

commerce. Thus, the Access Act is a constitutional exercise of

Congress' power under the Commerce Clause. Because the Access Act

6
We are not persuaded by the Wilson court's reasoning that
the Access Act is beyond Congress' Commerce Clause authority
because the Act does not regulate commercial entities, i.e. the
reproductive health providers, "but rather regulates private
conduct affecting commercial entities." United States v. Wilson,
880 F.Supp. 621, 628 (E.D.Wis.1995). The Wilson court cites no
authority, nor can we find any, for the proposition that
Congress' Commerce Clause authority extends only to the
regulation of commercial actors, and not private individuals who
interfere with commercial activities in interstate commerce. To
the contrary, the Court often finds valid under the Commerce
Clause statutes which penalize behavior substantially affecting
interstate commerce without regard to the actor's commercial or
private status. E.g., Russell v. United States, 471 U.S. 858,
105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) (Upholding 18 U.S.C. §
844(i), which penalizes "[w]hoever maliciously damages or
destroys, or attempts to damage or destroy, by means of fire or
an explosive, any building, vehicle, or other real or personal
property used in ... any activity affecting interstate or foreign
commerce...." (emphasis added)); Stirone v. United States, 361
U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (Upholding the Hobbs
Act which criminally penalizes, "[w]hoever in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or extortion ... or
[by] commit[ting] or threaten[ing] physical violence to any
person or property...." 18 U.S.C. § 1951 (emphasis added)). See
also United States v. Dinwiddie, No. 95-0010-CV-W-8, 1995 WL
225585, at *5, --- F.Supp. ----, ---- (W.D.Mo. April 12, 1995)
(declining to follow Wilson and instead following American Life
League ).
is within Congress' Commerce Clause power, it does not violate the

Tenth Amendment.7
III. FREEDOM OF EXPRESSION

American Life League also addressed First Amendment facial

challenges to the Access Act. 47 F.3d at 648-654. The Fourth

Circuit found that the Access Act was not unconstitutionally vague

or overbroad, nor was the Act content or viewpoint based. Id.

Unable to improve on the Fourth Circuit's analysis, we follow

American Life League and adopt its rationale on the free speech

issues.

We add only a brief elaboration. The clear implication in

American Life League is that the term "force" in the context of the

instant statute means "physical force." Id. at 648 ("The use of

force or violence is outside the scope of First Amendment

protection. Wisconsin v. Mitchell, --- U.S. ----, ----, 113 S.Ct.

2194, 2199, 124 L.Ed.2d 436 (1993) ("a physical assault is not by

any stretch of the imagination expressive conduct protected by the

First Amendment')"). We agree with the Fourth Circuit that the

clear meaning of "force" in this statute is "physical force."

Thus, the prohibition of "force" in this statute does not involve

pure speech; rather, it involves only physical force.

The term "force" is often interpreted to mean "physical

force." See Johnson v. Mississippi, 421 U.S. 213, 222-27, 95 S.Ct.

1591, 1597-99, 44 L.Ed.2d 121 (1975) (interpreting similar

7
Because we find that the Act is a valid exercise of
Congress' Commerce Clause power, it is not necessary for us to
reach the issue of whether Congress also has authority to pass
the Act under the Fourteenth Amendment.
language—"by force or threat of force willfully injures, intimates,

or interferes with"—to provide protection against violence). The

context of this particular statute reinforces the "physical force"

interpretation. The Access Act proscribes intentional injury,

intimidation or interference, but only if the same is committed "by

force, threat of force or physical obstruction." Act, § 3(a)(1)

(codified as 18 U.S.C. § 248(a)(1)). The only terms in the instant

statute which by themselves might have a broader sweep are

carefully delimited. Thus, the term "intimidation" is defined:

"to place a person in reasonable apprehension of bodily harm."

Act, § 3(e)(3) (codified as 18 U.S.C. § 248(e)(3)). The activity

proscribed by the broadest terms of the statute is "intimidation"

caused by "threat of force." As demonstrated above, the activity

thus proscribed is a threat of physical force placing a person in

reasonable apprehension of bodily harm.

In addition to injury and intimidation, the statute also

prohibits "interference with" a person because the person is

obtaining or providing reproductive health services. Act, §

3(a)(1) (codified as 18 U.S.C. § 248(a)(1)). Again, however, the

statute prohibits such interference only if accomplished through

"force or threat of force or by physical obstruction." Id. The

term "interfere with" is defined to mean: "to restrict a person's

freedom of movement." Act, § 3(e)(2) (codified as § 248(e)(2)).

