Another Casualty of “Our Whatever-It-Takes” Pro-abortion Jurisprudence

Mike Millen

Scalia: “Does the deck seem stacked? You bet.”

For those of us who believe that the state has a higher interest in protecting the lives of the unborn than it does in collaborating with moms who desire to abort their ill-timed or inconvenient children, awaiting a decision from our current Supreme Court is much like watching “Godzilla Versus The Smog Monster”: you know the dialogue is going to be bad and that there will be dismembered victims in the aftermath, but you can’t help but open one eye in wonder as to how far the authors will go in shocking us.

The Supreme Court’s June 28, 2000, decision in Hill v. Colorado deals out this wonderment in spades. Not only did the High Court break faith with numerous free speech precedents, but it did so at the expense of core First Amendment freedoms, namely picketing and leafleting. However, the Court’s disregard for its own prior decisions spells trouble for more than just the First Amendment. The Court’s decision in Hill, combined with its decision the same day striking down Nebraska’s ban on partial birth abortion, sent a chilling message to pro-lifers: we will find or create whatever legal standard best serves the goal of uninhibited access to abortion.

The only consolation of the Hill decision is that it arrived with a built in error detector in the form of Justice Antonin Scalia’s blistering dissent joined in by Justice Thomas. Thus, the quickest way to study what the majority’s opinion is, is to read what Justice Scalia says it isn’t. A quick bit of background: Colorado was concerned about “preventing the willful obstruction of a person’s access to medical counseling and treatment at a health care facility,” so it passed Colo. Rev. Stat. §18-9- 122. Section 2 of the act imposes criminal and civil liability on a person who “knowingly obstructs, detains, hinders, impedes, or blocks another person’s entry to or exit from a health care facility.” Such language is not surprising given that the Attorney General of Colorado had stated in his brief that “[e]ach provision of the statute was chosen to precisely address crowding and physical intimidation: conduct shown to impede access, endanger safety and health, and strangle effective law enforcement.” One would think that the statute’s broad prohibitive language would have been sufficient to enforce the state’s interest.

Not so, however. Section 3 of the act prohibits “approaching” within 8 feet of any person for the purpose of “passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling” such person unless the person gives consent. This restriction applies within 100 feet of any “healthcare facility” in the state of Colorado. This section was challenged by pro-life counselors and upheld by the Court, leading to three questions: (1) Why are the speech restrictions of §3 necessary when §2 took care of the “bad conduct” problem? (2) How can the Court single out “protest, education, and counseling” speech? (3) How can the Court justify a floating 8-foot zone free of uninvited speech on a public sidewalk?[1]

Why Speech Restrictions If Clinic Access was the Problem? As noted above, the Colorado legislature was not trying to protect people from unwelcome speech; rather the legislature justified the statute on the following grounds: “The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another person’s entry to or exit from a health care facility.”

Even the majority understood that there would be a logical problem in restricting leafleting, oral protest, education, or counseling if the only problem to address was physical clinic access. In order to get to the desired end of curtailing peaceful pro-life speech, the Court set the Colorado legislature straight, stating that the legislature’s goal should have been “to protect those who seek medical treatment from the potential physical and emotional harm suffered when an unwelcome individual delivers a message (whatever its content) by physically approaching an individual at close range.”

And presto!—the Court has just made “deliver[ing] a message” a permissible activity to restrict.

Justice Scalia thoughtfully pointed out that, with regard to the state interest being advanced, “there appears to be a bit of a disagreement between the State of Colorado (which should know) and the Court (which is eager to speculate)… We may thus add to the lengthening list of ‘firsts’ generated by this Court’s relentlessly proabortion jurisprudence, the first case in which, in order to sustain a statute, the Court has relied upon a governmental interest not only unasserted by the State, but positively repudiated.” Thus, the answer to the above question (“Why speech restrictions if clinic access is the problem?”) is that speech restrictions make more sense after the Supreme Court changed the goal of the statute.

How can the Court single out “protest, education, and counseling” speech? As Justice Scalia noted in his “happy speech” example, if the Court can restrict “protest, education, and counseling,” then that same reasoning would justify a law which placed restrictions on all speech except that which “conveys a sense of contentment or happiness.” This straightforward argument troubles the majority. In order to extricate themselves from such an Orwellian nightmare of a law which only allows for “happy speech,” the Court resorts to an artificial distinction. It is “most unlikely” that speech falling outside the categories of “protest, education, and counseling” will have negative consequences.

However, it is likely that “protest, education, and counseling” speech brings forth a host of negative consequences, including “the nuisance, the persistent importuning, the following, the dogging, and the implied threat of physical touching that can accompany an unwelcome approach within eight feet of a patient by a person wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill upon her.”

