Free speech: another weapon in the war against abortion in the US

In a dramatic turn of events last week, the US Supreme Court overturned a 2007 law that separated and protected women who sought abortions and health care from the zealots who intimated and threatened them.

Ruth Rosen
30 June 2014

Pro-life activists outside a Planned Parenthood office in Georgia, USA. Photo: Demotix / Jim Michael. All rights reserved

I can still remember when law students, in the 1980’s, skipped classes in order to escort women who sought abortions or contraception from hordes of screaming protesters who clustered at the entrances to clinics in Buffalo, New York. They went to court and unsuccessfully sought to get a protest-free zone near the entrance of reproductive health facilities. Trying to protect the clinics’ patients, they argued that women seeking abortions should be protected from the verbal insults and threats hurled by anti-abortion activists. These were also the years when such anti-abortion activists actually killed physicians who performed abortion.

In 2007, a Massachusetts law created a 35-foot “public way or buffer zone” around the entrances to such facilities. State officials argued that the law was necessary because of a history of harassment and violence at abortion clinics in Massachusetts, which included shooting rampages at two facilities in 1994. The law basically provided women who wanted abortions—or just birth control---freedom from those who hounded them as “baby killers.”

The June 26, 2014 decision, McCullen v. Coakley, written by Chief Justice John Roberts and unanimously supported by the entire court, is yet one more gift to the religious right. The case brought before the Court centered around three Planned Parenthood clinics in the Boston area where anti-abortion activists have never stopped intimidating women as they entered the clinics. The ruling claims that the sidewalk restrictions were too broad and violated the protesters’ First Amendment right to free speech.  In short, Chief Justice Roberts argued that the protesters’ right of speech was greater than a women’s right to safely enter a clinic without being physically and verbally bullied.

This ruling applied only to Massachusetts, but women’s health advocates predict that buffer zones in other states will now be similarly prohibited. Ilyse Hogues, the President of NARAL Pro-Choice America, a national abortion right organization, told the press, “We’re deeply disappointed in the decision of the Supreme Court today to overturn Massachusetts’s buffer zone law.  The law was supported by public officials whose goal is to protect women, doctors, and clinic workers from the relentless harassment and intimidation that they face daily. This movement has a long history of violence and has committed eight murders and 17 attempted murders since 1991.”


Photo: Flickr/ DaveyninPlanned Parenthood, which provides cancer screening, tests of sexually transmitted diseases, contraception and abortion, said “that the buffer zone had significantly reduced the harassment of patients and clinic employees.  Before the 35-foot zone went into effect in 2007, protesters could stand next to the entrances and force patients to squeeze by them.”

Some will wonder why the four liberal justices on the Court sided with Chief John Roberts.  In part, they agreed with the narrow ground on which the Chief Justice based his ruling, namely, the constitutional guarantee of Freedom of Speech. They were also willing to support a decision that affected one state, rather than a ruling that would have affected the entire nation.

Unlike many countries, the U.S. Constitution permits all kinds of speech, including hate speech. The American Civil Liberties Union, founded by idealists after the roundup of communists and anarchists at the end of the World War I, has defended all kind of free speech. Yet, in this instance, the organisation issued  an unusually ambivalent response to the Court’s decision:

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation, and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics. We agree that a fixed buffer zone imposes serious First Amendment costs, but we also think the Court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.”

This is the same ACLU that defended the right of American Nazis to march through the predominantly Jewish community of Skokie, Illinois in 1977, where many Holocaust survivors lived.

The truth is, Americans are justly proud of their freedom of speech.  It is everyone favorite amendment because it can be used by both liberals and conservatives.

The US Supreme Court. Photo: Kjetil Ree.Lately, however, the Court has sided with conservatives' right to free speech. In the Supreme Court's infamous 2010 Citizens United v. Federal Election Commission ruling, the Court's essentially gave corporations the right to give unlimited funds to political candidates, describing their donations as " free speech.". Liberals weren't wrong when they pointed to that ruling as the moment when corporations became redefined as individuals, blessed with constituional rights. You could even argue that this was the moment when corporations won their relentless assault on American democratic institutions. 

Although the Court ruled that anti-abortion activists couldn’t be restrained within free speech zones. the police have corralled  thousands of protesters into “free speech zones” during recent Republican and Democratic national conventions, less they insult or threaten political candidates. George W. Bush, in particular, became famous for using these “free speech zones” to keep protesters’ voices far away from him. Yet anti-abortionist zealots are now permitted to harass women who go to medical clinics.

The Supreme Court is not operating in a vacuum.  Every month, another state passes some kind of legislation that limits the ability of women to gain access to health care.  In Texas, for example, where the battle against abortion has been particularly fierce, The Center for Reproductive Rights filed a federal lawsuit in April 2014 to block a new law that would close more than half of the state’s remaining providers. The law, which would have forced clinics to meet new and costly building standards, would force women seeking an abortion to drive hundreds of miles, even out of state, to seek health care.  A flurry of laws across the country have forced women to watch fetal sonograms, and have required long waiting periods for women to reconsider their decision. Sometimes the state courts rule these laws as unconstitutional, but that doesn’t stop legislators from passing new legislation that attempt to limit women’s access to safe and legal abortions.

In 1973, when the U.S. Supreme Court ruled abortion to be legal, the war against abortion started with a vengeance. Today, a majority of Americans support that decision, but it’s also clear that the religious right has been successful in creating doubts about abortion—and even contraception--and in dividing the nation’s voters.  A 2013 ABC News/Washington Post poll revealed that fifty-five percent of Americans say “abortion should be legal in all or most cases, while 41 percent believe it should be entirely or mostly illegal.”

On 30 June 2014, the Supreme Court issued yet another ruling that will restrict women’s access to health care. In Burwell v. Hobby Lobby, the Court ruled, in the name of freedom of religion, that family-owned companies could deny their employees contraception as part of their health care insurance.  In short, the Court gave companies that are not publicly traded the right to impose their religious views on women employees.  So the women who work for Hobby Lobby, a chain that caters to supplying materials for hobbies, will have to pay for their own contraception, even though the Obama’s Affordable Care Act mandated that all health care had to cover women’s contraception. Democrats immediately said they would try to pass legislation that would pay for these female employees, but there’s no chance it would pass in Congress.

So in one week, the Supreme Court has used both freedom of speech and freedom of religion, two cherished freedoms in the US, to limit and restrict women’s access to health care.

This is the atmosphere in which courts are making their decisions. It is a battleground littered with casualties, some of whom were abortion providers. And at the center of these relentless battles is the female body, and a nation deeply conflicted about whether a woman has the right to make choices about her sexual freedom and when and if she should wants to become a mother. 

Get 50.50 emails Gender and social justice, in your inbox. Sign up to receive openDemocracy 50.50's monthly email newsletter.

Related articles


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData