Posts Tagged ‘Clinic Access Laws’

A Welcome, Disappointing Decision

Monday, June 30th, 2014

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.

 

The Power of the Truth

Friday, May 4th, 2012

On April 30, I attended the public meeting of the Westchester Board of Legislators, to present the statement of the Archdiocese in opposition of the “clinic access” bill that would unfairly restrict the free speech rights of pro-life witnesses outside of abortion clinics.

That statement reads as follows:

A bill is now pending before the Westchester Board of Legislators, which will violate the Constitutional rights of those who give pro-life witness outside abortion clinics.

We urgently call upon all members of the Board to oppose this unjust bill.

This bill is premised upon the false assumption that there is a significant problem with disorder outside of abortion clinics. Actually, law-abiding citizens give peaceful and prayerful pro-life witness on a regular basis, offering valuable information to women approaching the clinics without violating any of the currently-existing federal and state laws regarding access to abortion clinics. Despite such a clear record of respect for the law, this legislation is designed to prevent pro-life advocates from speaking freely merely because their speech is considered unwelcome by some powerful interest groups that favor and profit from abortion.

This legislation is fundamentally unfair to ordinary citizens who wish to express their Constitutional rights to free speech and the free exercise of religion. It is vague and ambiguous so that ordinary people could not possibly know what kinds of behavior or speech are prohibited.  Ultimately, it is unfair to women who have a right to information before they make their decision
as to whether or not to have an abortion.

This legislation does a disservice to these women, to their unborn children, and to society as a whole, and should therefore be rejected.

I have been present at many legislative hearings, and I generally have low expectations.  We have to bear in mind that most legislative hearings are not like court proceedings — it’s not like arguing to a neutral jury or a judge who’s open to hearing both sides.  The legislators have largely made up their minds already.  But in some cases, hearings are a good place for the public airing of reasons for and against legislation, and some legislators may actually listen to what is being said.  Some of them are looking for a reason to take a position on a bill, and the hearing may give them that hook to hang their hat on.  I have been to several hearings where there was good interaction between legislators and witnesses.  Not many, but a few.

In a way, it’s not so much what is said by the witnesses, but their presence and witness — so that the hearing becomes an indicator to the legislators of the depth of feeling about bills and a gauge of the political mood of the populace.

In that light, the hearing was fairly typical of what I’ve experienced.  The public witness of so many pro-lifers was a good sign — it sent a message to our allies on the Board that they have a lot of support, and hopefully gave some of the wavering members some reason to lean our way.  Having so many “regular people” on our side — as opposed to the largely institutional witnesses on the other side (e.g., employees and activists from Planned Parenthood) — was a very good thing.  I think that the legislators are more impressed when lots of people testify who don’t make a living out of the issue at hand.  Five voters count for a lot more than one “spokesman”.

The most powerful testimony was given by a young African-American woman, who spoke of her own abortions, and how she has come to regret them.  She has now dedicated herself to going to abortion clinics, and giving sidewalk counseling to other women contemplating abortion, to make sure that they understand that they have a choice.

But there were so many others, who stood outside on long lines in the cold, awaiting an opportunity to come into the legislative chamber.  The hearing went on until after midnight, and many stayed until the wee hours to present their own testimony.

The struggle against this bill is not over.  A final vote will be taken on May 7.  We are hoping that the County Executive will veto the bill, and that there will be enough votes on the Board to sustain the veto.  Residents of Westchester should contact their legislators — even if they’ve done so already, they should do it again, and again, and again.  To find the name of your legislator, go here.  Email and other contact information can be found here. The most effective advocacy comes from sustained contact between constituents and their legislators over a long period of time — visits, calls, emails, etc.

So often, we feel powerless in the face of the large, powerful and rich forces that are arrayed against us.

But the power of the truth, and the witness of those who are willing to testify to it with love, can never be underestimated.

Another Attempt to Silence Pro-Lifers

Tuesday, December 13th, 2011

A bill is pending before the Westchester County Board of Legislators that is designed to silence pro-life witness outside of abortion clinics.  It is similar to the bill that was passed by New York City a few years ago, about which I wrote here and here.  The bill hasn’t yet been voted on, but it remains a significant risk.

Here is the statement that I submitted to the Board, at its hearing last night:

I submit this statement in opposition to the proposed legislation concerning access to so-called “reproductive health care facilities”.

First, the proposed changes to the law are unnecessary.  There is no evidence that there is a substantial problem that needs to be addressed by this bill.  According to statistics provided by the New York State Division of Criminal Justice Services, there has been only one arrest in the entire state since 2000 for violations of the State clinic access law, and no criminal convictions. There is no need to strengthen laws that are never used, since there is no problem that needs to be addressed.

The second reason for our opposition to this bill is that  it is unconstitutionally overbroad and vague.  It is a established principle of constitutional law that any attempted regulation of speech be content-neutral, and narrowly tailored to meet a compelling state interest.  This is particularly true when the speech occurs on a public sidewalk, which has been described by the Supreme Court as a “public forum” where citizens generally have a First Amendment right to speak and gather together.  This bill fails to satisfy this standard, and creates a significant risk that people would be prosecuted or sued for the mere exercise of their right to free speech and assembly.

This bill is not neutral, because it specifically targets the conduct and speech of those who oppose abortion.  It is also vague and ambiguous, so that persons could not possibly know what kinds of behavior or speech are prohibited.  One of the provisions would make it a crime to “interfere” with the operations of “reproductive health care facilities”.  Yet that term is undefined and utterly subjective in meaning, and would thus chill the free speech rights of those who wish to speak to women seeking to enter those facilities.

Even if one were to ignore the lack of any history of problems at these facilities and assume that there was a “compelling state interest” here, this bill cannot be fairly described as “narrowly tailored”.  The bill would create a zone that goes far beyond any statute that has been approved by the courts.  No law has included such areas as public parking lots and bus stops that are within 200 feet of a facility, and created a large “bubble zone” around the “spaces” — whatever that term means — between those locations and the facility.  There can be no justification for such a broad zone where the free speech rights of citizens will be restricted.

This unnecessary bill is clearly aimed at suppressing speech, because that speech is disfavored by the owners and operators of abortion clinics.  This discriminatory legislation should be rejected.