The petition, asking the court to review the decision in McCullen v. Coakley, is here; Stuart Buck has more on the subject, plus his opinions on the merits.
The petition, asking the court to review the decision in McCullen v. Coakley, is here; Stuart Buck has more on the subject, plus his opinions on the merits.
theobromophile says:
If anyone is interested in the First Circuit opinion, it is here. To me, it seemed rather hostile to the pro-life side (i.e. it is not really necessary to put scare quotes around the word “facts” when referring to evidence brought by the pro-life side).
[EV: Thanks, updated the post accordingly.]
December 1, 2009, 1:31 pmthecabbage says:
“You broke the Internet!”
“What, how much?”
“All of it.”
[icy glare]
[EV: Huh, odd, don't see it on my browser. Let me know, please, whether you still see the problem. Also, for future reference, please e-mail each author about such things (I'm at volokh at law dot ucla dot edu), since that is more likely to reach us quickly.]
December 1, 2009, 1:36 pmOren says:
Perhaps this is offtopic but I am continually dismayed by the prevalent notion among protesters (usually the far left, but in this case on the right) seem to confuse freedom of speech/expression with freedom to physically interpose themselves in an attempt to obstruct actions of which they do not approve. Not only is this patently absurd (witness, for instance, the conceit of the lefties at the GOP convention to impede the delegates’ buses as “peaceful protest”) but it weakens public support for genuine free expression and protest by conflating it with obstructionism.
This confusion, and rational attempts to keep the public order against such obstruction, are a real danger to our long term freedom.
December 1, 2009, 4:08 pmJoe says:
Timothy Zick has a good book entitled “Speech Out of Doors” about the value of public protest, including anti-abortion related activity.
Both “lefties” and “righties” can find it interesting and at some points challenging.
December 1, 2009, 4:49 pmOren says:
The Court found that those allegations were simply unsupported by the evidence. Isn’t that what Courts do? Are you implying that the Court must accept as true not only the evidence presented, but also the implications that the plaintiff draws from those evidence?
The way I see it (tactically), the plaintiff has to get into the content-based-restriction-ballpark to have any hope of winning the case. So they cite facts about the legislature’s passing of the bill and insist that the court must infer from those facts that the restriction is content based. The only thing the Court has done is reject that inference.
I’m not happy with the ruling, in that I wish that we had never come to the point where clinic employees and patients could not go about their business without legal protection. It’s terrifying, in fact, that the entire notion of protest has been conflated with unlawful obstruction. We’ve lost our ability to express ourselves without violence, and I don’t think that bodes particularly well.
December 1, 2009, 4:52 pmOren says:
Joe, I’m familiar with Zick’s work and I think he accurately identifies the symptoms but I have to disagree with him on the disease. Those restrictions that he bemoans seem to me to be caused by protesters’ increased use of protests as an excuse to obstruct, intimidate or outright vandalize.
I mean, with respect to the GOP convention, he posted all about the heavy-handed police response (which I disagree with in degree) but nothing at all about the stated goal of the protesters to obstruct the convention. This is besides the fact that a group of individuals freely associating for the purposes of political advocacy is the pinnacle of the liberty protected by the First Amendment. To allow protesters to use the 1A to shield their actions that obstruct such a convention would be the height of irony.
December 1, 2009, 4:59 pmDilan Esper says:
If anyone is interested in the First Circuit opinion, it is here. To me, it seemed rather hostile to the pro-life side (i.e. it is not really necessary to put scare quotes around the word “facts” when referring to evidence brought by the pro-life side).
Yes it is. The pro-life side calls lots of things “facts” that are in fact either misuses of scientific theory (i.e., claims about when a pregnancy starts) or value-laden claims expressed in factual language (i.e., ipse dixits that because a zygote has the DNA of a human person, that it is a rights-bearing individual). Plus, much of the pro-life movement is comprised of religious conservatives who believe that things that plainly did not happen actually happened. So, until the pro-life movement deals in actual facts rather than value claims and fairy tales, I don’t see the problem with scare quotes when describing anything a pro-lifer asserts as a fact.
That said, pro-lifers should have a very strong First Amendment right to picket clinics, as long as they don’t block ingress and egress, and I disagree with the court decisions that have curtailed that right to some extent.
