Harry Potter and the Slippery Slope to Genocide

This paper was for my Law & Society Seminar, and is one of my favorite papers ever! When I signed up for the class, I thought it was going to be a sort of philosophy based approach to how law affected important societal issues. Instead, it turned out to be about how legal concepts were shaped and depicted by books, television, movies and the mainstream media… so more of Law & Pop Culture. I honestly almost dropped the class when I found this out, but then my professor mentioned paper topics that included Harry Potter- I was sold!
But with the tone recent political rhetoric has taken, I felt that this paper was more relevant than ever- being careful with the language we use to describe other humans is more than just “snowflakes” or “political correctness” our words can have a much greater effect than we think about when we make the racist joke, or post a meme comparing people to animals, or talk about other ethnicities “invading” or “plaguing” America. These types of language dehumanize our fellow humans and can help ease the way for serious legal and human rights violations.
So here it is: Harry Potter and the Slippery Slope to Genocide

 

Through her series of books about a boy named Harry Potter, author J.K. Rowling inspired and entertained millions of people across the globe, sending them on a journey through a world filled with magic, fantastic beasts, love, friendship, heroism, and sacrifice. But underneath these pretty pictures of Harry’s world is a seedier, dirtier vision of a world where racism abounds, and intelligent, rational creatures are enslaved, mistreated, and marginalized.

This paper seeks to explore that second world, where J.K Rowling utilizes her magical characters to show us how the dehumanization of marginalized groups can have very dangerous consequences. Part I of this paper looks briefly at the governing authority of the Wizarding world, the Ministry of Magic, and how its structure not only enables, but perpetuates the prejudices against certain groups. Part II focuses on the laws, regulations, and treatment of two human groups within the Wizarding world- Muggles and Mudbloods. Part III delves into what dehumanization really is, and how it can lead to genocide. Finally, Part IV compares instances of dehumanization within Harry Potter, with real life examples from history.

  1. Harry Potter and the Bigoted Bureaucracy

J.K. Rowling makes it clear, from the very first glimpse readers are given into the Ministry of Magic, that this is not a government that is going to concern itself with equality and justice among all creatures. In the entrance hall of the Ministry, Harry encounters a fountain that is described in the following manner:

A group of golden statues, larger than life-size, stood in the middle of a circular pool. Tallest of them all was a noble-looking wizard with his wand pointing straight up the air. Grouped around him were a beautiful witch, a centaur, a goblin, and a house-elf. The last three were all looking adoringly up at the witch and the wizard.[i]

Thus from the very first sight one would see upon entering the seat of government for the British Wizarding community, we can see the discriminatory views of the general public not only reflected, but reinforced in the very heart of the Ministry of Magic.

The prejudices against certain groups can also be seen reflected in the names of the various departments and sub-departments of the Ministry, such as sub-department The Muggle-Worthy Excuse Committee[ii], and Department for the Regulation and Control of Magical Creatures, which houses a Beast, Being, and Spirit offices, along with liaison offices for Goblins and Centaurs.[iii]

The Ministry of Magic, through their various departments, is also responsible for the passage of laws and regulations that affect the rights of various groups, despite having little to no oversight, checks, or balances to their powers. As Professor Benjamin Barton points out, the Ministry of Magic does not seem to be made up of elected officials, and is primarily an institution focused on administrative rule-making.[iv] This is echoed by Professors Paul Joseph and Lynn Wolf, who look to the fact that the Ministry of Magic seems unconcerned with any sort of fact-finding when Harry is accused of under-age magic in The Chamber of Secrets.[v]

It is also worth noting that the Ministry of Magic appears to rely heavily upon the major (and perhaps only) daily newspaper in the Wizarding community, the Daily Prophet. At times, this reliance seems to cross the line from merely being questionable cooperation on certain issues, to becoming what amounts to full-fledged government propaganda.[vi] Thus the protections against government overreach and corruption that a free and independent press can grant are conspicuously missing from the Wizarding world.

The overall picture that one gleans from J.K. Rowling’s depiction of the Ministry of Magic is not favorable: a bureaucratic nightmare without even the semblance of democratic authority, with no checks and balances, and that clearly embodies- and perhaps even encourages- the prejudices that plague the community. With a government like this, it is no wonder that there is systematic and widespread discrimination against a host of groups that are deemed as “less than.”

  1. Harry Potter and the “Less Than Humans”

It is universally accepted within the civilized world, that human beings have certain rights on account of being part of the human race. While the extent of these rights remains the subject of some debate in international law, the basic ideas that one has the right to life and liberty are not debated. Therefore it is not necessary to discuss the moral status of the human groups that are subject to discrimination within the world of Harry Potter.

There are two main human groups who are subject to a bevy of racist laws and regulations during the course of the series: Muggles and Mudbloods. Both of these groups will be examined, and compared to real-life human groups who historically suffered similar treatment.

  1. “Magic is Might”: Muggle Inferiority in the Wizarding World

When Harry is introduced to the Wizarding world, the term “Muggle” is the first to enter his new lexicon, with Hagrid explaining to him that “it’s what we call non magic folk.”[vii] More technically stated, a Muggle is a human being who neither possesses magical powers, nor comes from a Wizarding family.

