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06/27/2014 03:54 pm ET | Updated Aug 27, 2014

Understanding the Supreme Court's Abortion-Protest Decision

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In yesterday's decision in McCullen v. Coakley, the Supreme Court considered the constitutionality of a Massachusetts statute that made it a crime for any person knowingly to stand on a "public way or sidewalk" within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. The law was designed to eliminate clashes between abortion opponents and advocates of abortion rights that had occurred outside clinics where abortions were performed.

The law was challenged by individuals "who approach and talk to women outside such facilities, attempting to dissuade them from having abortions." The Act exempted persons entering or leaving the facility, employees or agents of the facility, law enforcement and similar personnel, and persons using the sidewalk area solely for the purpose of reaching another destination.

The Court, in an opinion by Chief Justice Roberts, invalidated the law. To appreciate the First Amendment issues presented in the case, it is necessary to have some understanding of First Amendment doctrine. In a very general sense, in evaluating the constitutionality of law restricting speech, the Court has drawn an important distinction between laws that restrict speech because of its message ("content-based" laws) and laws that restrict speech without regard to its message ("content-neutral" laws).

The Court has traditionally held that content-based laws are more threatening to First Amendment values than content-neutral laws, because they involve judgments by the government to treat some messages more or less favorably than others. For example, a law prohibiting anyone to hand out leaflets on a public bus (a content-neutral law) is viewed as much less problematic than a law prohibiting anyone to hand out leaflets supporting Republican candidates, or criticizing the mayor, or opposing same-sex marriage on a public bus. Although the content-neutral law restricts more speech, the content-based law involves the government is the suppression or disfavoring of particular ideas.

Because of this distinction, the Court generally takes a much more deferential approach to content-neutral restrictions of speech than to content-based restrictions of speech. When laws are content-neutral, the Court generally upholds them if they are "reasonable," but when laws are content-based the Court generally invalidates them unless they serve a very important government interest.

In McCullen, Chief Justice Roberts held that the challenged law was content-neutral, but that it was nonetheless unconstitutional because it was not sufficiently "narrowly-tailored" -- that is, it restricted more speech than reasonably necessary to achieve the state's legitimate ends. The effect of the law, Roberts reasoned, would be to prohibit persons who wanted, politely and calmly, to speak with individuals entering an abortion clinic in an effort to persuade them not to have an abortion. Roberts maintained that the state had no legitimate interest in preventing such conversations, and that the law should therefore be re-written to focus more precisely on the particular dangers that the state could properly seek to prevent, such as blocking entrances, disruptive noise, illegal threats and intimidation, and so on.

Critics of the decision regard this approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments.

In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more "narrowly-tailored" restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.

The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.

Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more "narrowly-tailored" alternatives that Chief Justice Roberts held would pass constitutional muster.

But there was a deeper and even more controversial issue lurking in the case. Justices Scalia, Kennedy, Thomas, and Alito scorned Chief Justice Roberts' opinion for treating the challenging law as content-neutral. In their view, the Massachusetts law, and similar restrictions, should properly be treated as content-based and therefore rendered virtually per se unconstitutional.

Justice Scalia argued, for example, that because the law restricted speech near abortion clinics, but not near other businesses and facilities, it clearly had the effect of disadvantaging people protesting abortion, relative to people protesting other objectionable activities at other locations. And Justice Alito maintained that because people who work at the clinics are exempted under the statute, and are therefore free to encourage abortion within 35 feet of the clinics, where anti-abortion protesters are forbidden to discourage abortion in that same location, the law is clearly content-based.

In the best part of his opinion, Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, flatly -- and correctly -- rejected this characterization. As he explained, laws that are content-neutral on their face do not become content-based for First Amendment purpose because they have content-based effects. This is so because every regulation of speech and, indeed, almost every regulation of conduct, has different effects on different people and, often, on different speakers. A law prohibiting the distribution of leaflets on a public bus will inevitably disadvantage some messages more than others.

The Warren Court recognized and abided by this principle in its 1965 decision in O'Brien v. United States, for example, in which the Court upheld the constitutionality of a law making it a crime for any person knowingly to destroy a draft card, even though it was clear that the only people who would knowingly destroy a draft card for speech purposes were those who were doing so to protest the draft and the Vietnam war. That principle has been applied consistently and basically without exception ever since.

Nonetheless, Justice Scalia fumed that "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." This is a completely unwarranted attack, for it was Chief Justice Roberts, not Justice Scalia, who was applying well-settled, clearly established First Amendment principles in McCullen in defining the difference between content-based and content-neutral restrictions of speech.

Finally, it is worth noting that this case must have been especially difficult for the Court's four "liberals," all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts' moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.