THE BIG PICTURE: SCOTUS Abortion Ruling Victory for Free Speech, But Issue Remains

by William R Alford - Mar. 1, 2006

“Clinic Clash: Right to Protest v. Right to Choose” “Supreme Court Rules for Anti-Abortion Groups” “Supreme Court Rules Against NOW, Clinics in Anti-Abortion Violence”

Such are the typical headlines that trumpeted the Feb. 28 US Supreme Court’s decision to disallow abortion clinics being specially shielded from protest. In reality, this ruling is not ‘for’ the abortion protesters or ‘against’ the clinics. Freedom of speech and peaceable assembly were the issues here.

Displaying the classic Leftist end-justifies-the-means mentality, NOW and Planned Parenthood attempted to use the Racketeer Influenced and Corrupt Organization Act (18 USC §1961) to protect abortion clinics from being subject to the much larger and far more violent protests that often greet International Monetary Fund conferences. The Justices unanimously ruled that for RICO-eligible extortion to be committed, there has to be some sort of property being sought when demonstrating outside “family planning” centers -- and there never was.

Furthermore, they continued, the Freedom of Access to Clinic Entrances Act (18 USC §248) was sufficient to grant abortion clinics protected status against protest or demonstration. It is this existing law that continues to be troubling. Places of “religious worship” are also included, but given the Act’s name, there should be little dispute as to which of the two completely different categories was the main focus.

Some provisions of FACE seem reasonable enough. It forbids intentional injury, destruction of property, threatening force or other forms of violence against such facilities -- and those who enter them. But then, those with the humblest of legal educations know that it’s already illegal to engage in such acts in front of, within, beside or behind donut shops, libraries and office buildings.

Other provisions are more of concern in their vagueness. Forms of the words “intimidate” and “obstruct” are repeatedly inserted alongside terms that connote bashing heads, burning buildings and breaking glass. Thus, acts such as holding signs that truthfully describe or depict a practice with which some disagree are legally in the same class as acts that involve spilling blood or tossing bricks.

Most importantly, such activities were only to be illegal concerning certain facilities, not all. In other words, it is illegal to protest against abortion at its source, but is still OK for most anyplace else. Nonetheless, unions and social activist groups found employing RICO in these circumstances a disquieting enough invitation to judicial subjectivity and supported the anti-abortion groups in the consolidated cases before the Court.

Roe v. Wade (410 U.S. 113 1973) notwithstanding, the American people remain divided in significantly large percentages on abortion. Those who support laws like FACE want the issue to be set in stone with no further discussion, officially or by the public. A matter that is so important should of course be openly debated and legislation passed by our elected representatives – who will then be subject to the political consequences for good or ill.

As Judge Robert H. Bork had recently noted, if Roe were ever overturned, abortion would not summarily be made illegal. The issue would simply revert to the states and dealt with democratically. Instead, a majority of nine robed Philosopher Kings foisted the ‘correct’ decision -- that is not subject to further review -- upon the entire country.

The robust dialogue that would have attended legislation actually issuing from the legislature was abruptly quashed with Roe – and I daresay deliberately so. At the teachers unions’ enthusiastic behest, NOW’s contraception/abortion monolith has thus been foisted upon teenage girls and young women for more than a generation.

Consequently, many of them don’t fully appreciate the implications of this “procedure” until they’ve experienced it firsthand. Many who have had abortions – including the woman from the original Roe case – reported experiencing traumatizing regret for their decisions, often taken with little information and much anguish.

Most are shielded from such facts as how the developing baby has a distinctively human EKG at six weeks gestation and feels pain very early in pregnancy. Attempts at supplementing the standard line with the whole story are typically greeted with hysteria. What does that say about a given position if information is a threat?

Perhaps out of frustration, grassroots organizations like Operation Rescue have arisen therefore to fill this glaring void by means of direct confrontation.

Perhaps some of us do not agree with their tactics or do not concur with their position on abortion. But given that this issue has not been settled democratically, it remains a festering wound that will continue then to be hashed out in the streets. Attempting to declare an officially deemed ‘correct’ position by marginalizing – or criminalizing -- the opposing point of view will not serve to end any and all debate as is likely hoped.

By a unanimous decision, the US Supreme Court issued the decision that best serves the fundamental principles of the First Amendment. But FACE remains on the books and Roe is evermore ossified, so the rancor will continue.