Hagrid goes on to explain to Harry that the main job of the Ministry of Magic is to prevent the Muggles from realizing that witches and wizards exists, because if they knew, they’d want magical solutions to all their problems.[viii] Indeed, we see this duty laid out clearly by ministry officials when Harry is accused of performing under-aged magic the summer before his second year at Hogwarts, and he is issued the following warning: “any magical activity that risks notice by members of the non-magical community (Muggles) is a serious offense under section 13 of the International Confederation of Warlocks Statute of Secrecy.”[ix]

There is also evidence that the Ministry of Magic has no issues performing magic on unsuspecting Muggles in order to maintain their secrecy. When Harry accidentally blows up his Aunt Marge, then Minister of Magic, Cornelius Fudge tells Harry “…her memory has been modified. She has no recollection of the incident at all. So that’s that, and no harm done.” Further, in Rowling’s supplemental book Fantastic Beasts and Where to Find Them we are told that when a “rouge Welsh Green dragon” flew among a crowded beach of Muggles, Memory Charms were performed upon them in order to erase the event from their memories.[x] Both of these examples tend to show that the Ministry of Magic “demonstrate[s] little or no concern for any potential damage that Muggles might suffer as a result of exposure to magic.”[xi]

But if the Ministry of Magic is initially merely indifferent to the safety and wellbeing of Muggles, there is a radical change in this implied policy when Voldemort gains power. Again, this can be demonstrated by the fountain in the heart of the Ministry Headquarters, which is replaced by Voldemort. The new fountain bears the slogan “MAGIC IS MIGHT” and the description given of it is extremely chilling:

“It’s horrible, isn’t it?” [Hermione] said to Harry, who was staring up at the statute. “Have you seen what they’re sitting on?” Harry looked more closely and realized that what he had thought were decoratively carved thrones were actually mounds of carved humans: hundreds and hundreds of naked bodies, men, women, and children, all with stupid, ugly faces, twisted and pressed together to support the weight of the handsomely robed wizards. “Muggles,” whispered Hermione. “In their rightful place.”

Under Voldemort’s reign, the killing of Muggles is described as “becoming little more than a recreational sport.”[xii]

The ideas behind the type of dehumanization of Muggles that leads to this disregard for their lives, are evidenced by Voldemort’s insistence on teaching young wizards that “Muggles are like animals, stupid and dirty…the natural order is being reestablished.”[xiii]

  1. “Mudbloods and the Dangers They Pose to a Peaceful Pure-Blood Society”

            When Harry visits Diagon Alley in order to buy his school things, he meets his first fellow Hogwarts student- Draco Malfoy. During their initial conversation, Malfoy introduces Harry to the Wizarding bias against Muggle-borns, asking Harry if his parents were “our kind,” and opining that Hogwarts should not “let the other sort in.” Malfoy reasons that this is because ‘they’re just not the same, they’ve never been brought up to know our ways.”[xiv] Malfoy continues to display this discriminatory mindset when Harry next meets him on the train to Hogwarts, where he informs Harry that, “[y]ou’ll soon find out that some wizarding families are much better than others, Potter. You don’t want to go making friends with the wrong sort.”

Though this bias is evident from the beginning of Harry’s entrance into the Wizarding world, it is not until his second year that he encounters the term “Mudblood”, when Malfoy uses it in reference to Harry’s friend Hermione Granger. Harry can tell right off the bat that this is an insult, but his best friend Ron Weasley must explain the concept to him:

Mudblood’s a really foul name for someone who is Muggle-born – you know, non-magic parents. There are some wizards – like Malfoy’s family – who think they’re better than everyone else because they’re what people call pure-blood… I mean the rest of us know it doesn’t make any difference at all. Look at Neville Longbottom – he’s pure-blood and he can hardly stand a cauldron the right way up… It’s a disgusting thing to call someone. Dirty blood, see. Common blood.[xv]

As is apparent in Ron’s explanation, the bias is based upon the belief that having a “pure” wizard bloodline is the “ideal”, and anything less makes you “lesser”. Harry seems to have grasped this concept later in this series, as evidenced by his thoughts during an encounter between himself, Hermione, and Draco Malfoy’s father, Lucius Malfoy- “Harry knew what was making Mr. Malfoy’s lip curl like that. The Malfoys prided themselves on being pure-bloods; in other words, they considered anyone of Muggle descent, like Hermione, second-class.”[xvi]

Other evidence shows that Mr. Malfoy is not alone in his generation, in thinking lesser of Muggle-borns. Harry’s Godfather, Sirius Black explains this during a discussion of his parents, telling Harry:

…believe me, they thought that Voldemort had the right idea, they were all for the purification of the Wizarding race, getting rid of Muggle-borns and having pure-bloods in charge. They weren’t alone either, there were quite a few people, before Voldemort showed his true colors, who thought that he had the right idea about things…

But this prejudice was not of a recent invention, as Professor Binns, who taught Harry and his classmates the History of Magic explained when discussing the beliefs of the ancient Hogwarts co-founder, Salazar Slytherin, who “wished to be more selective about the students admitted to Hogwarts. He believed that magical learning should be kept within all-magic families. He disliked taking students of Muggle parentage, believing them to be untrustworthy.”[xvii] Not only did Slytherin believe Muggle-borns to be untrustworthy, he even left behind a monster, concealed within Hogwarts, so that one day his heir would “be able to unseal the Chamber of Secrets, unleash the horror within, and use it to purge the school of all who were unworthy to study magic.”[xviii]