The term "physical obstruction" is defined to mean: "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." Act, §
3(e)(4) (codified as § 248(e)(4)). Thus, the statute proscribes

only a restriction of a person's freedom of movement and only if

accomplished by physical force or the threat thereof or by

obstruction rendering passage unreasonably difficult or hazardous.

For the reasons articulated in Part IV.A. through D. of the

American Life League opinion,8 as elaborated above, we readily

conclude that the Access Act is not content or viewpoint based, is

not unconstitutionally vague or overbroad, and does not violate

appellants' First Amendment rights.9

IV. FREE EXERCISE CLAUSE AND RELIGIOUS FREEDOM RESTORATION ACT

American Life League also addressed the argument that the Act

offends the First Amendment's Free Exercise Clause and the

Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§

2000bb to 2000bb-4.10 We concur with the Fourth Circuit that the

8
Because appellants in the instant case do not argue that
the civil damages provisions of the Act violate the First
Amendment, we need not address that issue. See Part IV.E. of
American Life League, 47 F.3d at 653-54.
9
Appellants also argue that the Act is unconstitutional as a
prior restraint. In Woodall v. Reno, 47 F.3d 656 (4th Cir.1995),
petition for cert. filed, 63 U.S.L.W. 3644 (Feb. 21, 1995), the
plaintiffs argued that the injunctive provisions of the Access
Act constituted prior restraints on speech. The Fourth Circuit
declined to assume that a court would issue an injunction in
violation of the well-established prior restraint doctrine. Id.
at 658. Noting that plaintiffs did not claim they were presently
subject to an injunction, the court declined to entertain the
issue until a more concrete controversy arose. Id. Appellants
in the instant case do not assert a prior restraint on the basis
of possible injunctive relief. Rather, appellants' prior
restraint argument boils down to an assertion of extreme chill in
the exercise of their First Amendment rights due to the Act's
vagueness and overbreadth. Because we hold that the Access Act
is not unconstitutionally vague or overbroad, appellants' prior
restraint argument is meritless.
10
The RFRA was passed before the Access Act by the same
Congress that passed the Access Act. Normally, where there is a
Act is generally applicable and neutral toward religion and,

therefore, does not offend the First Amendment's Free Exercise

Clause. 47 F.3d at 654. We adopt the reasoning of Part V.A. of

the American Life League opinion.

Appellants also argue that the Access Act violates their

rights under the Religious Freedom Restoration Act (RFRA). The

RFRA provides in pertinent part:

Government may substantially burden a person's exercise
of religion only if it demonstrates that application of the
burden to the person—1) is in furtherance of a compelling
governmental interest and 2) is the least restrictive means of
furthering that compelling government interest.

42 U.S.C. § 2000bb-1. In American Life League, the Fourth Circuit

found that the plaintiffs had adequately pled that the Act

substantially burdened their religious practice, but held that the

Act survived RFRA scrutiny as the least restrictive means to

achieve compelling government interests. 47 F.3d at 654-656.

Unlike the plaintiffs in American Life League, the appellants here

have not argued that the Access Act "substantially burdens" their

religious practice. Appellants' brief on appeal merely asserts

that they have a sincerely held religious belief that abortion is

murder, and that the Access Act chills their expression of that

belief. However, appellants do not assert that the exercise of

conflict between an earlier statute and a later enactment, the
later statute governs. I.C.C. v. Southern Ry. Co., 543 F.2d 534,
539 (5th Cir.1976). Therefore, under the usual rule the
later-passed Access Act could not violate the RFRA. However, the
RFRA provides that "Federal statutory law adopted after November
16, 1993 is subject to [the RFRA] unless such law explicitly
excludes such application by reference to [the RFRA]." 42 U.S.C.
§ 2000bb-3(b). Thus, because the Access Act was adopted on May
26, 1994, and does not explicitly exclude application of the
RFRA, the Act is subject to the terms of the RFRA.
their religion requires them to use physical force or threats of

physical force to prevent abortions. Moreover, unlike the

plaintiffs in American Life League, appellants do not argue that

the exercise of their religion requires them to physically obstruct

clinic entrances. Because we hold that the Access Act does not

chill appellants in the exercise their First Amendment right of

expression, it follows that they have not been chilled in the

particular expression of their religious belief that abortion is

murder. The Access Act leaves ample avenues open for appellants to
express their deeply-held belief so long as this expression does

