The Supreme Court just ruled that “buffer zones” outside abortion clinics restrict the free speech of sidewalk counselors wishing to persuade women not to have abortions. The decision nullifies a Massachusetts law that creates such zones. The court overturned the law in a unanimous 9-0 ruling. So far, so good.
There is another side to this ruling, however, that is not so good. The Court refused to recognize that the Massachusetts law unfairly targeted pro-life speech in particular. For this reason, Scalia issues a scathing opinion. He writes:
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion…
The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortionspeech edition of the First Amendment. But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward marchof abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny.
In other words, the majority of the justices did not see the Massachusetts law as targeting pro-life speech outside abortion clinics. Scalia is incredulous:
It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.
I’m not a lawyer. Nor do I play one on TV. Nevertheless, I am very sympathetic to Scalia’s concerns. I’m grateful for a unanimous ruling overturning the Massachusetts law. That is very good. But I’m concerned about the failure to recognize how the law specifically targeted pro-life speech.