While we can see that these attitudes are ancient in origin, in more recent times the apparent leader of anti-Mudlblood sentiment was the Dark Wizard, Lord Voldemort. Born as Tom Marvolo Riddle, to a witch mother and a Muggle father, Lord Voldemort developed a self-loathing of his parentage, which he directs against others, while concealing the truth of his own heritage.[xix] Even the name “Lord Voldemort” was a result of Riddle’s disdain for his own father, as he tells Harry:

You think I was going to use my filthy Muggle father’s name forever? I, in whose veins runs the blood of Salazar Slytherin himself, through my mother’s side? I, keep the name of a foul, common Muggle, who abandoned me even before I was born, just because he found out his wife was a witch?

When Voldemort later regains control of the Wizarding community, he preaches to his followers the importance of keeping the pure-blood families- torturing and murdering those who argue otherwise, such as Charity Burbage, the Professor of Muggle Studies at Hogwarts. Immediately before killing her, Voldemort tells his Death Eaters that:

Professor Burbage taught the children of witches and wizards all about Muggles…how they are not so different from us… Not content with corrupting and polluting the minds of Wizarding children, last week Professor Burbage wrote an impassioned defense of Mudbloods in the Daily Prophet. Wizards, she says, must accept these thieves of their knowledge and magic. The dwindling of pure-bloods… is, says Professor Burbage, a most desirable circumstance…she would have us all mate with Muggles…[xx]

Once he is in power, Voldemort utilizes the Ministry of Magic to further his agenda of oppression, instituting a Muggle-born Registration Commission, whose stated purpose is to “better understand how [Muggle-borns] came to possess magical secrets.”[xxi] The Ministry of Magic rationalizes this radical step by claiming:

Recent research undertaken by the Department of Mysteries reveals that magic can only be passed from person to person when Wizards reproduce. Where no proven Wizarding ancestry exists, therefore, the so-called Muggle-born is likely to have obtained magical power by theft or force. The Ministry is determined to root out such usurpers of magical power, and to this end has issued an invitation to every so-called Muggle-born to present themselves for interview by the newly appointed Muggle-born Registration Commission.[xxii]

According to Remus Lupin, Harry’s former Defense Against the Dark Arts professor, unless one can prove that they have at least one close Wizarding relative during their interview, they will be found guilty of having obtained their magical powers illegally and will be punished accordingly, prompting Ron to insist that he will teach Hermione his family tree so that she can pretend that she is part of the Weasley family if questioned regarding her heritage.[xxiii] Lupin also informs Harry and his friends that Salazar Slytherin’s desire to teach only those of Wizard descent is now a reality, as students must prove their heritage prior to being allowed to attend Hogwarts.[xxiv]

But discriminating against those of Muggle descent is not the ultimate goal of Voldemort, he clearly wants to exterminate all Mudbloods, and thus restore the so-called purity of the Wizarding community. Voldemort makes this clear in the following exchange with one of his Death Eaters, Bellatrix Lestrange:

“Many of our oldest families have become a little diseased over time,” he said as Bellatrix gazed at him, breathless and imploring. “You must prune yours, must you not, to keep it healthy? Cut away the parts that threaten the health of the rest.” “Yes, my Lord,” whispered Bellatrix, and her eyes swam with tears of gratitude again. “At the first chance.” “You shall have it,” said Voldemort. “And in your family, so in the world… we shall cut away the canker that infects us until only those of the true blood remain…”

III. Dehumanization: Definition and Effects

According to Professor of Philosophy David Livingstone Smith, “dehumanization is the belief that some beings only appear human, but beneath the surface, where it really counts, they aren’t human at all.”[xxv] He argues that when a group of people has been dehumanized, they are then viewed as sub-humans, or

beings that lack that special something that makes us human. Because of the deficit, they don’t command the respect that we, the truly human beings, are obliged to grant one another. They can be enslaved, tortured, or even exterminated- treated in ways in which we could not bring ourselves to treat those whom we regard as members of our own kind.[xxvi]

But if dehumanization rests on a determination that some beings are not human- what is it that does make a being human? As Australian psychologist Nick Haslam points out, “any understanding of dehumanization must proceed from a clear sense of what is being denied to the other, namely humanness.”[xxvii]

  1. Defining Humanity

Defining humanity however is no simple task. For the purposes of this paper, the more prominent philosophical theories regarding humanity will be discussed as a basis for defining humanity.

One of the earliest discussions of humanity is found in the works of Aristotle, who put forth the thesis that it is our ability to reason that distinguishes us from animals, and makes us human.[xxviii] Therefore, the opposite would define a non-human: a being that is incapable of rational thought. But Aristotle also described a middle ground, a being that is capable of some reason, but not to the level of a true human. He called these beings “slaves by nature,” saying, “someone is… a slave by nature if… he participates in reason to the extent of apprehending it in another, though destitute of it in himself… in their case…it is better to be ruled by a master.”[xxix] As we will see later, it is this middle ground that forms the basis for dehumanization.