December 1, 2009, 8:48 pmreadery says:
But if interest in the welfare of future generations has no scientific basis, then this whole global warming scandal is one of the most anti-science things that have ever happened to us. Why aren’t pro-choicers up in arms?
Here we have fundamentalist anti-science troglydites like the theologians in that East Anglia Research Center claiming that government should limit people’s freedoms based on consideration of the interests of future “people” who haven’t even been conceived yet!
Surely this has got to be far worse than claiming that the state ought to have an interest in those who actually have been concieved. if the one is anti-science religion, then the other is anti-science religion in an even more extreme form. There’s no logical way to avoid it.
How do pro-choicers square global warming legislation with the First Amendment/ If science demands that government can only have an interest in actual people, then it necessarily follows that any claim of government interest in future generations is an extreme of anti-scientism. Surely not being conceived yet is less actual than being conceived! Surely there must necessarily be less of a scientific basis for government interest in the not-yet-conceived than the already-conceived.
So interest in global warming, which is of no real concern to us but is a matter only for future generations, is religion, and forbidden by the First Amendment
Science says so.
I’d also like to point out that by this logic, any concern about the deficit is also anti-science. If science demands that we be concerned only with that which fully exists and requires that we not concern ourselves even with things in the middle of the process of becoming, than it must surely demand that we not concern ourselves with things yet to be.
It seems to me that any person willing to be concerned about people not yet conceived has no business claiming that one shouldn’t be concerned with those who have been. If science permits the one concern, it necessarily permits the other.
December 1, 2009, 9:57 pmreadery says:
I’d also like to point out that education is anti-scientific by this logic. Education concerns itself with future states not yet in existence. If government has no natal interest in those not yet born, then it also has no medical interest in those not yet doctors, no legal interest in those not yet lawyers, no scientific interest in those not yet scientists. Education is a quintessential example of government acting in the present where its interests lie only in a future, not-yet-attained state. If the idea of government interest in fetal welfare based on future citizenship etc. is “religious”, then government interest in education based on future contributions of graduates is also “religious”.
December 1, 2009, 10:03 pmOren says:
You didn’t read the opinion, huh. The ‘”facts”‘ to which the opinion referred involved the process by which the legislature passed the bill. That has nothing to do with science, values, religion or otherwise — it was about legislative intent and nothing more.
It is exceedingly difficult to craft a set of rules that effectively stops the latter while preserving the former.
This makes even less sense than your usual rantings. What possible first amendment right could AGW legislation implicate?
December 1, 2009, 11:02 pmtheobromophile says:
Oren: that’s my point, really. In close to 100% of cases, a losing party will present evidence that the court finds to be unpersuasive; the judge will either think that the burden of proof has not been met, inferences drawn from those facts are unpersuasive, or the other side had a better argument. Yet, you rarely see opinions in which the judge feels the need to mock (subtly or overtly) the facts presented by the plaintiff. The vast majority of the time, judges say what you say (i.e. that the inferences drawn from the facts are unpersuasive). In no way, whatsoever, does that make scare quotes acceptable.
In fact, scare quotes seem to say that the judge can’t even be bothered to analyse the situation but instead is ruling based on personal bias. Let’s be real: is the First Circuit really arguing that this ban was not brought by pro-choicers, either on their own or because of a push from abortion providers? That a ban may be facially and functionally content neutral does not turn that reality into a scare-quote “fact”; it just means that it’s not persuasive enough to change the standard of review.
Also, as a very personal thing, I see it as a professionalism issue. While judges can certainly have fun with the law – adding human interest to it, being clever with words, or the like – there is a fine line between adding colour and using the snark that is typical of, oh, internet flame wars.
Dilan: until you learn to get over your irrational hatred of the over one hundred million pro-life Americans, we aren’t going to have this discussion. That you need to deride a hard-core feminist with a degree in chemical engineering and no religious affiliation as an anti-science, anti-woman, religious nutjob shows a lot more about you than it does about us; it also reveals that you are fundamentally incapable of debating abortion on the merits.
That much has been clear for a long time. What you’ve now just revealed is that you are too blind to debate the constitutionality of related free speech restrictions… even though you are a lawyer. What a waste.
