The ACLU, Abortion and Free Speech

Laws creating protest-free “buffer zones” around abortion clinics is an issue that often divides civil libertarians and social liberals by pitting two of their favorite rights against each other. The right to free speech, some of them argue, is not contingent on whether or not you agree with the speaker’s methods or views. So long as pro-life protesters allow people to enter and leave abortion clinics, legislatures can not ban them from coming within a certain distance. Others argue that  past behavior from abortion protesters, including the murder of clinic workers, justifies the need for heightened limits on protesting outside clinics.

The most recent Supreme Court case on the subject was Hill v. Colorado in 2000, in which the Court decided 6-3 that “floating bubbles” around those entering and leaving an abortion clinic were constitutional. Among the civil rights groups standing up for the free speech rights of the pro-life protesters was the American Civil Liberties Union (ACLU), despite their long history of support for abortion. “[T]he First Amendment does not permit the state to restrict the free speech rights of all protesters because some protesters may take advantage of the situation to violate the law,” the ACLU argued in an amicus curiae brief.

This past week, the Supreme Court heard oral arguments in McCullen v. Coakley, a challenge to an even more restrictive Massachusetts law that bans anyone without business at an abortion clinic from coming within 35 feet. One civil rights organization filed their own amicus curiae arguing against the ACLU’s position in Hill. “[W]hile there is no claim that  Petitioners themselves have engaged in violent protest,” they wrote, “the state is entitled to consider the broader  record of obstruction and violence directed at abortion clinics in Massachusetts and elsewhere  when enacting general legislation…”

The civil rights organization in question? The ACLU.

Yes, by its own admission the ACLU has “evolved” on the issue. Or as they put it, their “position on the issues presented in this case has evolved over time as the legal issues have shifted and the factual record has developed more fully.” As their McCullen brief makes clear, the ACLU now believes that given the unfortunate history of attacks on abortion clinics by radical anti-abortion groups, Massachusetts is justified in banning all protesters, including the peace-loving, cookie-baking 77-year-old grandmother suing in this case.

Despite their insistence that the “factual record” has changed, there hasn’t been a murder at an abortion clinic in Massachusetts since 1994 (except for, you know, actual abortions). Therefore, nothing has changed since 2007 when the Massachusetts ACLU came out in opposition to the law being challenged. “[I]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away,” the state chapter said at the time. But like its national chapter, it now endorses the Massachusetts laws as presumptively constitutional.

Many who support both abortion and free speech have taken the ACLU to task for its reversal, chastising them for placing their full-throated endorsement of abortion above their longstanding commitment to the right to free speech. “[I]it’s a shame that the ACLU (among others) put issue-specific advocacy ahead of a principled commitment to the freedom of speech,” wrote libertarian blogger Jonathan Adler. “[T]he First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen,” legendary First Amendment lawyer Floyd Abrams wrote in a Wall Street Journal op-ed, “the ACLU has.”

Conservatives have complained that the ACLU occasionally puts liberal policies before constitutional rights for decades. Most notably, despite their advocacy of nearly every other portion of the Bill of Rights, the ACLU has never challenged an infringement on the Second Amendment, pairing with the NRA only occasionally on privacy issues like gun registries. The last time the ACLU took a free speech stance that defied liberal political sensibilities (Citizens United), their support was so controversial the organization seriously considered reversing course only three days after the Supreme Court handed down its decision.

But recently, the ACLU has had something of a blind spot when it comes to the issue of reproductive rights. As Rick Plasterer recently noted, the ACLU is suing the Catholic Conference of Bishops over guidelines prohibiting Catholic hospitals from performing abortions in certain cases, rejecting religious liberty concerns for a hitherto unheard of right to be given an abortion in a Catholic hospital. And naturally, the ACLU has rejected the same religious liberty arguments in its support of the Obamacare contraception mandate.

The ACLU has in the past supported the right of the Westboro Baptist Church to picket the funerals of fallen American soldiers, the right of the Ku Klux Klan to march through Jewish neighborhoods, and the right of the North American Man/Boy Love Association (NAMBLA) to produce literature extolling the virtues of sex with minors. In all these cases, there was a real risk of physical confrontation or lawbreaking. But in all these cases the ACLU has recognized that the bad behavior of the few does not justify infringing the rights of the many, and that even the most distasteful speech requires protection. In response to criticism for their defense of NAMBLA, the ACLU spelled out this sentiment in a press release: “It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive.”

But apparently the right of Christians to pray outside abortion clinics is where they’ve decided to draw a line. With any luck, the ACLU won’t be the only one to change their minds. Three of the justices in the Hill majority are no longer members of the Supreme Court, and new Justices Alito and Kagan appeared skeptical of the Commonwealth’s position in oral arguments last Wednesday. Meanwhile, Justice Roberts is also expected to side with the Court’s conservative wing. But at least the Supreme Court’s reversal would be based in principle and a correct understanding of the First Amendment, not a regrettable bias against the rights of pro-life Christians,