In the Middle Ages, physician and alchemist Paracelsus put forth a new definition of what it means to be human. According to science historian William R. Newman, Paracelsus argued:

Man has both a spiritual and an animal capacity and that when one calls a man a wolf or a dog, this is not a matter of simile but of identification…when someone acts in a bestial fashion, he therefore actualizes the beast within and literally becomes the animal whose behavior he imitates.

By this definition, the defining quality of humanity is our behavior, not any single quality that we possess on our own, instead our actions define who, or what we are.

Modern philosopher Immanuel Kant however, embraced the Aristotelian theory of rational beings, stating that, “human beings have absolute worth merely because we are humans, and are altogether different in rank and dignity from…irrational animals, with which one may deal and dispose at one’s discretion.” Kant went on to say that non-human animals “have only relative worth, as means, and are therefore called things, whereas rational beings are called persons because their nature…marks them out as an end in itself.”[xxx]

These three views are only a small spectrum of the varied and tangled theoretical tapestry that attempts to depict humanity. The truth is that there is no single theory that accurately and completely defines what it means to be a human, and it is perhaps because of this that dehumanization is able to occur.

  1. Dehumanization in Practice

Dehumanization occurs when, utilizing the various theories on what it means to be human, a people group is depicted as possessing qualities associated with non-humans, or as lacking in the qualities that make one human. These depictions can occur in many different ways that will be discussed in Part IV of this paper, but this section is more concerned with the effect of such depictions, rather than the depictions themselves.

The effect of dehumanization is simple- the dehumanized is no longer seen as belonging to the human race, and is therefore not required to be treated as part of the human race. As British philosopher Aldous Huxley clearly laid it out, saying:

Most people would hesitate to torture or kill a human being like themselves. But when that human being is spoken of as though he were not a human being, but as the representative of some wicked principle, we lose our scruples…propaganda aims at one thing: to persuade one set of people that another set of people are not really human and that it is therefore legitimate to rob, swindle, bully, and even murder them.[xxxi]

Gregory H. Staton, the president and founder of the human rights organization Genocide Watch puts it even more succinctly, “one group denies the humanity of the other group. Members of it are equated with animals, vermin, insects, or disease. Dehumanization overcomes the normal human revulsion against murder.”[xxxii] Indeed, we can see evidence of this in the testimony of those who have participated in genocides, who affirm that their participation in the killing was based on a belief that those they killed were not humans, saying such things as: “they are not human beings, they are Kulaks… in order to massacre them, it was necessary to proclaim that Kulaks are not human beings,”[xxxiii] and “don’t worry, you’re not killing humans like you. You are killing some vermin that belong under your shoe.”[xxxiv]

As the sources above clearly show, the effect of dehumanization is that the dehumanized group of people is viewed as lacking in human dignity, and is put at risk for mistreatment or extermination.

  1. Harry Potter and the Path to Genocide

Reading Voldemort’s words throughout the series, it is not hard to see the parallels between Lord Voldemort and the Nazi dictator of Germany, Adolph Hitler. This view is shared by psychologist Dr. Neil Mulholland who says that the “tendency of some wizards to place a premium on pure blood (that is, on pure breeding) and treating half-bloods and Muggles as second-class citizens is an obvious parallel to our own society’s history,” and that Mudbloods and Muggles are clearly “an allegory for the anti-Semitism and racial ideology of Hitler and the Nazis.”[xxxv]

Indeed, it is not hard to find examples showing a similarity of treatment towards those deemed inferior by followers of Hitler and Voldemort, including the manner in which such treatment is justified through the dehumanization of the inferior groups. Throughout the Harry Potter series, we can see examples of the dehumanization of Muggles and Muggle-borns that closely mirror the dehumanization techniques used by Hitler and other despots throughout history.

For example, under Voldemort’s rule, Wizarding children are taught that “Muggles are like animals.” [xxxvi] Similarly, in Nazi Germany, the Jews were often compared to animals, and Nazi propaganda sometimes went even further, claiming that it “would insult the animals if we described these mostly Jewish men as beasts. They are the embodiment of the Satanic and insane hatred against the whole of noble humanity… the rebellion of the subhumans against noble blood.”[xxxvii] Likewise, during the Rwandan genocide, Tutsis were often referred to as rats and vermin, and even weeds by the Hutu regime that sought their extermination. The dehumanizing idea of weeds is illustrated in the magical context, when the head of the Muggle-born Registration Commission, Dolores Umbridge, creates propaganda leaflets titled “MUDBLOODS and the Dangers they Pose to a Peaceful Pure-blood Society,” which is described by Harry as depicting “a red rose with a simpering face in the middle of its petals, being strangled by a green weed with fangs and a scowl.”[xxxviii]

Muggles were also said to be “filthy,”[xxxix] and this too is echoed in arguments against the Jews, which the Nazis said were a “race of parasites,” who had no sense of the “purity and cleanliness” of the German culture.[xl] This idea of purity is also seen in the rhetoric of Cambodian Dictator Pol Pot, who justified genocide by stating “The party is clean. The soldiers are clean. Cleanliness is the foundation.”[xli]

