Oren: If pro-choice activists started obstructing the abortion-alternative clinics’ regular activities, would you be so quizzical about attempts to preserve their continued operation?

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.

If pro-choice activists started obstructing the abortion-alternative clinics’ regular activities, would you be so quizzical about attempts to preserve their continued operation?

Oren: 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.

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.

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.

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.

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.

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.

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.

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.

Might it depend on whether the law, by its terms, applies only to roads and sidewalks bordering buildings used for GOP events?

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.

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.

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.

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.

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.

Oren: 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?

Might it depend on whether the law, by its terms, applies only to roads and sidewalks bordering buildings used for GOP events?

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.

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.

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.

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.

Irrelevant. The clinics want to shut down the (unprotected!) negative side-effects of some of that speech, not the speech itself

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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 [sic, I assume you meant "legal"] because of the difficulty in making accurate factual determinations; yet, the espoused position would leave that possibility open.

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).

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.

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.

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.”

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.

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.

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.

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.

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).

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?

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.

as for your degree, you know grown-ups learn eventually to stop touting alleged educational requirements. you are confusing feminism with egotism.

Oren: I scarcely believe this requires explanation, but there are obviously two ways to parse that sign (ultra-pedantically)

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”?

Countries that do that invariably end up with institutions that rubber stamp every abortion…

…and probably a lot more false accusations of rape.

Oddly enough, Ant, I already listed those out… in the text that you quoted. So what’s your problem?

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.

WTF are you talking about? How is a person holding a sign saying “choose life” engaging in fundamentally offensive speech worthy of strong condemnation?

I scarcely believe this requires explanation, but there are obviously two ways to parse that sign (ultra-pedantically):

(1) It is the opinion of the sign-holder that one should make a choice not to abort one’s fetus
(2) It is the opinion of the sign-holder that one should not be allowed to chose whether to one’s fetus

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.

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.

Again, the facts of the case have little to do with the factual underpinning of the abortion debate.

Abortion lovers really lose it when it comes to opposition to their demonic love of baby murder.

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.

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.

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.

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?

It wouldn’t matter if it did.

For another thing, where differential treatment is justified, on an objective basis, by the government’s content neutral effort to combat secondary effects, it is insufficient that a regulation may have been adopted in direct response to the negative impact of a particular form of speech.

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.

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.

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.

Agreed and endorsed 100%.

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?

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. :)