U.S. v. BIRD

No. 03-20884.

401 F.3d 633 (2005)

UNITED STATES of America, Plaintiff-Appellant, v. Frank Lafayette BIRD, Jr., Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

February 28, 2005.


Attorney(s) appearing for the Case

Peter D. Keisler (argued), Mark Bernard Stern, Sushma Soni, U.S. Dept. of Justice, Civ. Div., Washington, DC, for Plaintiff-Appellant.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellee.

Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison, Jennifer K. Brown, NOW Legal Defense & Educ. Fund, New York City, for American Civ. Liberties Union, Center for Reproductive Rights, Nat. Abortion Fed., NOW Legal Defense and Educ. Fund and Planned Parenthood Fed. of America, Amici Curiae.

Arthur B. Mark, III, John H. Findley, Pacific Legal Found., Sacramento, CA, for Pacific Legal Found., Amicus Curiae.

Walter M. Weber, American Center for Law & Justice, Washington, DC, for American Center for Law & Justice, Amicus Curiae.

Before GARZA, DeMOSS and STEWART, Circuit Judges.


EMILIO M. GARZA, Circuit Judge:

In United States v. Bird ("Bird I") this Court held that the Freedom of Access to Clinic Entrances Act (FACE) is a valid exercise of Congress's authority under the Commerce Clause. 124 F.3d 667, 678 (5th Cir.1997). Notwithstanding that holding, the district court in the present case held that under United States v. Morrison,

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