Another example is seen in Voldemort’s speech to Bellatrix and the other Death Eaters, where he compares the Muggles and Muggle-borns as a disease, and as a “canker that infects us” and must be cut out.[xlii] This closely mirrors language used in the diary of Joseph Goebbels, Hitler’s Minister of Propaganda, when he described the elimination of Jews as “a task for a surgeon. One has got to cut here, and that most radically. Or Europe will vanish one day due to the Jewish disease.”[xliii] In a speech to his fellow SS officers, Hilter’s military commander Heinrich Himmler stated, “We had the moral right, we had the duty to our people to destroy this people… We do not want, in the end…to be infected by this bacillus and to die. I will never stand by and watch while even a small rotten spot develops or takes hold. Wherever it may form, we will together burn it away.”[xliv] Likewise, Pol Pot compared his enemies to a disease, saying, “what is infected must be cut out,” and that “[t]here is a sickness in the Party… if we wait any longer, microbes can do real damage.”[xlv]

Another parallel can be seen in the Muggle-born Registration Commission’s determination that one could prove they were a true Wizard by showing their family tree.[xlvi] This is very similar to the way that one proved they were not a Jew in Nazi Germany: “it was impossible to tell Jews from Germans just by looking at them… So, the guardians of racial purity decided to determine race by descent.” As Professor of Philosophy David Livingstone Smith, points out “typically, the subhuman essence (as well as the human essence) is imagined to be carried in the blood. In this framework, it is vital to prevent human blood from being polluted by subhuman blood.”[xlvii] Both the Death Eaters and the Nazis attempted to protect the “purity” of their bloodlines by utilizing family trees, which was also seen in “purity of blood” laws in fifteenth century Spain.[xlviii]

  1. Conclusion

Dehumanization is a very real and very dangerous phenomenon, one that can have catastrophic effects for those who are subjected to it. While most of us will never have to be directly confronted by these effects, J.K. Rowling’s Harry Potter series exposes us to the reality of dehumanization using fictional characters. Not only are the methods of dehumanization used by Voldemort and his followers eerily similar to those used by real-life despots, but the dangerous slippery slope of such behavior is clearly seen as the story progresses.

While the Harry Potter series has a happy ending, real-life dehumanization still occurs today in countries and communities around the world, putting millions of innocent human beings in danger.[xlix]  We can learn from Harry Potter, and stand up against dehumanization when we see it, following the advice of Minister of Magic Kingsley Shacklebolt, “We’re all human, aren’t we? Every human life is worth the same, and worth saving.”[l]

[i] J.K. Rowling, Harry Potter and the Order of the Phoenix 126 (Pottermore Press)

[ii] Id., at 129

[iii] J. K. Rowling & Newt Scamander, Fantastic Beasts and Where to Find Them  140 (Bloomsbury Publ’g 2001).

[iv] Barton, Benjamin H. “Harry Potter and the Miserable Ministry of Magic.” 12 Tex. Wesleyan L. Rev. 441 (2005).

[v] Paul R. Joseph & Lynn E. Wolf, “The Law in Harry Potter: A System Not Even a Muggle Could Love”, 34 U. Tol. L. Rev. 193 (2003).

[vi] Benjamin H. Barton, “Harry Potter and the Half-Crazed Bureaucracy”, 104 Mich. L. Rev. 1534 (2006).

[vii] J.K. Rowling, Harry Potter and The Sorcerer’s Stone 53 (Pottermore Press)[hereinafter Sorcerer’s Stone].

[viii] Id., at 65.

[ix] J.K. Rowling, Harry Potter and The Chamber of Secrets 20 (Pottermore Press)[hereinafter Chamber of Secrets].

[x] Rowling & Scamander, supra note 3, at 200.

[xi] Joseph & Wolfe, supra note 5, at 200.

[xii] J.K. Rowling, Harry Potter and The Deathly Hallows 439 (Pottermore Press)[hereinafter Deathly Hallows].

[xiii] Deathly Hallows, supra note 12, at 574.

[xiv] Sorcerer’s Stone, supra note 7, at 78.

[xv] Chamber of Secrets, supra note 10, at 115.

[xvi] J.K. Rowling, Harry Potter and The Goblet of Fire 1584 (Pottermore Press).

[xvii] Chamber of Secrets, supra note 10, at 149.

[xviii] Id., at 150.

[xix] Id., at 314

[xx] Deathly Hallows, supra note 12, at 11.

[xxi] Deathly Hallows, supra note 12, at 208.

[xxii] Id., at 209.

[xxiii] Id.

[xxiv] Id., at 210.

[xxv] David Livingstone Smith, Less Than Human 4 (Macmillan 2011).

[xxvi] Id., at 2.

[xxvii] Nick Haslam, Dehumanization: An Integrative Review, Personality & Soc. Psychol. Rev. No. 3, 255 (2006).

[xxviii] Livingstone, supra note 26, at 31.

[xxix] Aristotle, The Politics 27-39 (Start Publ’g 2013).

[xxx] Immanuel Kant, Anthropology from a Pragmatic Point of VIEW 9, 428 (Cambridge Univ. Press 2006).

[xxxi] Unpublished speech, quoted in R.J. Lifton and N. Humphrey, In a Dark Time 10 (Harvard Press. 1984)

[xxxii] Livingstone, supra note 26, at 142.