December 1, 2009, 11:17 pmDilan Esper says:
it’s not personal bias. basically, the pro-life movement’s speech falls within the long tradition of extremist, fundamentally offensive discourse which is worthy of strong condemnation but is nonetheless protected.
it isn’t “bias” for a judge to articulate the mendacity of pro-life speech any more than it is bias for a judge to express opposition to flag burning.
in america, you have the freedom to be a dangerous extremist. and courts should zealously protect that freedom while making clear that this is what they are doing
December 1, 2009, 11:42 pmDilan Esper says:
and by the way theo, over 100 million pro- life americans is a “fact”, not a fact. thank you for proving my point
December 1, 2009, 11:44 pmtheobromophile says:
According to the Census, there are approximately 217 million adults in America.
According to Gallup (May 2009), 51% of Americans are pro-life, compared to 42% who are pro-choice.
51% of 217 million = 110 million pro-life adult Americans.
December 2, 2009, 12:11 amtheobromophile says:
Interestingly, Dilan, that same poll indicates that 49% of adult American women self-identify as pro-life (compared to 44% who identify as pro-choice, leaving about 7% undecided). That means that there are over 50 million adult, American, pro-life women running around out there. Extremists, all of them!
December 2, 2009, 12:16 amDangerMouse says:
asically, the pro-life movement’s speech falls within the long tradition of extremist, fundamentally offensive discourse which is worthy of strong condemnation but is nonetheless protected.
WTF are you talking about? How is a person holding a sign saying “choose life” engaging in fundamentally offensive speech worthy of strong condemnation?
Abortion lovers really lose it when it comes to opposition to their demonic love of baby murder.
December 2, 2009, 2:21 amDilan Esper says:
Theo’s link, of course, shows only 22 percent of Americans support her position on abortion. That’s extremist.
Lots of people self-label “pro-life” while also supporting abortion rights.
December 2, 2009, 2:58 amtheobromophile says:
What would that position be, Dilan?
What percentage support your view on the legality of abortion? What percentage share your moral view of abortion as not merely no one’s business, but a good thing? (Even among pro-choicers, “safe, legal, and rare” is the dominant theme.)
I would wager that, when all is said and done, many, many more Americans agree with me than agree with you.
(For the record: as a policy matter, not a personal matter, my belief is that abortion should be legal in the “tough” cases – life, severe and debilitating health issues, incest, and rape. My simple point has always been that I’ll concede every single heart-wrenching issue, then ban the other 93% of abortions; after all, the perfect should not be the enemy of the good. That position, incidentally, gets the plurality if not a straight majority.)
December 2, 2009, 3:21 amAnatid says:
Okay. How, in policy, do you intend to determine which cases are “heart-wrenching”?
December 2, 2009, 3:33 amtheobromophile says:
Oddly enough, Ant, I already listed those out… in the text that you quoted. So what’s your problem?
By the way, I’m thrilled that Dilan mentioned that something which only 22% of the country supports is “extremist.” Now it’s time for him to figure out how he, again, shot himself in the foot. :)
December 2, 2009, 3:49 amAnatid says:
Sorry, I should have specified. I am interested in how you would like to see that policy put into practice.
If it’s the burden placed on the mother, rather than the life of the fetus, that’s in consideration here … different people have varying levels of resilience. “Heart-wrenching” is a highly subjective component of the human experience. Some people can endure the circumstances you listed and turn out fine. Others would be a worse wreck in apparently-less-severe circumstances. So if it’s the wellbeing of the mother we’re worrying about, then we should base the grant on the actual level of harm she would suffer as an individual, rather than going by a narrow set of conditions that we can agree are bad. Why not be more generous (and medically cautious)? Why take the risk that, say, the woman with mild depression that we didn’t deem sick enough to get an abortion is actually a severe case and turns to suicide?
And I’m interested in how you plan to implement these restrictions. For example, how will you determine who qualifies for the rape exception? Only women whose rapist has been convicted, in the knowledge that trials take months and that there is a staggeringly low rate of conviction for sexual assaults? Or any woman who claims rape, which will encourage false accusations by women seeking abortions?
December 2, 2009, 4:31 amAnatid says:
Hit “submit” instead of “preview” by accident.
December 2, 2009, 4:32 amOren says:
The court was of the opinion that the plaintiff did not, as you describe, present facts and then make inferences but rather presented its inferences as though they were facts. For instance, the plaintiff claims that reconfiguring the zones must mean that the legislature intends to curb speech. Sure it’s a fact that they reconfigured the zone boundary, but the mocking attitude is toward the insistence that the fact must mean the legislature had the intent to curb anti-abortion speech.
