“Abortion Exceptionalism” to be reviewed by U.S. Supreme Court

As pro-life sidewalk counselors have experienced for years, there is often one set of rules for free speech at abortion clinics that bears little resemblance to the rules that apply everywhere else. These rules have been springing up all over the country and have unfortunately been upheld by the majority of reviewing courts. Most recently, the First Circuit Court of Appeals upheld Massachusetts’ buffer zone law which was designed to keep pro-life speech activities a minimum of 35 feet away from the entrances to abortion clinics.

This ruling has been appealed to the U.S. Supreme Court and LLDF is preparing to file an amicus brief to highlight the constitutional infirmities of laws such as Massachusetts’ scheme. The brief asserts the interests of LLDF and of Rev. Walter Hoye, the courageous pastor who stood for life in Oakland, California. Rev. Hoye was convicted of violating Oakland’s “bubble” law, and was ultimately sentenced to thirty days in jail for his refusal to agree to stop his speech activities at the clinic. His conviction was later reversed on procedural grounds and Rev. Hoye won his civil challenge against the City of Oakland. In considering Rev. Hoye’s challenge to Oakland’s law, the Ninth Circuit Court of Appeal stopped short of striking down the ordinance on its face despite its obvious violations of the First Amendment.

Unfortunately, state and local governments have felt free to target pro-life speech by pointing to Supreme Court precedent upholding such measures, such as Hill v. Colorado. As these laws have been enforced, however, it has been proven over and over that they are being used as a tool to silence pro-life speech. Such a result cannot be squared with the First Amendment.

LLDF Legal Director Katie Short refers to this type of measure as an “injordinance” because it combines elements of an injunction and an ordinance. From LLDF’s amicus brief:

The injordinance is technically a law in that it is enacted by a legislative body and is enforceable via criminal sanctions against the public at large with certain legislatively-specified exceptions. However, it also resembles an injunction in that its application is pinpointed to a particular site or sites and its expansive restrictions on speech are initially justified by the alleged unlawful conduct of individuals at these particular sites.

The brief goes on to attack the Court’s embrace of “abortion exceptionalism,” the idea that abortion clinics somehow deserve special treatment in the free speech context:

As long as governments are permitted to single out sidewalks around abortion clinics as special enclaves in which speech can be restricted, this Court can expect to see an endless stream of restrictions testing the limits of the First Amendment as well as making a mockery out of that Amendment’s guarantee of governmental neutrality in the marketplace of ideas.

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.