[xxxiii] Id., at 147.

[xxxiv] Id., at 152.

[xxxv] The word that shall not be named 237, 240.

[xxxvi] Deathly Hallows, supra note 12, at 574.

[xxxvii] Omer Bartov, Hitler’s Army 116, 127 (Oxford Univ. Press 1992).

[xxxviii] Deathly Hallows, supra note 12, at 249.

[xxxix] Deathly Hallows, supra note 12, at 574.

[xl] Livingstone, supra note 26, at 139.

[xli] Ben Kiernan, Blood and Soil 549-550 (Melbourne Univ. Publ’g 2008).

[xlii] Deathly Hallows, supra note 12, at 10.

[xliii] Joseph Goebbels, The Goebbels Diaries 1939-1941 at 57 (1982).

[xliv] H. Himmler, Speech By Himmler in Poznan, Poland, October 4, 1943, in Israel W. Charny, Simon Wiesenthal & Desmond Tutu, Encyclopedia of Genocide 241 (ABC-CLIO 1999).

[xlv] Livingstone, supra note 26, at 150

[xlvi] Deathly Hallows, supra note 12, at 209.

[xlvii] Livingstone, supra note 26, at 160

[xlviii] Id., at 182

[xlix] U.S. Holocaust Museum, Cases (May 4, 2015), http://www.ushmm.org/confront-genocide/cases

[l] Deathly Hallows, supra note 12, at 440.

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Let’s Talk About White Privilege Y’all

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You have White Privilege. 

Did you cringe?

Roll your eyes?

Do you feel defensive?

It’s okay, I used to have the same responses.

In fact, not too long ago an old Facebook status popped up on my memories feed dealing with “white privilege.” Oh boy, was past Deanna mad! How dare someone assume they know anything about my life? How dare they discount all my hard work to get where I am today, solely based on my skin color?

I was angry and defensive.

I was also wrong.

White privilege does not mean that a white person’s life is always easy, or that they will never have any struggles to overcome. White privilege means that society as a whole is not stacked against you, and that you are more likely to be able to overcome those struggles.

Take my story as an example: in my status, I talked about being born into poverty and spending my first few years in the Louisiana Foster Care System before being adopted. I saw this as an indication that I could not possibly be privileged in any way. What I failed to see is:

  • black children are considerably more likely to be born into poverty;
  • black children are considerably more likely to be placed into foster care;
  • black children are considerably less likely to be adopted;
  • black children are considerably more likely to age out of the foster care system and be left to fend for themselves;
  • black children are more likely to repeat the cycle of poverty.

What I failed to acknowledge, is that even at the lowest point in my life, I was still better off than a black child in similar circumstances. THAT is white privilege. 

There are many other times I have benefited from white privilege as well, such as my interactions with law enforcement. I have participated in numerous protests over the years, for a variety of causes. Never once have I doubted for even a second, that the Police were there to protect me from any violence. Never once did I worry that they were there to harm me, or to protect those who wanted to cause me violence.

When police have been called on protests that I have organized or participated in, not only was I not worried about false arrest, or undue force, but I was happy to see them. I smilingly approached them straight away, introducing myself and explaining that I was a lawyer and asking if they had any questions or concerns about our protest. I was completely secure in my innocent “whiteness” and my charming “yes, sirs” and “no, sirs.” No one would ever think me a threat. THAT is white privilege. 

All of this is not to say that I do not understand why people react negatively when they hear the words “white privilege.” All too often these words are used to shut down a conversation about important issues. But it is really where the conversation should start. As white Americans, we must realize that the acknowledgment of our privilege is essential to the discussions our country needs. Only when we are able to put aside our pride and come to the table with our black brothers and sisters with the serious intention of hearing and validating their black experience, will we be able to begin healing the racial divides in our country. Only then can we “Make America Great.”

It was a long journey for me to get to a place where I could acknowledge my privilege, and I am not proud of how I handled the conversations in the past. When the old status showed up, my mouse hovered over the “delete button.” I was ashamed. But instead of merely erasing the proof of my past ignorance and pretending it never happened, I choose to use it as a reminder of how far I have come, and how far I still have to go.

Recent Articles

I haven’t written anything on here in quite awhile, but I wanted to share some of the articles I’ve written other places in the past 6 months! Enjoy!

https://www.usatoday.com/story/opinion/2017/01/27/march-life-abortion-adoption-unwanted-neglected-abused-deanna-wallace-roe-wade-column/96957024/

http://www.washingtonexaminer.com/iowa-experience-shows-why-planned-parenthood-should-be-defunded/article/2624666

http://dailycaller.com/2017/04/25/what-louisiana-can-teach-the-nation-about-bipartisanship/

http://thefederalist.com/2016/12/13/report-abortion-industry-routinely-offers-women-grisly-unsanitary-facilities/

http://www.washingtonexaminer.com/the-considerable-legacy-of-justice-antonin-scalia/article/2617747

http://thefederalist.com/2017/02/16/science-law-side-gorsuchs-ruling-contraception-mandate/

McCullen v. Coakley: Crossing the Line on Free Speech

I was looking through some old papers I wrote in law school (study break while I prepare for the bar exam) and figured since I hadn’t posted in ages, I might as well share them with y’all!

