Do We Have the Right to Choose How We Talk About the Right to Choose?

The law, lawyers, and the court.
Jan. 15 2014 6:49 PM

Do We Have the Right to Choose How We Talk About the Right to Choose?

Three fascinating new court cases about abortion, contraception, and, also, speech.

The US Supreme Court in Washington, DC, November 6, 2013.
Three abortion-related battles hurtling toward the Supreme Court point to all the fascinating new ways that we as a nation may be as divided about how we talk about abortion and contraception, as we are about abortion and contraception themselves.

Photo by Saul Loeb/AFP/Getty Images

Three new abortion-related battles are hurtling toward the Supreme Court in three very different postures. At first glance, the common thread linking the cases is the reproductive-rights dispute at the heart of each challenge. But there’s another, more interesting theme here as well. In one way or another, each seeks to cast opposition to abortion in speech terms. Today, fighting about how we talk about abortion seems to matter almost as much as fighting about how we administer it.

This morning, the Supreme Court heard McCullen v. Coakley, an appeal challenging a 2007 Massachusetts law creating a 35-foot "bubble" around abortion clinic entrances. The last time the Supreme Court looked at the conflict between the speech rights of pro-life protestors and abortion was in 2000, in Hill v. Colorado. The court held, 6–3, that a law limiting demonstrations around a health care facility was constitutional. The Colorado statute had barred anyone within 100 feet of any clinic entrance from approaching within eight feet of a patient to counsel or advise them without the patient’s consent.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Massachusetts’ “selective exclusion law" goes further, making it a crime for speakers other than clinic "employees or agents ... acting within the scope of their employment" to "enter or remain on a public way or sidewalk" within 35 feet of a clinic. It was enacted following a lethal shooting rampage and years of harassment at two clinics in 1994. The problem, say the protestors, is that by exempting clinic workers—who are allowed to approach the patients—only anti-abortion speech is suppressed. The lead plaintiff in the case is a 77-year-old grandmother who uses a baby stroller as a prop, along with a portable DVD player and images of a fetal ultrasound. The plaintiffs ask the court to ban all buffer zones outside all abortion clinics. A federal appeals court upheld the Massachusetts free speech zone last year.

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Coakley is a tough case for free speech purists, as it certainly appears to suppress only one viewpoint on public sidewalks. The ACLU nevertheless came out in support of the Massachusetts speech bubble, arguing that it’s needed to protect another, competing right: the right to terminate a pregnancy. But the Roberts Court has proven itself far more speech-protective and significantly less choice-protective than the Rehnquist Court that decided Hill. The majority in Hill believed that the right to be left alone and free from unwelcome messages trumped the rights of the protestors to say what they wished. The Roberts Court is more solicitous of the right to be heard, regardless of the preference of the listener to be left alone.

Another case now headed to the high court ostensibly involves the right of a pro-life group to lie in political advertising. Last week, the court agreed to hear a case brought by a national anti-abortion group, the Susan B. Anthony List, that wanted to run political ads in 2010 against then-Rep. Steven Driehaus, a Democrat from Ohio. The group sought to post billboards that read “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Recall that there was an enormous debate raging at the time as to whether the Affordable Care Act in fact allowed for government-funded abortion. The law as written required that abortion be financed by segregated accounts, and federal law prevents taxpayer funds from funding abortions. Still, since we’re all entitled to our own facts these days, this proposition was, and still remains in dispute in some corners.

The signs were never displayed because Driehaus threatened legal action against the billboard owners. He also filed a complaint with the Ohio Elections Commission. The Susan B. Anthony List is challenging Ohio’s false-statement law, which makes it illegal to "post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." A panel of the Ohio Elections Commission found probable cause that SBA either knew its claim was false or recklessly disregarded its accuracy. SBA doesn’t concede that their proposed ads were full of lies. The group is challenging the statute on First Amendment grounds, arguing that its fear of prosecution under the Ohio law chilled it from pursuing its billboard campaign. When Driehaus lost his election bid he dropped his complaint. The federal district court and appeals court then dismissed SBA’s suit, as the group had no standing to sue since it hadn’t suffered any harms. But SBA argued to the Supreme Court that the Ohio false-statement law chills important free speech in the political arena. The ACLU agrees, by the way.

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