In The Courts

Court Sets 2 New Rules of Engagement on Abortion

Wednesday, July 2, 2014

First buffer zones, then Hobby Lobby. After these back-to-back negative Court rulings, the pro-choice side needs to fight speech with speech and find a corporation to fight corporations.

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Credit: Mark Fischer on Flickr, under Creative Commons

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BOSTON (WOMENSENEWS)-- In any conflict between fundamental rights, courts have to balance the competing interests involved, which means neither side wins, completely.

That's what happened last week when the United States Supreme Court struck down Massachusetts' "buffer zone" law that required protesters to stand at least 35 feet away from clinics providing abortion services and other health care for women.

Then this week with the Hobby Lobby case, the Court weighed the interests of for-profit corporations against women's "compelling interest" in obtaining access to contraception and ruled that the government--not private companies--must protect that interest. Small, private corporations cannot be forced by federal law to pay for contraception if the law imposes a "substantial burden" on religious liberty and is not the "least restrictive means" available to protect women's rights.

Both these decisions give the pro-choice side new rules of engagement to consider.

In the case of the buffer zone, some critics say the decision weakens abortion rights, but in fact the Court wrote only that Massachusetts' 35-foot zone was too big; a kind of elephant-killing-a-grasshopper legal problem. It's OK for laws to restrict protesters' First Amendment rights, but laws that impose on speech in "public places" can't be more restrictive than necessary.

Thirty-five feet was more space than necessary, the Court said, because the attorney general failed to prove that anything "less restrictive" would have been inadequate. This means that a smaller zone--say 10 feet--could well be constitutional given that in a 2000 decision, the Court upheld Colorado's 8-foot "buffer zone" law. Thirty-five feet might also be acceptable but Massachusetts will need to collect the data to prove it, first.

The very nature of "balancing" rights in decisions such as this means each side gives a little to accommodate the other. But as with most things, the political rather than the human value of the interests involved usually determines where the balance is struck.

Supreme Court's Buffer Zone

For example, the Supreme Court itself is protected by a substantial "buffer zone" law that keeps protesters hundreds of feet away from the building's entrances. The Court will hear a challenge to the constitutionality of that law in September. While the zone is much larger than 35 feet, the law will likely be upheld on the theory that the marble area around the court is a slightly different type of public space from the public sidewalk outside a women's clinic. I also expect the Court to say the Supreme Court building is a "special" place worthy of "special" protections. Lucky for the Court, they get the final say on who gets "special" privileges.

Meanwhile, let's be honest about a certain imbalance in the Court's balancing act. If people held signs outside a housing project in Boston stating, "Blacks are inferior," does anyone think the Court would call it "free speech?"

Race and gender aren't always analyzed the same way in legal conflicts and sometimes racism is a more weighty concern than sexism. But in a battle of competing interests, civil rights laws are lower in the pecking order than the fundamental liberty interests of privacy and autonomy that underlie abortion rights. That means anti-abortion speech should be more "restrictable" than racist speech, but the politics of women's freedom often leads the law down irrational pathways as was reaffirmed in the bizarre Hobby Lobby decision earlier this week.

The curious part of the decision wasn't that the Court protected a religious opposition to contraception, it was that it extended that protection to the "commercial, profit-making" sector. Previously, such exceptions would only have been allowed in connection with nonprofit religious practices.

Hobby Lobby extended that idea to for-profit companies by relying on the already controversial notion of "corporate personhood." In other words, any company--whether a nonprofit religious one or not--now has a "personal" right to exercise religious freedom in a way that limits the fundamental rights of actual individuals. As with too many court decisions, only females, at least for now, will suffer the consequences. However, the ruling certainly sets the stage for corporations to use religion as an excuse to discriminate against other protected classes in society.

Let's hope a group of Wiccans soon becomes a monopoly owner of all golf-supply companies and refuses to provide coverage for Viagara. That case will get to the Supreme Court for review in about an hour and the justices will have an epiphany that overturns Hobby Lobby as the only intellectually honest way to protect men's right to erectile functioning.

Stepping Up the Game

Meanwhile, back to the buffer zone, given the political element involved, that ruling is a signal to pro-choice advocates to step up their game.

Let the speech wars begin.

By allowing protesters to be closer to clinic patients, the Court has tipped the balance against the freedom of women to obtain medical care without harassment. But the decision is hardly a major victory for the anti-choice movement. Indeed, it could be a pyrrhic victory. As noted by the Boston Herald's Margery Eagan, "buffer zones" wouldn't even be necessary if women's medical care wasn't segregated out for different treatment in highly visible locations, which may well happen because of this decision.

For now, just as women will be organizing protests, online and in public, asking consumers not to patronize Hobby Lobby stores or any of the other 50 or so businesses that filed similar suits, when anti-choice advocates say their Christian faith compels them to protest, pro-choice advocates who disagree with that message should stand right next to them with signs saying "Jesus was an illegitimate child" or some other phrase that is just as insulting as the command that women not exercise authority over their bodies.

Pro-choice advocates have a right to disagree publicly with the claim that Christianity requires women to give birth to unwanted children, just as people debate whether the Quran requires women to wear burqas.

Protesters have a right to express their belief that abortion is wrong. But they should have to tolerate insults, too. Anything that happens outside a women's clinic is, after all, in the public sphere and the United States Supreme Court says all offensive speech is protected there. I'd gladly hold a sign that says: "Some of the same priests who want to control women's bodies controlled the bodies of children they molested."

If speech is so important, and I agree with the Court that it is, then women should not be wasting time redesigning buffer zones and proposing dopey new laws to punish the harassers. They should be brave enough to fight speech with speech.

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