This one was for my Constitutional Law Seminar, and was written when McCullen v Coakley was still pending at the Supreme Court! I’m happy to say that SCOTUS unanimously agreed with me, and even used many of the same quotes and cases in their opinion! Enjoy!


McCullen v. Coakley: Crossing the Line on Free Speech

In the late 1980s some pro-life groups, such as Operation Rescue, attempted to prevent abortions by several controversial methods, including instigating clinic blockades- amassing large groups of protestors that would block entrances to the clinics in order to prevent women who were seeking abortions from accessing the clinic. In some extreme and isolated cases, groups or rogue individuals would resort to violence as a means of preventing clinics and doctors from providing abortion services. In reaction, the federal government implemented laws that prohibited pro-life protestors from blocking access to clinics, or from using force or harassment against employees or patients. Some states and local governments also instituted laws, called buffer zone laws, which prohibited pro-life protestors from being within a specified distance of clinic entrances.

The Supreme Court initially upheld several buffer zones during the 1990s, but given that federal restrictions already prohibit clinic violence and blockades, along with evidence showing that these disruptive activities have all but disappeared- free speech advocates question whether the state still has a rational basis for restricting the speech of peaceful pro-life protestors, especially sidewalk counselors.

In early 2014, the Supreme Court heard arguments regarding a Massachusetts’ law which makes it a crime for speakers that are not clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.[i] The plaintiffs in McCullen v. Coakley are asking the Supreme Court to overrule the First Circuit in regards to Buffer Zone laws, on the basis that the law in question unconstitutionally restricts the protestor’s freedom of speech.

This paper examines the constitutionality of the Massachusetts buffer zone law. Part I of this paper looks at the history behind buffer zone laws. Part II focuses on the Supreme Court’s treatment the regulation of free speech in general, and Part III looks at how the Court has specifically handled previous cases regarding buffer zones. The paper concludes by arguing that the Court should uphold the free speech rights of pro-life protestors by declaring the Massachusetts law unconstitutional for violating the guarantee of free speech found in the First Amendment.

I. The History Behind Buffer Zone Laws

“We hope to put these places out of business, expose abortionists to their community, embarrass them for what they do, expose staff workers at these places and eventually shut down the whole grisly abortion industry …”- Eric Johns, protestor with Operation Rescue.[ii] 

  1. Early History

Shortly after Roe v. Wade legalized abortion in 1973, pro-life groups such as Operation Rescue utilized civil disobedience in their quest to end abortion in America.[iii] Included among their tactics were blocking abortion clinic entrances by having their activists lie down in front of them, chaining themselves to their fellow activists and to the property, and crowding patients in order to block the clinic entrances.[iv] According to data compiled by the National Abortion Federation, there were over 30,000 arrests made during these types of blockades from 1973-1994.[v]

During this time period, the streets and sidewalks outside of some of Massachusetts’ abortion clinics were the focus of similar civil disobedience protests by pro-life groups, who resorted to disruptive tactics.[vi] In 1994, a shooting at a Massachusetts clinic killed two employees and injured several others.[vii]

    2. Legislation

As a response to the disruptive behavior of some pro-life groups, in 1994 the Federal Government passed the Freedom of Access to Clinic Entrances (FACE) Act, making it a federal crime to injure, intimidate, or interfere with, someone who is seeking to obtain or provide an abortion.[viii]

In addition to the federal response, the Massachusetts legislature felt that “existing laws did not adequately safeguard clinic staff, potential patients, or members of the public,” so they addressed the situation in 2000 by passing the Massachusetts Reproductive Health Care Facilities Act (“2000 Act”).[ix]

The 2000 Act was modeled after a Colorado statute that had recently been upheld by the Supreme Court in Hill v. Colorado[x] and provided for a “floating” buffer zone that restricted pro-life activists from approaching within six feet of anyone entering or leaving an abortion clinic without that person’s consent, when within an eighteen foot radius of an abortion clinic entrance.[xi]

In 2007, the Massachusetts Legislature amended the 2000 Act to provide for a fixed thirty-five foot zone where it is unlawful to “knowingly enter or remain on a public way or sidewalk…within a radius of 35 feet from any portion of an entrance, exit, or driveway of a[n abortion clinic]”.[xii] Like the previous Act, the 2007 Act applies only during business hours, and exempts clinic employees “acting within the scope of their employment.”[xiii] The Legislature based the rationale for the revision based upon their belief that the 2000 Act was “ineffective” and did not provide adequate protection and access to abortion clinics.[xiv]

   3. Recent History

The recent history of the pro-life movement has been much more peaceful than it was during the days of Operation Rescue. The movement in general has rejected violence as a legitimate tactic and has focused their attention on more peaceful measures.[xv] As evidence of this change in tactics, is the fact that in the more than a decade of time that has passed since the 2000 Act was adopted, there have been fewer than ten arrests for clinic blockades in the United States and Canada combined.[xvi]

The focus for many pro-life advocates is the type of peaceful protesting represented by the 40 Days for Life organization, which utilizes prayer vigils as means of protest. 40 Days for Life is committed to non-violence, and before being allowed to sign up to participate in one of their prayer vigils, it is required that individuals agree to follow the rules in 40 Days for Life’s “Statement of Peace” which states the following:

  1. I will pursue only peaceful solutions to the violence of abortion when volunteering with the 40 Days for Life campaign.
  2. I will show compassion and reflect Christ’s love to all abortion facility employees, volunteers, and customers.
  3. I understand that acting in a violent or harmful manner immediately and completely disassociates me from the 40 Days for Life campaign.
  4. I am in no way associated with the abortion facility or its affiliates by way of employment, informant, volunteer, client, or otherwise.

