Thursday, July 3, 2014

Vulnerable Women Seeking Abortion and Scalia's Belief That Harassment is a First Amendment Right -

In Madsen v. Women's Health Center Justice Antonin Scalia assailed the restrictions on approaching patients going to a clinic where abortions are performed.  No self-respecting union picket line captain organizer would tolerate such restraints, he argued, lambasting the liberals for allowing some restriction.  In the new McCullen case he takes the opposite tack: how could you object to the `pretty please' approach of the carefully chosen plaintiff?  Richard Posner objected to the court's slighting of the the privacy of the patient.  Prof. Shiffrin has a similar concern. - gwc
Vulnerable Women Seeking Abortion and Scalia's Belief That Harassment is a First Amendment Right -
by Steve Shiffrin .. Cornell law school.

"Concurring in the McCullen decision last Thursday, Justice Scalia joined by Justices Kennedy and Thomas and Justice Alito, concurring in a separate opinion, argued that the Massachusetts law prohibiting persons except employees, patients, police and the like from entering a 35-foot buffer zone to the streets and sidewalks around the entrances to abortion facilities was a form of content discrimination. See Dorf On Law. He gave two arguments: one is difficult for me to take seriously; the other seems dead on. Nonetheless, the conclusion Scalia draws from the existence of content discrimination strikes me as inhumane – bereft of human feeling - and is symptomatic of a disease which afflicts First Amendment jurisprudence which in this case takes a gendered form.

Justice Alito give most of his attention to Justice Scalia’s second argument. The idea is that by permitting hospital employees into the buffer zones while preventing anti-abortion advocates in the zones, the statute permits those who favor abortion into the zones while keeping out those who oppose abortion. This, so the argument goes, is content discrimination. Chief Justice Roberts answer to this argument is entirely unsatisfactory. Out of whole cloth he produces the argument that employees acting within the scope of their duties are not permitted to speak favorably about abortion when they are in the buffer zone. Really? I would have thought it was the job of employees to help the patient in this traumatic time, and that one of the ways to do so might be to address the abortion issue in a favorable way from the perspective of the employer. It comes as a surprise that the statute silently set about to regulate the speech of the employees."
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