Piercing the Darkness in Massachusetts

[Following the U.S. Supreme Court’s decision last June in Hill v. Colorado, 120 S.Ct. 2480 (2000) upholding a Colorado statute forbidding speakers from approaching people without their consent, the Massachusetts Legislature passed a law which was similar in many respects, but with two crucial differences. First, the Massachusetts law applied only in the vicinity of “reproductive health care facilities” rather than all health care facilities as in the Colorado law. Second, the Massachusetts law provided an exemption for employees and agents of the “reproductive health care facilities.”

The law was challenged in federal court by pro-lifers represented by Dwight Duncan of the Southern New England School of Law. On November 20, 2000, the district court issued its ruling, declaring the law to be unconstitutionally content- and view-point-based.

The following are excerpts from the court’s noteworthy decision.—Ed.]

. . . Thus, the ultimate issue for determination by this Court is whether the restrictions contained in the Massachusetts statute apply equally to all speakers at the entrances of abortion clinics, regardless of their viewpoints on abortion, and do not favor one viewpoint over another. Hill, 120 S.Ct. at 2486, 2491. There can be no discrimination between the viewpoints advocated, between those who advocate that the life of the unborn child should be preserved and those who advocate that the viability of the unborn child can by legal right be terminated.

The Massachusetts statute, by its very terms, exempts from its restrictions the employees and agents of the abortion clinics within the restricted public areas. (1) These individuals, because of their personal relationship with the abortion clinic, have a strong financial interest or philosophic incentive to counsel the listener to undergo an abortion and they constitute very zealous advocates for this controversial procedure. In contrast, the Colorado statute in Hill allowed no exemptions from its restrictions on speech.

For the Massachusetts statute to pass constitutional muster, this exemption, at the very least, must be stricken from the statute’s provisions. With this exemption as a constituent provision of the statute, the statute’s restrictions are directed against speakers who advocate the pro-life position and exempt from its restrictions employees and agents of the abortion clinics who retain the unfettered right to educate and counsel potential abortion clients within the restricted public areas. The restricted areas are where the contending advocates have the most immediate and forceful and persuasive impact on the listener; where the opposing viewpoints are most vigorously contested.

This constitutes patent discrimination, and this statute, therefore, cannot be considered a content-neutral regulation of speech.

The Massachusetts statute clearly accords preferential treatment to expression concerning one particular viewpoint on the abortion issue, that of pro-choice.

This preference constitutes unequal protection of the law in the precious area of free expression in a matter of serious public debate where the government must be absolutely neutral.

“[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”

Police Department of the City of Chicago, et al. v. Mosley, 408 U.S. 92, 96 (1972). By the discriminatory terms of the statute, it is clearly manifest that the government disfavors the discussion of a particular viewpoint, the viewpoint that counsels a respect for the life of the unborn child in the robust abortion debate. The government must never take sides in the battle of ideas and ideals in the traditional public forum.

Because of the exemption of the abortion clinics’ employees and agents from the statute’s restrictions of speech on the subject of abortion within the restricted public areas, this Court holds that it is obvious that, in discriminating against the viewpoint of the pro-life advocates, the government has adopted a regulation of speech because of disagreement with the message that speech conveys, while at the very same public forum permitting interested abortion advocates to be absolutely free to counsel their listeners to have an abortion. For a statute to permit one viewpoint in a serious debate over public policy to speak freely in the public square, while the other side is statutorily required to remain silent strikes at the core of the First Amendment. The government must remain scrupulously neutral in the area of free speech or that great bulwark of human freedom is eroded.

The issue of abortion is one of the most profound moral, religious and legal issues of our time. Not since the issue of slavery tore asunder the social fabric of the Union and led to the tragedy of the Civil War, in which the blood of brothers drenched the soil of this nation in expiation of slavery’s grievous crime against nature, has an issue so galvanized the intellectual and spiritual conscience of the nation.

The intense national debate on abortion is based on a profound and serious philosophical and biological dispute between so-called pro-life advocates who are morally convinced that an unborn child is a living human person whose right to life should be secured by the protections of the United States Constitution and so-called pro-choice advocates who are as convinced that the unborn child is not such a living human person and that the unborn child’s mother has the choice to terminate the life of her unborn child, even, in some instances, of a child partially born. (2)

It was less than thirty years ago that abortion was branded an abominable crime by most states, and considered a moral evil by most people. (3) Pro-life advocates who firmly believe that abortion remains a grave moral evil must be given as equal an opportunity as their opponents to express to those seeking an abortion their sincere message of respect for the sanctity of human life. (4) The First Amendment requires no less. Police Department of the City of Chicago, et al. 408 U.S. at 96. The right to speak as freely as one’s opponents in the traditional public forum is the most valuable of our rights in a constitutional democracy, for otherwise public policy would not be shaped by a fully informed and fair citizenry. This Court declares Mass.Gen.L. ch. 266, Section 120E1/2(b) to be unconstitutional as violative of the First Amendment to the United States Constitution and issues a preliminary injunction enjoining its enforcement pending a hearing on the merits of the case. (5) This section disfavors the discussion of the subject of abortion and the pro-life viewpoint within that subject matter.

/s/ Edward F. Harrington,
United States District Judge