It wouldn’t matter if it did.
Again, the “fact” is that the legislature intended to curb anti-abortion speech, instead of intending to curb the negative side effects of anti-abortion speech that was interfering in normal functioning of clinics.
Agreed and endorsed 100%.
December 2, 2009, 10:09 amOren says:
Yup. And as a meat eater I really lose it when those PETA freaks try to equate my dinner with murder. While hiking out in Oregon, I came across a protest insisting that logging was murder (without necessarily indicating what, exactly, the victim was). So it goes in a pluralistic society — we all have different opinions about what constitutes murder. If only we could learn not to be so bothered just because others disagree with our values, we might stop to actually listen to one another.
December 2, 2009, 10:13 amOren says:
Again, the facts of the case have little to do with the factual underpinning of the abortion debate.
December 2, 2009, 10:14 amOren says:
I scarcely believe this requires explanation, but there are obviously two ways to parse that sign (ultra-pedantically):
The protesters (and the PETA-nuts and the Earth-nuts) that stick to (1) and its analogs are, in my opinion, in a totally different ball park that (2). I’ve seen abortion protests, and the vast majority of the protesters were peaceful and respectful in their disagreement. I did, however, see a few that crossed the line from expressing an opinion about someone else’s choice to imputing their right to chose in the first instance.
December 2, 2009, 10:22 amOren says:
Countries that do that invariably end up with institutions that rubber stamp every abortion, if only because MDs tend to be more liberal that the rest of the population (at least socially). That’s how it goes in Israel which has almost exactly that policy.
December 2, 2009, 10:27 amPhatty says:
…and probably a lot more false accusations of rape.
December 2, 2009, 11:33 amPubliusFL says:
It still does require explanation. I don’t see how the two interpretations make the difference between acceptable speech and “fundamentally offensive speech worthy of strong condemnation.” Are Take protests or rallies against gun violence. Sometimes they merely express the opinion that people should not misuse guns to hurt others (and that those who do misuse guns should be prosecuted etc). Sometimes they express the opinion that one should not be allowed to choose to own a gun, or certain types of gun. Are the latter examples of “fundamentally offensive speech worthy of strong condemnation”?
December 2, 2009, 11:47 amDilan Esper says:
theo, conservatives who endorse republican positions on major issues, deride the interests of successful, sexually active women in terminating their pregnancies, and otherwise show no interest in either feminist theory and practice are not feminists.
as for your degree, you know grown-ups learn eventually to stop touting alleged educational requirements. you are confusing feminism with egotism.
December 2, 2009, 12:28 pmDilan Esper says:
oops, accomplishments, not requirements
December 2, 2009, 12:29 pmtheobromophile says:
Dilan: over 50 million adult, American women are pro-life; in addition, the vast majority of those who are pro-choice are very squeamish about abortion. So, by your logic, most women are not feminists.
By the way, I’m not sure what you mean by “otherwise show no interest in feminist theory and practice,” since I do both quite frequently. That, like most of your other pointless, comical attacks on me, is predicated upon an understanding of who I am that is fundamentally wrong.
In short: nice try, but, unless you are going to kick most American women out of the feminist club to fit your narrow, contorted definition of the word, I’m a feminist.
December 2, 2009, 12:56 pmtheobromophile says:
Oren: interesting that you should say that. While I certainly will not make you defend this viewpoint, I will point out that pro-choicers usually claim that, if abortion is illegal, women will go to back alleys to have them done, thus endangering their own lives in the process.
To address the issue itself, though: given that pregnancy is not some huge surprise, the response to a restriction on abortion, for any adult, would be to stop having insufficiently protected sex – a preferable situation for all involved in the long run, as any sane person would much rather not get pregnant in the first place.
On that note, to answer another question above: that rules are not always perfectly implemented does not mean that we never legislate. Given the messy state of the laws of any country – when is murder first degree or justifiable homicide? – it’s hard to understand why abortion is held to a higher standard. I, and other feminists, would be beyond irate if domestic violence and rape were to be made illegal because of the difficulty in making accurate factual determinations; yet, the espoused position would leave that possibility open.
