Saturday, June 28, 2014

Posner: Supreme Court Ignored Privacy in Abortion Clinic Case //Slate

The last thing a woman about to have an abortion needs is to be yelled at by the Godly. /// Slate
by Richard A. Posner
What we call “constitutional law” is not, for the most part, the result of interpretation of the Constitution. The Constitution is the pretext for what amounts to a body of judge-made law, much like the common law of England and America.
Now, the last case: this morning’s decision in McCullen v. Coakley, which invalidated a Massachusetts law requiring abortion protesters to keep 35 feet away from the entrance to abortion clinics.* Like Town of Greece, the opinion fetishizes First Amendment rights. The core of the opinion can be found in two brief quotations from it, which I’ve strung together: “With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. … Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities.”
The concern with privacy that animated the Riley case was forgotten after one day. Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.
The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

No comments:

Post a Comment