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.

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.

The main question before the court is whether Susan B. Anthony List has standing to pursue its lawsuit. But the court could possibly get to the issue of false campaign speech, and the case has thus been widely characterized as a plea from a pro-life group to be allowed to make false or at least deeply ambiguous statements in their political ads.

The third case, only tangentially involving pro-life speech, comes from another abortion opponent. On New Year’s Eve, Justice Sonia Sotomayor issued an injunction on behalf of the Little Sisters of the Poor Home for the Aged, Catholic nuns who operate nursing homes in Colorado and Maryland. The Little Sisters wish to be exempt from the contraception mandate under the Affordable Care Act, arguing that they face an unconstitutional religious burden by having to sign the form to opt out of the obligation. Their alternative was to face massive fines. Justice Sotomayor granted them a brief injunction and we wait to see what happens next.

The media frenzy around the injunction obscured the fact that the suit is in its earliest days, and—at least according to the inexhaustible Marty Lederman at Balkinization—the Little Sisters are not the most likely plaintiffs to prevail in their challenge to the ACA’s contraception mandate. An enormous amount of pixels have already been spilled around the merits of the Little Sisters’ claim. The nuns—who, to be clear, are already exempt from the mandate—claim that the act of filling out the self-certification form, showing them to be an objecting nonprofit religious organization, violates their religion. That’s because, in their view, the act of submitting the form would "direct" the third-party administrator of their health-insurance plan to provide contraception coverage to the Little Sisters’ employees. In simplest terms, they would trigger a sin by signing the certification. (In this case the third party administrator is also exempt, which makes this a trickier case.)

One element at play in the nuns’ and other Catholic institutions’ objection to a contraceptive mandate is the religious concept of “scandal”—Thomas Aquinas’ notion of “something less rightly done or said, that occasions another's spiritual downfall.” There is a religious requirement to speak and act in ways that encourage moral uprightness in others and discourage them from sinning. Some religious objectors contend that merely filling out the form violates the “scandal” doctrine. In other words, an important element undergirding these nonprofit exemption cases is a speech act of completing the exemption form.

Whether the act of opting out of the coverage requirement acts as a “trigger” for someone else to provide the religiously objectionable coverage or a release from a government obligation to provide it is almost a metaphysical inquiry, one that’s best left to the courts, or the angels. But it’s fascinating to note that the controversy surrounds the signing of a simple document that merely affirms, “I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” That statement is a true fact, yet the act of signing it triggers a sin.

These three cases point up all the fascinating new ways that as a nation, we may be as divided about how we talk about abortion and contraception as we are about abortion and contraception themselves. The Massachusetts plaintiffs seek to curb government restrictions to counsel and pray for women seeking to terminate their pregnancies, even when that speech has been known to tip over into harassment and threats of violence. The Susan B. Anthony List seeks to stop government entities from adjudicating whether their political speech about abortion is false or misleading. And the Little Sisters and their colleagues at various Catholic nonprofits seek to be exempted from the government’s requirement that they opt out in writing from the birth control mandate. These are objections to the government’s attempt to limit the places and ways they may talk about abortion, the words they may use to talk about abortion, or to force them to affirm the words on a page that, in their view, may trigger an abortion.

That three anti-abortion groups are simultaneously petitioning the court for the right to talk to abortion patients who don’t want to hear them; to produce anti-abortion ads that may not be true; and to be exempt from the duty to affirm on paper that they object to abortion, speaks volumes. This is no longer just about where we are in this country on the right to choose, it’s also about how we choose to talk to each other about choice itself.