Posted by: bridget | 3 December 2007

Freedom? What’s That?

A new Massachusetts law requires protestors to stand at least 35 feet from the entrances to abortion clinics. Under the old law, they were required to stand 18 feet away, but could enter the zone if permitted to by the patients.  Passer-by and pro-choice advocates are permitted in the 35-foot zone; protestors (however peaceful) are not.  Pro-abortion advocates argue that the restrictions are necessary to stop someone like John Salvo, who actually entered a clinic in 1994 and opened fire. 

In order to meet Constitutional muster, a restriction on free speech must be narrowly tailored to meet a compelling state interest.  As a matter of common sense, there is little point making restrictions based on something that one person did thirteen years ago that would not be stopped by the proposed law.  The asserted compelling state interest is presumably to allow women access to abortion clinics:

Some of the more contentious scenes outside the Planned Parenthood clinic in Allston, officials there say, have occurred on the second Saturday of each month, when abortion opponents hold a special prayer vigil there, and the crowd of protesters can grow to 50 or 100.

Ooohhh… prayer vigils!  Scary and wild

This law is hardly narrowly tailored to meet this interest, especially considering that the alleged bad behaviour is already illegal.  Abortion advocates claim that protestors block entrances to clinics.  Well, call the police.  They claim that protestors make videotapes of people’s cars and license plates (although that information is practically useless; many people don’t even know their own license plates, let alone those of their friends and extended family); there is little stopping the clinic owners from videoing the videographers and using that information if the women are subject to later harassment.  Harassment is already illegal.  Free speech is not, nor should it be.  There is little sense in banning the latter because one is too lazy to avoid prosecuting the former. 

Sidewalks are quintessential public forums – the most sacrosanct of places for debate and discussion.  The Court frowns upon non-content neutral restrictions; this one, which permits pro-abortion advocates inside the zone but forbids pro-life advocates the same, is certainly not content-neutral. 

The Court’s reasoning in Hill v. Colorado is internally inconsistent.  It claims, in asserting a compelling state interest, that pregnant women have a right to be free from unwanted speech that would cause trauma.  The only rational way to read this element is to be free from pro-life speech; pro-choice speech would hardly traumatise her.  The Court then declares the restriction to be content-neutral, as it prescribes a place of protest, not the elements therein (distinguish the Massachusetts regulation), and states that the ban applies equally to all opinions.  It strains logic to state that a ban is enacted because pro-life speech is fantastically traumatising, but that the ban is content-neutral. 

Obviously, pro-choice advocates are distressed at the continued opposition to their political position and the continued opposition to abortion law.  There is certainly a basic civil right to try to enact the laws that one prefers to have, and to enforce them (instead of allowing them to be a dead letter) once so enacted; however, there is no right – legal, philsophical, or moral – to forbid others from protesting the enactment and enforcement of that law.  You have abortion on demand; that doesn’t mean we have to be happy about it.



  1. What I find most distressing about laws like this one is that they assume women are frail, airy things, who should not be made to bear speech that makes them profoundly uncomfortable. This is a pretty stupid argument, but it is especially stupid in the context of abortion. The most popular forms of pro-choice argument are built around the idea that women ought to enjoy autonomy of a certain form because they are not wards of the state.

    It is a little inconsistent to claim that women should enjoy enough autonomy to make a choice, but are too wilting to withstand public disagreement with the choice they make.

    I don’t believe women are glass-blown swans. I think they are free citizens of a republic in which not everyone agrees about topics of importance. Shouting at people on the public sidewalks is surely rude; of course, so are racist, anti-semitic speeches. And yet:

    “Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”

    Terminiello v. City of Chicago, 337 U.S. 1 (1949) (opinion by Douglas, J.).

  2. Ian,

    Great point. My post was long enough, so I didn’t want to go on a feminist tirade of “We need the State of Massachusetts to protect us from those mean people with Bibles while we make a big, adult choice about our bodies.” ;)

    Excellent point re: racist/anti-Semitic speech.