Furthermore, unless abortion will be legal for all nine months of pregnancy, literally up until and through the childbirth process, then we are going to have to make imperfect legislation. Pro-life legislation would change the scope and timing of the laws, not any fundamental elements thereof.
To address Anatid‘s concern specifically: babe, I already addressed that… twice. Is the third time the charm?
December 2, 2009, 1:19 pmtheobromophile says:
Actual 1A issue: Oren, we fundamentally disagree on the issue of whether or not it matters that pro-choicers were the ones to initiate this ban. As a matter of basic logic, the ban is there to stop pro-life speech, not pro-choice speech nor pro-whales speech. Do you really think that this thing was brought because Planned Parenthood was upset with its own side? If not, who were they upset with? Whose speech do they aim to shut down?
Sure, you don’t necessarily need to infer from such that this is a content-based restriction, but it’s hardly a position worthy of mockery. Yet, the judge treats the argument as if it were laughable, which is just unprofessional.
On a side note, if current laws did not adequately fulfill their ends, one solution is to make those laws more strict. Another solution is to actually enforce them. As the First Circuit’s reasoning stands now, though, a government made chip away at our fundamental liberties by passing laws, failing to properly enforce them, and, noting that failure, pass ever more restrictive laws designed to redress the problem.
December 2, 2009, 1:31 pmDilan Esper says:
Theo:
Here’s a reading list for you.
Amanda Marcotte’s posts, here: http://www.pandagon.net and here: http://www.doublex.com
Jessica Valenti and Ann Friedman, here: http://www.feministing.com
Jill Filipovic, here: http://www.feministe.us
Lindsay Beyerstein, here: http://majikthise.typepad.com/
These are all pretty mainstream feminists. In other words, they are pretty much reflective of the strains of popular and academic feminism.
Read those blogs a few days, see how much of it you agree with. If it’s less than 75 percent, there’s really no way you’re a feminist, because very little of what those women say about gender issues is controversial among feminists.
December 2, 2009, 2:00 pmDilan Esper says:
As a matter of basic logic, the ban is there to stop pro-life speech, not pro-choice speech nor pro-whales speech. Do you really think that this thing was brought because Planned Parenthood was upset with its own side? If not, who were they upset with? Whose speech do they aim to shut down?
Theo’s right about this and this gets to the reason why clinic speech restrictions should be unconstitutional unless it gets to the level of physically blocking women from exercising their constitutional rights at the clinic. These restrictions are totally content-based and they target pro-life speakers for what they are saying– if a pro-choicer stands near the clinic with a sign saying “Keep Abortion Legal”, she doesn’t get arrested.
We’ve made some very bad free speech law in this country in pursuit of the laudable goal of protecting women’s rights. But the fact of the matter is, much as I think it shouldn’t be, abortion is a controversial procedure and people ought to be able to protest it, including at the places where it goes on.
December 2, 2009, 2:03 pmOren says:
That was Dilan’s phrase, not mine. Even as a pro-choice voter, I’ve already condemned his position as being counterproductive in the extreme. Like DangerMouse on the right, he refuses to even concede that his opponents might be acting in good faith or engage with their arguments. In some sense, the two of them richly deserve each other, if only the rest of us could get a reprieve from the name-calling.
December 2, 2009, 2:23 pmOren says:
This is due to imprecision in my language.
There are those that want to make abortion illegal in your sense, by delineating a medical conditions and allowing doctors to make a final decision about who qualifies (e.g. Israel). There is a much stricter sense that many pro-choicers fear, more akin to Brazil’s system, in which only rape or imminent danger to the life of the mother (as opposed to merely her health) qualify and doctors face substantial criminal liability for making the “incorrect” decision (of course, only if they are incorrect in the false-positive sense and perform an unwarranted abortion — no liability attaches to false-negatives).
In the former case, it degenerates into rubber-stamping. In the latter case, it degenerates into back-alley abortions and teenage girls spending three years in prison because they didn’t wait long enough after taking abortifacients and going to the hospital (conversely, if they wait too long, they might bleed out).
Short version: I’m skeptical of how one might make a rigorous conditional system that does not collapse into either of these two states (or worse, vacillates between them depending on the hospital, Minister of Health, jury pool or other random factors).
