Monday, January 21, 2008
By Wendy Kaminer
Last year, Governor Patrick signed a law mandating expanded no speech and no loitering zones around the entrances to abortion clinics; members of the general public are now prohibited from approaching within 35 feet of clinics unless they're entering or exiting or simply passing by. Last week, the Alliance Defense Fund, (ADF) a conservative advocacy group, challenged this law in federal district court, arguing that it’s vague and vests too much discretion in police officers, encouraging discriminatory enforcement, and that it privatizes a public sidewalk and public forum, banning peaceful anti-abortion protests where they are most likely to matter. The complaint alleges:
"Plaintiffs desire to orally communicate with clinic clients and passersby from a distance in which they can speak in a normal conversational tone and make eye contact. Plaintiffs wish to avoid raising their voices or speaking from long distances. Because in most instances they cannot identify clinic clients until they actually approach the reproductive health care facility, Plaintiffs and other pro-life advocates must station themselves on the public ways near the path of pedestrians and in close proximity to facility entrances and driveways in order to effectively communicate their message. On many occasions, clinic clients and/or their companions willingly receive such oral communications."
Reproductive choice advocates are unlikely to be moved by these concerns, especially here Massachusetts, where, in 1994, an anti-abortion gunman killed two people and wounded five in an attack on two Boston area clinics. Liberals are unlikely to look favorably upon any challenge mounted by ADF, a right wing Christian group, dedicated to “defending the right to hear and speak the Truth through strategy, training, funding, and litigation.” But civil libertarians should support ADF’s challenge to the buffer zone, no matter how much they sympathize with the concerns of abortion rights advocates. (The ACLU of Massachusetts officially opposes the law.)
As I wrote here last May, (bear with me while I repeat myself a bit,) the 35-foot buffer zone doesn’t simply regulate or attempt to regulate harassment of people entering or leaving clinics. It unconstitutionally outlaws political speech, imposing prior restraints on peaceful, even silent protests within 35 feet of clinic entrances and driveways – where the protests might be most effective.
This is an overly simple solution to a complicated problem – the reported difficulties of enforcing the previous law (which established a 6 foot floating bubble zone around people entering and leaving clinics) and the tendency of some protesters to harass individual patients and providers. But the abusive conduct of some protesters does not give the state power to punish all protesters. The prohibition on prior restraint of speech is essentially a presumption of innocence: all speech must be proven guilty, or unprotected by the First Amendment, before it can be restricted.
If drafted with respect for the Constitution, and basic civil liberties, prohibitions on speech are naturally and necessarily difficult to enforce. Obscenity laws, for example, can defy enforcement, to the dismay of some and delight of others. It would be easier to punish obscenity if we simply created a sort of buffer zone around discussions of sex. It’s easy to police harassment of delegates to a political convention when we create buffer zones around entrances to convention halls, corralling protesters into "free speech" zones."
Protests around abortion clinics are “different,” many liberal pro-choice activists argue, because they upset and intimidate clinic workers and, especially, women seeking abortions, who may easily traumatized. Perhaps. But we do not have a right not to be upset, even when seeking medical care. We don’t even have right not to be traumatized. Your right to speak is not contingent on my willingness to hear you, or on my emotional fortitude.
This may seem hard-hearted, but the preservation of liberty requires us to be hard-headed: We don’t have a right to be protected from the emotional turmoil occasioned by speech; we do have a right to inflict it.
Tuesday, January 08, 2008
NBC reports that a group of abortion protesters disrupted a Barack Obama rally in New Hampshire. Though the police came to usher the protesters out, Obama’s response seems to suggest that he understands the old notion of disagreeing with you but fighting for your right to say it:
“Let me just say this though. Some people got organized to do that [protest]. That’s part of the American tradition we’re proud of. And that’s hard too, standing in the midst of people who disagree with you and letting your voice be heard.” (emphasis added)
As a former president of the Harvard Law Review and then lecturer in constitutional law at the University of Chicago Law School, Obama surely has an understanding of what the First Amendment entails. If he gets the nomination, it will be interesting to see his views on civil liberties come out.
