A Welcome, Disappointing Decision

Pro-Lifers rarely win court cases, so it is very gratifying to win one in the Supreme Court. Unfortunately, even in victory, there is disappointment, and a sense that the constitutional rights of pro-life people have been relegated to second-class status.

The case was McCullen v. Coakley, and it arose out of a terrible Massachusetts law that established a 35-foot buffer zone around abortion clinics. Pro-lifers were prohibited from entering that zone, which effectively banned any attempt to speak to women seeking abortions (“sidewalk counseling”) completely. However — and this is crucial — abortion clinic staff were permitted to be in the zone and speak to the women who were approaching the clinic.

The Supreme Court, by a unanimous decision, found that the law was unconstitutional. However, the Court’s unanimity is actually deceiving — although all nine justices agreed that the law was invalid, the Court was actually split 5 to 4 on the reasoning. And the reasoning of the majority is very troubling.

One of the fundamental principles of the First Amendment guarantee of free speech is that the government cannot pass a law that is based on the content of a person’s speech, and that discriminates against one particular point of view. The principle is called “viewpoint neutrality”.  The majority found that the Massachusetts law did not violate the requirement of neutrality, but still found the law unconstitutional because it burdened speech more than was necessary to fulfill the government’s legitimate objectives.

But that reasoning is gravely flawed.  Take it out of the abortion context for a second. Consider the hypothetical case of a law that places a buffer zone around a mine entrance where there is a highly contentious strike taking place. Imagine that the law prohibits striking miners from being in that zone, but allows management employees to be in the zone and speak openly to strike-breaking workers seeking to enter the plant. Can anyone imagine a court upholding such an obviously biased law? Of course not — it would be a clear case of the government taking sides in a strike, and showing favoritism towards one point of view.

The Massachusetts statute is exactly the same, and is clearly not “viewpoint neutral”. It was specifically designed and intended to prosecute and deter only pro-life speakers, while giving pro-abortion speakers free reign to speak and act.

Nevertheless, the majority of the Court, led by the Chief Justice, implausibly concluded that the law was “viewpoint neutral”, because on its face it did not single out pro-life speech. This is absurd — everybody understands very clearly what the goal and effect of this law is.  As Justice Scalia stated in his concurring opinion,

The obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to “protect” prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks.

In short, although the Court unanimously struck down the law, there is only a minority of Justices who believe that pro-lifers deserve the full protection of the Constitution. This follows a disturbing trend in the Supreme Court, in which abortion distorts the Constitution — indeed, abortion corrupts everything it touches.

Again, to quote Justice Scalia:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

So, while it’s good that we’ve won a big case, it’s clear that pro-lifers continue to be treated as second-class citizens in our courts.


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2 Responses to “A Welcome, Disappointing Decision”

  1. Alexis says:

    As always, your analysis is superb, but perhaps there is more hope than we think.

    McCullen‘s test for determining if a law is content-based or content-neutral does have implications for Hill – or more precisely, in overruling Hill.

    Please correct me if I’m wrong, but in Hill, the restriction on oral protest, education, and counseling is considered “content-neutral” even if the content of the statements is examined. Yet in McCullen, the restriction on oral protest, education, and counseling would be considered “content-based” if the content of the statements is examined by “enforcement authorities.” In other words, in Hill, the EXAMINATION of content does NOT make a restriction content-based, but in McCullen, the EXAMINATION of content by ENFORCEMENT AUTHORITIES would make a restriction content-based.

    Hypothetically, I stand 25 feet outside of an abortion clinic and I decide to offer counseling on alternative options to abortion. Because I am violating the 35 foot buffer zone, I am asked to leave by an employee. I choose not to leave and the employee calls the police. The police, then, would be forced to examine the content of my speech. Without an examination, how would they know if I’m just having a casual conversation, discussing another controversial matter, reciting a death threat, or offering counseling? If I’m just striking up a casual conversation, I’m permitted to be less than 25 feet from the abortion clinic. Yet in doing so, the police (i.e., enforcement authorities) would be examining the content of my speech and would hence be rendering the restriction content-based. And if the restriction is content-based, it has the potential to be overturned.

    Therefore, in Hill, if enforcement authorities are engaging in examinations of content, the restriction on oral protest, education, and counseling would violate the standard of content-neutrality. Let’s be honest here, I can’t imagine enforcement authorities NOT engaging in some form of examination of content.

  2. Ed Mechmann says:

    You’re absolutely correct — there’s no way to enforce the law without somebody in authority evaluating the content of your speech. That’s yet another reason that the law is unconstitutional.