Indeed. There is much common ground to be found in the education and availability of birth control. Safe, legal, rare is, IMO, the best possible scenario.
This is a matter of degree. At some point, the unworkability of the law is evidence of poor design (prohibition stands out in this regard).
Well, we’ve already discussed this, but I think viability (20 weeks and amazingly close to the centuries-old English Common Law standard of quickening) is a very natural divider. A fetus that can survive outside the womb seems to me fundamentally distinct from one that cannot.
December 2, 2009, 2:39 pmDilan Esper says:
That was Dilan’s phrase, not mine. Even as a pro-choice voter, I’ve already condemned his position as being counterproductive in the extreme. Like DangerMouse on the right, he refuses to even concede that his opponents might be acting in good faith or engage with their arguments.
It depends on what you mean by “good faith”. I think there is a significant minority of people in this country who believe that the sexual revolution was generally a very bad thing, that easy access to abortion allows people to avoid responsibility for their actions, and I think they hold those beliefs in good faith. I also think a lot of them believe that the fetus is a human person, but I think that view actually follows from their views about sex and gender, as people who tend the thing the sexual revolution was a very good thing tend to also think that the fetus is not entitled to the rights of a person.
I think there is a much larger number of people who sometimes get identified as pro-life but who basically don’t like abortion very much, are uncomfortable with it, but don’t want to make it illegal. These include many of the folks who support the Stupak Amendment but also support Roe. That position is held in good faith too.
However, I think the activist pro-life movement is very much arguing in bad faith. The reasons are because (1) they conceal both the religious motivations behind their position and the connection between their position and their views about sex, women, and contraception, and (2) they make all sorts of disingenuous arguments about fetal personhood, public opinion surveys, the extent of the holding of Roe, whether abortion policy should be made at the state or the federal level, and whether various measures that do not involve abortion bans could reduce the number of abortions.
Bottom line, no, I don’t think very highly of pro-lifers. Women’s lives and livelihoods depend on this issue, and I don’t appreciate people who are trying to use the government’s power to influence how women conduct their sex lives. But no, I don’t think the average pro-lifer is acting in bad faith– he just belongs to a movement whose leaders act in bad faith.
December 2, 2009, 2:39 pmDilan Esper says:
With respect to Oren’s and Theo’s discussion, I would add to Oren’s list of practical problems with imposing lots of conditions and restrictions on the abortion right the fact that a lot of us feel that it’s quite improper to make a woman carrying an unplanned pregnancy– i.e., a woman who is already, perhaps, in a fragile emotional state, upset, depressed, worried about an abusive boyfriend, or whatever– jump through a bunch of hoops to prove that she is “worthy” to have an abortion.
To take the most extreme example, consider the rape victim who Theo would allow to have an abortion. In order to enforce the rape condition, you need to have a whole bunch of people involved in the process of verifying the claims. This will include requiring the traumatized woman to go immediately to the police (even before she knows she is pregnant and when she is extremely upset), provide uncomfortable details of the assault as well as any other recent sexual activity (to rule out that the pregnancy was not the result of the rape), and have some group of people judge as to whether she really “consented” to the sex (especially in cases of claimed date rape or drunkenness).
In other words, even though Theo is compassionate and wants to help the rape victim, the legal regime that she imagines is much worse for that rape victim than a legal regime that allows her to just go in and have her abortion without having to go through a process.
This is one reason why so many feminists oppose abortion restrictions even if they may have some personal qualms about the procedure (such as sex-selection abortions). In order to impose these sorts of restrictions, you have to create a bureaucracy to judge whether women are worthy enough to get an abortion, with all the traditional stigmas and prejudices coming into play, and with women in the most desperate and unfortunate straights being put through a second victimization.
December 2, 2009, 2:52 pmOren says:
Irrelevant. The clinics want to shut down the (unprotected!) negative side-effects of some of that speech, not the speech itself. They have no problem with protesters so long as they do not obstruct or harass employees and patients. If protesters had enough self restraint not to obstruct
I saw these firsthand in the 90′s, with Operation Rescue (before the FACE act) — the “protesters” literally formed a ring around clinic employees and did not allow them freedom of movement to and from the building. They stood in front of the delivery vans stopping them from getting into the driveways. That’s not merely protest-expression, it’s obstructing another person’s use of the public roads sidewalk.