In case you didn’t catch that, the High Court has just stated that all sidewalk counselors are likely to serve as a “threat[ening]” “dogging” “nuisance” when they ask a woman to take a leaflet. One wonders if the Court would consider clinic escorts as lovers of humanity or merely as protectors of the weak. In any case, the answer to the question of how the court could single out “protest, education, and counseling” is that such speech allegedly lends itself to aggressive physical tactics which can cause “potential trauma” for those exposed to “confrontational protests.” Such speech also is the only speech which can touch minds and hearts and consciences, but the Court evidently sees this as a lesser interest than unimpeded access to abortion.

The Court answers the practical “how” question of singling out “protest, education, and counseling” from other speech by assuming that there are only two types of speech in the world: protest, ed. and c. on the one hand, and “social or random conversation” on the other. It’s very simple: only the first type of speech, the type that the First Amendment was intended to protect, can get you thrown in jail under this statute.

Not only was this irony lost on the justices, but they refused to see how difficult it will be to distinguish prot., ed. and c. in real life, stating “it is unlikely that there would often be any need to know exactly what words were spoken in order to determine whether ‘sidewalk counselors’ are engaging in ‘oral protest, education, or counseling’ rather than pure social or random conversation.” In a sense, the justices may be correct that this is not a content-based regulation on speech. Rather than looking to the content, the justices are apparently suggesting that it is sufficient to look at who the speaker is to determine if there is a violation.

It takes only a little more imagination than the majority apparently possesses to think of hundreds of ways for a sidewalk counselor to start a conversation which would be difficult to classify: “Jesus loves you.” “God bless you and your baby” “Isn’t it a great day to be alive?” Protest, education or counseling? Or social conversation? Pity the police officer, the district attorney, the jury or judge who is called upon to parse the words in order to enforce this “content neutral” statute which is “not a regulation of speech.”

How can the Court justify a floating 8-foot zone free of uninvited speech on a public sidewalk?

Under the statute, sidewalk counselors must be given permission to approach someone closer than eight feet. However, Justice Scalia shows how there is no alternative to close sidewalk counseling and takes the majority to task for eliminating what may be the most effective method of pro-life speech.

In a uniquely insightful portrayal, he describes woman-to-woman sidewalk counseling as the actions “of a woman who hopes to forge, in the last moments before another of her sex is to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart. The counselor may wish to walk alongside and to say, sympathetically and as softly as the circumstances allow, something like: ‘My dear, I know what you are going through. I’ve been through it myself.

You’re not alone and you do not have to do this. There are other alternatives.Will you let me help you? May I show you a picture of what your child looks like at this stage of her human development?’” The High Court’s response is to justify the 8-foot zone as a “bright-line prophylactic rule” which by its clarity actually protects speech. In endorsing a “prophylactic approach,” the Court ignores recent decades of First Amendment jurisprudence declaring such approaches to be constitutionally suspect, choosing instead to resurrect dicta from 80-year-old cases which did not even mention the First Amendment.

Worse, the majority actually lectures sidewalk counselors on how eight-foot counseling-free zones will “assist the speakers’ efforts to communicate their messages. The statute might encourage the most aggressive and vociferous protesters to moderate their confrontational and harassing conduct, and thereby make it easier for thoughtful and law-abiding sidewalk counselors like petitioners to make themselves heard.” In other words, sidewalk counselors should be grateful that ill-behaved pro-lifers won’t approach women; now sidewalk counselors have a better chance of shouting their tender message from eight feet away because the zone is empty of other pro-lifers (though not of pro-abortion escorts). Thus the court justifies the eight foot restriction zone by stating that broad restrictions help everyone and that this one is particularly helpful to sidewalk counselors. Justice Scalia laments the eight foot rule as being “an utter absurdity, which is no obstacle in abortion cases.”

As has been noted before, in our culture’s war to turn pro-life protesting into a malum per se, the fallout should be felt by all who value their free speech rights. As Justice Scalia said regarding the High Court’s denial of certiorari in an earlier case involving anti-abortion protesters, the Court “has damaged the First Amendment more quickly and more severely than I feared.” He is not alone, and we must now tremble both for the little ones who do not see the light of the day and even for those who do and grow up wanting to speak about the darkest practice of our enlightened age.

1. Though the majority repeatedly and insistently refers to the statute as one protecting people from “unwanted” speech and prohibiting “unwelcome” approaches, the statute is not limited to situations in which someone has rejected a proffered leaflet, speech, or approach. Rather, the section requires a speaker to gain the consent of a listener before approaching within eight feet to offer a leaflet or speak. Thus the statute is more accurately characterized as a restriction on uninvited speech, rather than unwelcome or unwanted speech.

The majority’s subtle shift of meaning eerily parallels proabortion rhetoric about “every child a wanted child.” Just as Planned Parenthood assumes that an unplanned pregnancy results in an unwanted child, the Court assumes that an uninvited approach means unwanted speech. [Mike Millen is a San Jose civil litigation attorney, who, in his spare time, argues on behalf of pro-life advocates.He is convinced that a culture which values spotted owls and old growth redwoods more than almost-born-babies desperately needs the Good News of Christ.]