not involve physical force, threats of such force, or physical

obstruction. Therefore, as the Act does not "substantially burden"

the only religious practices that appellants assert on appeal, we

hold that the Act survives appellants' challenge under the RFRA

without reaching, as the Fourth Circuit did, whether the Act is the

least restrictive means to further a compelling state interest.11

11
Questions have been raised about the constitutionality of
the RFRA. See, e.g., Canedy v. Boardman, 16 F.3d 183, 186 n. 2
(7th Cir.1994). The questions include whether the RFRA violates
the separation of powers doctrine, see Flores v. City of Boerne,
877 F.Supp. 355 (W.D.Tex.1995), or the Establishment Clause, see
Scott C. Idleman, The Religious Freedom Restoration Act: Pushing
the Limits of Legislative Power, 73 Tex.L.Rev. 247 (1994), and
whether Congress has the authority to enact such legislation in
the first instance, see Marci A. Hamilton, The Religious Freedom
Restoration Act: Letting the Fox into the Henhouse under Cover
of Section 5 of the Fourteenth Amendment, 16 Cardozo L.Rev. 357
(1994). These questions are muddled considerably in this case
because the statute being challenged, the Access Act, is not a
state statute but is instead federal legislation enacted by the
same Congress that earlier enacted the RFRA. It may be, in these
circumstances, that the RFRA can be viewed as simply having the
effect of a contemporaneously enacted rule of construction.
Whatever the answers are to this and the other questions about
the RFRA, we need not decide in this case, because we hold that
appellants have not implicated the RFRA by arguing that the
Access Act "substantially burdens" their religious practice.
 V. EIGHTH AMENDMENT CLAIMS

Finally, appellants argue that the Act violates the Eighth

Amendment by inflicting cruel and unusual punishments and by

imposing excessive fines. These issues were not before the Fourth

Circuit in American Life League. Because appellants seek

pre-enforcement review of the Access Act, we must determine as a

threshold matter, whether appellants' Eighth Amendment claims are

ripe. See Hallandale Professional Fire Fighters Local 2238 v. City

of Hallandale, 922 F.2d 756, 759-60 (11th Cir.1991) (ripeness
generally a concern in anticipatory attack on a statute, ordinance,
12
regulation or policy). Neither party raises the issue of

ripeness. However, as we do not have subject matter jurisdiction

to address unripe claims, Greenbriar, Ltd. v. City of Alabaster,

881 F.2d 1570, 1573 n. 7 (11th Cir.1989), we must nevertheless

confront the issue. Fitzgerald v. Seaboard System R.R., Inc., 760

F.2d 1249, 1251 (11th Cir.1985) ("A federal court not only has the

power but also the obligation at any time to inquire into

12
Because appellants make a pre-enforcement challenge to the
Access Act, nominally all of their claims raise ripeness
concerns. We note that the doctrine of ripeness is more loosely
applied in the First Amendment context. Fire Fighters Local
2238, 922 F.2d at 760 (citing Solomon v. City of Gainesville, 763
F.2d 1212 (11th Cir.1985) and International Soc. for Krishna
Consciousness of Atlanta v. Eaves, 601 F.2d 809, 817 (5th
Cir.1979), in which pre-enforcement First Amendment challenges
were allowed). Appellants' First Amendment claims allege that
the Act currently "chills" specific protected expressive
activities and, thus, present sufficiently concrete and immediate
questions for review. Cf. Fire Fighters Local 2238, 922 F.2d at
762 (First Amendment claim not ripe when plaintiffs raise only a
general claim of "chill" without asserting specifically what they
"might want to do or say that might by protected by the first
amendment but might chilled by the existence of the City's
[challenged] policy" (emphasis in original)). Therefore,
appellants' First Amendment claims are ripe.
jurisdiction whenever the possibility that jurisdiction does not

exist arises.").