Hypothetical — suppose Denver had no law prohibiting obstructing the flow of traffic and the lefty protesters were able to stymie the GOP delegates by blocking their buses from reaching the convention center. Would it be illegitimate for the city or State to pass a law forbidding such obstruction, even if they had in mind the particular incidents in which protesters violated the rights of the delegates by standing in the road? It’s absurd to thing that the first amendment right of protesters to express their opposition prohibits the state from criminalizing unprotected side effects.
It is laughable. The legislature intended to prevent protesters from obstructing the clinic employees and patients by physical force. In a free country, you ought to be allowed to shout at someone but that freedom ends when you prevent them from walking where they want to walk.
The police do not have to assign every available officer to micromanage each protest before the legislature decides to create a different law. Each law stands or falls (constitutionally) on its own merits, irrespective of the law that came before it, or the law that will come after it.
December 2, 2009, 2:59 pmDilan Esper says:
I saw these firsthand in the 90’s, with Operation Rescue (before the FACE act) — the “protesters” literally formed a ring around clinic employees and did not allow them freedom of movement to and from the building. They stood in front of the delivery vans stopping them from getting into the driveways. That’s not merely protest-expression, it’s obstructing another person’s use of the public roads sidewalk.
My problem is that rather than just arresting people for obstructing ingress and egress, and, if necessary, slapping an injunction on protesters not to obstruct ingress and egress, the courts approved injunctions based on “buffer zones” which were designed to keep the protesters away from the clinic.
This is the same principle that puts the protesters at the political conventions so far away that nobody hears their protest.
The First Amendment doesn’t protect a protester’s right to block a clinic entrance and prevent an abortion clinic from operating or patients getting in and out, but it does protect a protester’s right to get close enough to the employees, patients, and anyone else so that their voices can be heard. Instead, we’ve created a whole jurisprudence of buffer zones where people don’t have to hear the voices of anyone who might criticize them. This wasn’t necessary to protect abortion rights and it is a serious imposition on the rights of pro-life protesters.
December 2, 2009, 3:09 pmtheobromophile says:
Oren, with all due respect, I think that you are now ignoring the facts or making them up yourself. While it’s possible that a totally benevolent, free-expression loving Planned Parenthood encouraged the MA legislature to write this bill, the reality is that they were probably more than happy to entirely shut down their opponents in the process of ensuring that a few bad apples didn’t mess things up for them.
I’m a bad pro-lifer: I’ve done very limited time in front of clinics. The only time I had, though, was in Virginia; we held signs, stayed on the sidewalk, kept away from the driveway entrance, and just generally made our (mostly silent) presence known. Obviously, the singular of anecdote is not data, but from what I saw, the vast majority of present-day pro-lifers are not out to bar clinic entrances, harass women on the sidewalk, or otherwise violate the law. From my perspective, these laws are aimed at curbing behaviour that curbed itself over a decade ago, but, in doing so, present substantial limits to free expression.
December 2, 2009, 3:28 pmtheobromophile says:
Dilan: as for a rape exception, you are imputing all sorts of things onto it that do not necessarily need to happen. What if it were only necessary for her to file a police report which details the events of that evening and names, to the best of her ability, the perpetrator?
First of all, I think that a lot fewer men would want to engage in date rape; they would be well aware that if she got pregnant, she would almost have to go to the police.
Moreover, a huge problem that the pro-choice side has, but it refuses to acknowledge, is that it currently takes young victims of rape, gives them abortions, and then sends them on their way. (We saw, with the Lila Rose undercover videos, that Planned Parenthood deliberately ignores reporting requirements of statutory rape.) Whether the father of the child be an older, exploitative boyfriend or a relative (by the statistics, more often stepfathers than fathers), the proper response is NOT to just suction out her uterus and then tell her that she’s exercised a Constitutional right; it’s to get her the help – physical, social, and psychological – that she desperately needs after such an encounter. While reporting this to the police is not a sufficient condition for bringing that about, it is a necessary one; these young women need to get into the system before anything can be done for them.
Dilan: issues of federalism are not argued in bad faith. Groups like Libertarians for Life and Atheists for Life demonstrate that not all anti-abortion advocacy is based in religion. Furthermore, there are a host of laws which many people believe in because of their religious convictions; yet, we do not overturn prohibitions against murder because many people have a religious basis for opposition to it.