Via Reality-Based Community
Monday, May 28, 2007
Even free speech absolutists ought to sympathize with abortion providers and patients who want to prohibit anti-abortion protests in close proximity to clinics -- especially in Massachusetts. In 1994, when John Salvi shot up two local reproductive health care clinics, killing two people and wounding five, he left more than grief and carnage in his wake; he also left behind fear and a sense of vulnerability among people who continue to provide and seek abortions today.
That fear has not been sufficiently alleviated by the 18 foot buffer zone around clinics mandated by the Massachusetts legislature shortly after Salvi’s rampage. The law also provides for a 6 foot “bubble” around individuals within the 18 foot buffer zone: you may not knowingly approach within 6 feet of anyone within 18 feet of a clinic entrance without her consent. This law has been in effect since 2000; the Supreme Court has declined to hear an appeal from a federal appeals court decision that rejected a constitutional challenge to it.
Pro-choice advocates and law enforcement officials complain that the buffer zone has proved difficult to enforce. NARAL alleges that these violations by protesters are common:
“Dressing up as Boston Police officers and asking for patients' names and contact information
. Blocking access to the front door
. Consistent screaming at patients/employees inside the "bubble zone.” Touching arms, shoulders, or backs of patients or employees
. Standing in front of cars and/or the keypad to block patient/employee access to the garage
. Photographing and filming into patient/employee cars
. Throwing anti-choice literature and pamphlets in cars entering the garage.”
So with the support of Governor Patrick and Attorney General Coakley, nearly 100 members of the Massachusetts legislature are co-sponsoring a law that would prohibit anyone from protesting, or simply standing around, within 35 feet of clinic entrances. At a hearing on the bill last month, the Attorney General and other law enforcement officials offered public policy arguments in support of the bill; survivors of the ’94 shootings, including the brother of Shannon Lowney, the Planned Parenthood receptionist killed by Salvi, made a strong emotional appeal for its passage.
Then, I was the bad guy who testified against it, on behalf of the Defending Dissent Foundation, a civil liberties group dedicated to protecting the right to protest and dissent from government interference. Here’s what I said:
I appreciate the desire to alleviate harassment of patients and personnel at abortion clinics. But the proposed 35 foot buffer zone wouldn’t simply regulate or attempt to regulate harassment; it would outlaw political speech. The case against the bill is simple: it would impose a prior restraint on speech, prohibiting peaceful, even silent protests within 35 feet of clinic entrances and driveways – where the protests might be most effective. It would also effectively impose different restrictions on protesters at different clinics, given their different physical configurations.
This is a overly simple solution to a complicated problem – the reported difficulties of enforcing the current law and the tendency of some protesters to engage not just in protests but in harassment of individual patients and providers. But laws restricting speech should be difficult to enforce; if drawn with respect for the First Amendment and prohibitions on prior restraints, they are naturally difficult to enforce. Obscenity laws, for example, can defy enforcement, to the dismay of some and delight of others. It would be easier to punish obscenity if we simply created a sort of buffer zone around discussions of sex. It’s easy to police harassment of delegates to a political convention when we create buffer zones around entrances to convention halls, corralling protesters into "free speech" zones. But it should never be so easy to restrict political speech.
I understand the anger at protesters who abuse their rights. I understand the impulse to protect patients and clinicians from being intimidated or upset as well as criminally harassed. But protecting people from intimidation or emotional turmoil is no justification for restricting speech. We don’t have a right not to be upset, even when seeking medical care. We do have a right to protest state sanctioned medical procedures. Imagine how vigorously pro-choice supporters would protest outside clinics that engaged in mandatory sterilization, if it were legally permissible, as it was once, in the early 20th century. Would you pass a law to restrict those protests, even if clinicians felt intimidated or upset by them?
Protesters sometime abuse their rights to speak, of course; virtually all rights are bound to be abused on occasion, just as legislative power is bound to be abused – sometimes with the best intentions. Please don’t let abuses of rights by some individuals persuade you to deny those rights to all.