Eighth Amendment challenges are generally not ripe until the

imposition, or immediately impending imposition, of a challenged

punishment or fine. Although we have not previously had the

opportunity to examine the doctrine of ripeness in the Eighth

Amendment context, other circuits have found that Eighth Amendment

claims of "cruel and unusual punishment" are not ripe when raised

prior to the actual, or immediately pending, imposition of the

challenged form of punishment. See, e.g., 18 Unnamed "John Smith"

Prisoners v. Meese, 871 F.2d 881, 882-83 (9th Cir.1989) (Eighth

Amendment challenge to proposed double bunking plan as cruel and

unusual punishment not ripe); Askins v. District of Columbia, 877

F.2d 94, 97-99 (D.C.Cir.1989) (challenge to proposed transfer to

another prison facility not ripe). By the same reasoning,

challenges under the Excessive Fines clause are also generally not

ripe until the actual, or impending, imposition of the challenged

fine. See, e.g. United States v. Fleetwood Enterprises, 689

F.Supp. 389, 392 (D.Del.1988) (challenge to Eighth Amendment

constitutionality of potential fines under Manufactured Housing Act

not ripe for adjudication where defendant had been charged under

the Act but fines had not yet been imposed by the court). Under

the particular facts of this case, we apply the general rule that

Eighth Amendment claims are not ripe until the impending imposition

of a punishment or fine.

The ripeness doctrine raises both jurisdictional and

prudential concerns. Johnson v. Sikes, 730 F.2d 644, 648 (11th
Cir.1984). It asks whether there is sufficient injury to meet

Article III's requirement of a case or controversy and, if so,

whether the claim is sufficiently mature, and the issues

sufficiently defined and concrete, to permit effective

decisionmaking by the court. Id. The purpose of the ripeness

doctrine is "to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 149,

87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In deciding whether a

claim is ripe for adjudication or review, we look primarily at two

considerations: (1) the fitness of the issues for judicial

decision, and (2) the hardship to the parties of withholding court

consideration. Id.

Appellants' Eighth Amendment claims fail the prudential, or

"fitness" prong of the ripeness inquiry. The parties do not raise

a purely legal issue which we can decide in the abstract without

further factual development. Cf. Abbott Laboratories, 387 U.S. at

149, 87 S.Ct. at 1515-16 (issue of statutory construction ripe for

review when raised only a "purely legal" question of congressional

intent). Instead, appellants' allegations amount to mere

speculation about contingent future events. They urge that they

may be arrested and convicted under the Access Act and, if so, that

they may be subject to the maximum imprisonment and civil

penalties. Because the Access Act sets only the maximum penalties,

leaving the courts with broad discretion to determine length of

imprisonment or the amount of fines or civil penalties to be

assessed in each case, Act, §§ 3(b), (c)(2)(B) (codified as 18
U.S.C. §§ 248(b), (c)(2)(B)), we cannot determine from the face of

the Act what penalties will actually be imposed. We can only

speculate as to whether the future applications urged by appellants

will come to pass. Moreover, without the facts of a particular

violation, we cannot decide whether a specific fine will be

excessive or punishment so cruel and unusual as to violate the

Eighth Amendment. Thus, such inquiry is better postponed until the

issues are presented in the more concrete circumstances of a

challenge to the Act as applied.

Finding that there are prudential reasons to postpone

adjudication of the Eighth Amendment challenges, we must ask

whether such delay will work a "hardship" on appellants. Although

appellants have not been arrested or convicted under the Act, we

note that a party does not have to risk probable criminal sanctions

in order to bring a justiciable pre-enforcement challenge. Steffel

v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505

(1974). Potential litigants suffer substantial hardship if they

are forced to choose between foregoing lawful activity and risking

substantial legal sanctions. See id. at 462, 94 S.Ct. at 1217 (The

"hapless plaintiff" should not have to risk placing himself

"between the Scylla of intentionally flouting [the] law and the

Charybdis of forgoing what he believes to be constitutionally

protected activity in order to avoid becoming enmeshed in a

criminal proceeding."). Appellants allege that they fear severe

punishment under the Access Act for their constitutionally

protected expressive activities in opposition to abortion.

However, we have already held that the Act does not infringe on
appellants' First Amendment right to free speech; the Act does not

threaten any of their lawful expressive activities. Therefore,

appellants have failed to show that the mere existence of the

Access Act causes them substantial hardship. Moreover, that we

decline to review appellants' Eighth Amendment claims today does

not deny them the opportunity to raise these claims in the future

should a concrete case or controversy arise. See Flowers

Industries v. F.T.C., 849 F.2d 551, 553 (11th Cir.1988) (noting

that, although the plaintiff's claims are not ripe as yet, the

plaintiff will ultimately have the opportunity to raise those

claims as a defense to an FTC enforcement action if enforcement is

ever sought). Thus, we find that appellants' Eighth Amendment

claims are not ripe.

VI. CONCLUSION

For the foregoing reasons we AFFIRM the district court's

dismissal of appellants' claims.13

AFFIRMED.

13
The motion of the National Abortion Federation to
intervene is denied.