Finally, the “disingenuous arguments about foetal personhood” are not made on our side; they are made on yours. Our position is simple: human life, at all stages and regardless of the value placed upon it by certain members of society, is worthy of respect and protection. As I’ve mentioned many times before, Dilan, my opposition to abortion stems from an understanding of history (especially the feminist movement); I know that I’m tremendously fortunate to live in a time in which women are acknowledged as men’s equals (well, unless your name is Larry Summers), and, therefore, we get (mostly) equal rights. Prior to that time, our presumed inferiourity was used as a justification for denying rights to half of the population. This business of classifying human beings as “deserving” and “undeserving” stinks then and it stinks now.
December 2, 2009, 3:39 pmDilan Esper says:
Moreover, a huge problem that the pro-choice side has, but it refuses to acknowledge, is that it currently takes young victims of rape, gives them abortions, and then sends them on their way. (We saw, with the Lila Rose undercover videos, that Planned Parenthood deliberately ignores reporting requirements of statutory rape.)
I’ve never been raped, but I’ve heard enough testimonials from women who have been to know that for all sorts of good reasons, they may not want to deal with the police or anyone else. You can certainly argue that on a consequential level, this is a bad thing because the rapist doesn’t get punished. But you can also argue that this is sometimes a good thing because the woman doesn’t get further abused after the rapist finds out she is pregnant.
The bottom line is that I trust women to make these decisions. It’s their body. It’s their pregnancy. And I don’t want to impose any requirement or hurdle upon them that makes life more difficult for them in this situation.
December 2, 2009, 3:50 pmPubliusFL says:
Might it depend on whether the law, by its terms, applies only to roads and sidewalks bordering buildings used for GOP events?
December 2, 2009, 4:43 pmOren says:
How is keeping a 30 feet away “completely shutting down”? The phrase seems to indicate a total cessation of protest activity, not relocated it across the street.
December 2, 2009, 5:29 pmOren says:
Yes, because the FACE act put those protesters in prison for long terms and slapped injunctions on the organizations.
I agree that we see virtually none of that violent behavior today, but it’s not because the pro-life movement reformed itself.
December 2, 2009, 5:37 pmOren says:
That’s a fine position to have, but it is a value judgment, not a scientific fact any more than fetal non-personhood is a scientific fact. “Personhood” is not an empirical (Popperian) concept subject to the normal reasoning.
Indeed, the police report is the second rape and the witness stand is the third. It is morally commendable for women to follow through with the accusation to see justice done but I can hardly rationalize it as morally compulsory.
If it applied to all political conventions (just as the MA law applies to all reproductive health services, irrespective of whether they counsel abortion), then there is no problem.
“Content-neutral” is not an operational test of disparate impact, it’s an analysis of whether the conduct is criminalized based on message or based on time/place/manner.
December 2, 2009, 5:45 pmOren says:
No, but people don’t often dissemble about their motivations for opposing murder. I think that’s what Dilan was after — if you oppose abortion for religious reasons, it’s disingenuous to pretend that those aren’t the real reasons.
December 2, 2009, 5:51 pmPubliusFL says:
Actually, the MA law defines “reproductive health care facility” as a place where abortions are offered or performed (specifically excluding hospitals. So the only reproductive health service the law is concerned with is offering or providing abortion.
December 3, 2009, 9:02 amOren says:
And so you could prevent obstructions in front of any place where conventions are preformed. You might as well say the only place the speeding laws are directed is at the public roads — because that’s where the legislature determined there was a problem with speeding.
If pro-choice activists started obstructing the abortion-alternative clinics’ regular activities, would you be so quizzical about attempts to preserve their continued operation?
December 3, 2009, 1:03 pmPubliusFL says:
Nope. The law would be less concerning if it covered reproductive health care facilities whether they provide/offer abortion or not, despite the fact that it would have a disparate impact on the pro-life side because pro-lifers are more likely to protest at pro-choice facilities than vice versa.
December 3, 2009, 1:52 pmThe Volokh Conspiracy » Blog Archive » No News Yet on the Cert Petition in the First Amendment Abortion Clinic Picketing Case says:
[...] blogged about the case a few months ago, and signed an amicus brief supporting review — Colorado v. Hill has created a [...]
March 16, 2010, 12:33 pm