Finally, this bill is, at the very least, arguably unconstitutional. The U.S. Supreme Court has upheld buffer zones around clinic entrances, so long as they did not include categorical prohibitions on all protests within the zone -- the sort of prohibition included in this bill. In 2000, when the Court upheld a Colorado statute imposing a 100 foot buffer zone around clinic entrances, it stressed that the law “allows a protester to stand still while a person moving towards or away from a health care facility walks past her.” The law only prohibited “knowingly approaching” within 8 feet of another person without consent. In other words, the Court allowed significant restrictions on First Amendment rights in the Colorado buffer zone case, but it did not allow the blanket prohibition on speech included in this bill. It would be a sad day for civil liberty if the Massachusetts legislature became less protective of individual rights than the U.S. Supreme Court.
Friday, April 20, 2007
At the risk of being considered impolite, I can’t help but add that every one of the five Justices who upheld the ban on a second trimester abortion procedure (in defiance of expert medical opinion) are Catholic. Four are conservative Catholics. I expect that some consider the mere mention of this obvious but salient fact an example of religious bigotry, but advocates of more religion in government who praise the influence of sectarian religious ideals on public policy should be prepared to hear it questioned. And, I’m not suggesting that judges should, or could, jettison their religious convictions on appointment to the bench. I’m pointing out the need for religious diversity in the judiciary, given the inevitable influence of religious beliefs on individual morality and opinion. Isn’t it obvious that in a pluralistic country, law should not reflect and the Supreme Court should not be dominated by one sectarian point of view?
Wendy Kaminer is quite right that one of the most prominent features of the Supreme Court decision in Gonzales v. Carhart, upholding, for the first time, a ban on an abortion procedure that does not make an exception for the health of the woman, is the Court’s arrogant assumption that it need not credit the medical judgments of experts in the field. Instead, the majority of the justices cynically lean on either quacks or the justices’ (and the Congress’s) own sense of good medical practice.
This is not the first time, alas, that the court has allowed Congress or federal bureaucrats and law enforcement agents to intrude into an area that should be left to the medical profession. In a 2005 decision, the court ruled that the federal government can still punish possession of marijuana in the eleven states that have eliminated sanctions for its use for medicinal purposes, thereby effectively over-riding professional medical opinion in a large part of the country.
And for most of the 20th century and continuing today, the Court has allowed overzealous anti-drug bureaucrats of the Drug Enforcement Agency to harass and prosecute physicians who treat patients suffering from chronic, debilitating pain.” In U.S. v. Moore (1975), the court reaffirmed the federal government’s power to criminally punish doctors who administer painkilling opiates, ruling that physicians “can be prosecuted when their activities fall outside the usual course of professional practice.” The vagueness of this wording gave the drug warriors considerable wiggle room and unsurprisingly led to a series of high-profile cases in which doctors were treated no differently than street corner drug dealers because they administered pain-killing narcotics in quantities and under circumstances that contradicted the “medical judgment” of federal drug agents and bureaucrats. A chilling effect has ensued, in which doctors frequently underprescribe painkilling medicine out of fear of losing their livelihoods and reputations.
And so it is not so surprising to see the justices kick around the medical profession (and its patients) as if they, or Congress, or the President, somehow know better. But what is quite dismaying is to see a majority of the justices take baby steps (you’ll pardon the double entendre) to begin a return to a darker age, when the state was able to dictate when a pregnant woman must continue the process and produce a baby for the state – a baby that the state will be shockingly indifferent to once it’s born. (As Rep. Barney Frank has acidly observed, the pro-life crowd consists largely of people who believe that life begins at conception but ends at birth.)
It is also useful to note that in this case, the court arriving at such an unwise (and, it must be said, unconstitutional, no matter what five justices claim) result was dealing not with some state legislature’s attempt to restrict abortion within its own benighted boundaries, but with a congressional statute that will impose a uniform tyranny on women throughout the land. This is not one-fiftieth of a disaster for liberty, but a 100% disaster, crimping liberty from sea to shining sea.