    We’ve seen an odd shift. Under the original conception of Roe, the State lacked a compelling state interest in protecting fetal life. (Presumably, if a state could assert such an interest – see Justice O’Connor’s later comment that “Roe is on a collision course with itself” – it could ban abortion.) Now we see that not only does a state not have a compelling interest in protecting fetal life, but there is a compelling state interest in allowing access to abortion, enforceable not just against the State but against the First Amendment rights of citizens.

    Isn’t that kind of like saying, “There is no compelling state interest in banning chocolate*, therefore, there is a compelling state interest in insuring access to it, at the expense of the fundamental rights of your fellow citizens”?

    *amended to reflect something that is certainly not within the text of the Constitution

  3. Excellent points. I find it odd that they would use Salvo as their basis for the change. Do they seriously think that an extra 17′ will stop a nut like that? Pro-lifers dislike people like him more than pro-choicers, because not only is he destructive to human beings but to our cause.

  4. SIGH!

    Neil, Neil. These are the same people who think that a ban on guns will stop people from shooting each other. You know, had only that crazed, deranged, psychotic killer followed the gun law, people wouldn’t be dead. The laws against shooting other people would work perfectly if there were regulations heaped on top of them.

    (Oddly, these are not the people who think that bans on homosexual behaviour will stop homosexual behaviour, or that your parents telling you to please not shag anyone until you are out of high school is about as effectual as attempting to bail water out of the Titanic with an eyedropper. I’ve yet to figure out when people think that restrictions will work, and when they think they are a waste of time, but the r-squared value seems to be quite high when the subjects are, “something agree with,” and “something in disagreement with,” respectively…. crazy libertarian that I am, this is why I’m not in favour of laws. ;) )

    Do I have to explain everything to you?

    As for Salvo: we’ll claim him if they claim Stalin. ;) (Whoops. Cranky, overworked pachyderm….)

  5. Musings….

    What I find most distressing about laws like this one is that they assume women are frail, airy things, who should not be made to bear speech that makes them profoundly uncomfortable.

    Very true.

    Now, is the speech profoundly uncomfortable? Or is it mildly uncomfortable; one other tenet of the feminist/pro-choice belief system being that women have thought through their decision (including what they are doing to human life) and have, after weighing all the factors, decided on this course of action? If it is truly an adult choice, why should pro-life rhetoric be uncomfortable?

    As a feminist, I’m deeply uncomfortable with paternalistic behaviour… from both sides. I really, really dislike the huge signs with aborted fetuses on them; the women are well aware of what they are doing, and, pragmatically, the results of any surgery are going to be pretty gory – the “it’s gory, so don’t do it” argument is total b.s.. It insults the intelligence of women to assume that they would see a picture and make a different decision – which, IMHO, neither justifies the picture-holders nor the denial of their rights.

    (Side note: when I was 15 or 16, I went out to fetch Dunkin Donuts. I walked back, carrying three cups of coffee and a bag full of doughnuts and muffins, only to be accosted by some nutjob lady. She started screaming at me, asking me if I had “just come out of there.” (Yeah, because Planned Parenthood always gives you iced coffee for the whole family after an abortion…??) She then got very personal and strident… I was like, look, lady, the fact that the Planned Parenthood is inconveniently situated between Dunkin Donuts and my mom’s place doesn’t make me a slut – I’m a huge prude who likes to eat in the morning, so leave me alone.

    But hey, it’s America, so she has a Constitutional right to make pro-lifers look bad.

    There are, however, people who are against abortion and are willing to hand out information about centers which will help women with pregnancy testing, prenatal care, the legal issues surrounding pregnancy, adoption, childbirth, and the like. Any reasonable definition of “choice,” if it is to be more than a euphemism for “abortion,” would include such dialogue. I find it very upsetting that the pro-choice movement is so adamant about “protecting choice” that they are, paternalistically, unwilling to let women hear anything that may tip the scales against abortion.

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