My former law partner (now federal judge) Nancy Gertner, who did a significant amount of important pro-choice litigation back in the 1970s and 80s, used to have a poster in her office that said: “If men could get pregnant, abortion would be a sacrament, not a crime.” Amen, brothers and sisters.
Thursday, April 19, 2007
You’d think that a majority of Supreme Court Justices would be content with having climbed or kissed their way to the top of the judicial hierarchy, but, no -- they want to rule the medical profession too. Yesterday, in upholding a congressional ban on a particular abortion procedure, regardless of the ban’s effect on women’s health, five Justices substituted their judgments about medical necessities for the judgment of the American College of Obstetricians and Gynecologists.
Gonzales v Carhart involved the constitutionality of a ban on intact dilations and extractions (deceptively labeled partial birth abortions,) which are occasionally used in the second trimester. (According to rough estimates, a few thousand of these procedures are performed annually.) The ban does not include an exception for preserving a woman’s health, and in upholding it, the Court ignored an extensive record of testimony by medical specialists confirming the occasional medical necessity of the banned procedure. Pretending respect for precedent, the majority did not explicitly overrule Roe v Wade (that would have been impolitic,) but it did make this landmark guarantee of women’s right partly irrelevant by eviscerating its basic principles. As the only woman on the Court, Justice Ginsburg, stated, “for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”
This partial, de facto overruling of Roe was distressing but no surprise. Abortion rights advocates feared or knew it was coming. In 2000, the Court had invalidated a very similar ban enacted by the state of Nebraska, but then, last year, the deeply, socially conservative Samuel Alito replaced the moderately pro-choice Sandra Day O’Connor.
In 2003, Congress responded to the ruling against Nebraska’s abortion ban by passing a very similar federal ban, including an untruthful declaration that the banned procedure was never medically necessary, according to the medical consensus. Justice Kennedy acknowledged that this declaration was factually inaccurate but held that there was medical uncertainty about the procedure's necessity. In her angrily incisive dissent, Justice Ginsburg, suggested that even this “uncertainty” was manufactured: the doctors who testified that the procedures were never necessary lacked the expertise of the specialists who described the procedures as the safest alternatives for women in some cases.
But assume, for the sake of argument, that qualified doctors disagree about the need for resort to intact D & E’s. Who should decide what procedures are medically necessary when doctors disagree? Remarkably, the Court held that Congress is the decider, at least when a woman’s right to terminate a pregnancy is at stake.
It’s hard to imagine the Court allowing Congress to override the opinion of medical specialists about treatments for heart attacks or prostate cancer, but the Court has no apparent animus toward oncologists and cardiologists. As Justice Ginsburg noted, however, it has obvious disdain for “obstetricians and gynecologists and surgeons who perform abortions,” referring to them “by the perjorative label ‘abortion doctor.’” (Alongside Kennedy’s measured legal rhetoric, there’s the language of the street.)
Writing for the majority, Justice Kennedy also made clear its low opinion of women, whom Kennedy and his four brethren treat like children whose legal choices may be limited for their own good. “ (S)ome women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of self-esteem can follow,” Kennedy gratuitously declared (in language revealing his hostility toward all forms of abortion,) even while admitting that no reliable evidence supported this assertion. Kennedy then speculates that women’s presumed regret about abortions are intensified if they subsequently learn that their doctors had performed intact D & E’s. Lacking any factual support for this assertion, he simply describes it as “self-evident.”
Of course, as Justice Ginsburg points out, doctors could be required to describe the procedures they intend to use, in order to help insure that women make informed decisions. Kennedy does not consider that option, assuming, instead, that women seeking abortions are so fragile emotionally that doctors will not regale them with graphic details.
All this reflects a strikingly anachronististic, visceral view of women as weak, uncertain creatures whom the state is obliged to protect, sometimes from their own misjudgments. Justice Ginsburg’s apparent anguish over the majority’s ruling may reflect that fact it reverts to “shibboleths” about feminine frailty that she devoted so much of her career to combating. Chief Justice John Roberts presented himself as a rational, objective, highly sophisticated legal jurist at his confirmation hearing, but he seems content to preside over a primitive Court.
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