While in front of [the] (abortion facility):

  1. I will be careful to yield to cars and pedestrians entering the parking lots.
  2. I will not obstruct the driveways, sidewalks, or doorways.
  3. I will not physically touch anyone, even in a friendly manner.
  4. I will not trespass on the private property of [the abortion clinic], which includes the parking lots, or throw anything into the abortion facility’s garbage cans.
  5. I will not litter on the public right of way
  6. I will closely attend to any children I bring to the prayer vigil
  7. I will not vandalize private or public property.
  8. I will cooperate with local city authorities.[xvii]

 

Other pro-life groups have pivoted their focus to education, such as Students for Life of America, whose annual conference is billed as “largest pro-life youth event in the world,”[xviii] or Live Action, which uses “powerful and dynamic media platforms to educate the public about the humanity of the unborn and investigative journalism to expose the threats against the vulnerable and defenseless.”[xix] Another tactic is “relocate[ing] the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and staid state legislative halls where they have enjoyed significant success.”[xx] In the legislative battle, non-profit legal groups like Alliance Defending Freedom, and Americans United for Life are leading the way with model legislation, as well as by defending states when regulations are challenged.[xxi]

Still others have moved their battle for the unborn to Crisis Pregnancy Centers, where “they offer information, ultrasounds, material support, and parent training with the aim of dissuading women from obtaining an abortion.”[xxii]  Even Operation Rescue has changed their tactics, now dedicating themselves to “using peaceful, legal means to uncover abortion clinic wrong-doing, expose it to the public, and bring the offending abortionist to justice.”[xxiii]

While there may remain a fringe element that accepts and justifies the use of force to bring about the end of abortion, the evidence shows that abortion related violence has all but ceased to be a problem, and that the movement has shifted to more peaceful means of communicating its message and achieving its goals.

II. The Supreme Court’s Standards on Free Speech

While the Supreme Court recognizes that there are clear exceptions to freedom of speech, and that “a municipality may enact regulations in the interest of the public safety, health, welfare or convenience,” the Court maintains that “these [regulations] may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion.”[xxiv]

In furthering these principles of freedom of speech, the Court has ruled multiple times that “the mere dissemination of ideas – no matter how offensive to good taste…may not be shut off in the name alone of “conventions of decency.”[xxv] Nor does “a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis” enough to justify the regulation of certain speech.[xxvi] After all, the Court argues, a “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging.”[xxvii]

The Court has also ruled that unwanted or annoying speech is not to be prohibited, saying:

The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be “annoying” to some people…[a]nd such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is “annoying” because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.[xxviii]

The Court has also recognized that certain places, are “public forums” and that the government’s ability to restrict speech there is “very limited.”[xxix] One example of this is public sidewalks, which the Court says are “quintessential” public forums, and “have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.”[xxx] The Court added, that public access to sidewalks “is not a matter of grace by government officials but rather is inherent in the open nature of the location.”[xxxi]

The Court laid out a test by which to measure governmental regulations of free speech in public forums in Ward v. Rock Against Racism, ruling:

[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.[xxxii]

It is based upon these principles and precedents that the Court first took up the issue of buffer zones, and made their initial rulings, and it is under these rules that they will eventually consider the facts in McCullen as well.

III. The Supreme Court’s Handling of Buffer Zone Laws

“[Petitioners] correctly state that their leafleting, sign displays, and oral communications are protected by the First Amendment. The fact that the messages conveyed by those communications may be offensive to their recipient does not deprive them of constitutional protection.”[xxxiii]

  1. Masden v. Women’s Health Center

At the height of pro-life civil disobedience in 1994, the Court heard Masden v. Women’s Health Center, which dealt with buffer zone regulations implemented by court-ordered injunctions.[xxxiv] Originally ordered in 1992 in response to ongoing clinic blockades, the injunction in Masden, among other things, implemented a thirty-six foot buffer zone around an abortion clinic in Florida.[xxxv] The Court upheld this provision in large part because the record showed that the protestors at this location “repeatedly had interfered with the free access of the patients and staff”.[xxxvi] Indeed, the protestors at this location went so far as to violate the district court’s original order that only prohibited blockading the entrances.[xxxvii] Additionally, this buffer zone was specifically drawn by a court order, not a general provision of law, and only targeted the specific location where the protestors had caused major problems, which the Court took into account in deciding that the buffer zone in this case was narrowly drawn to prohibit the unlawful actions.[xxxviii]

   2. Schenck v. Pro-Choice Network

At the same time the Court was hearing Masden, a similar case regarding injunctions against pro-life protestors was making its way up to the Supreme Court—Schneck v. Pro-Choice Network. In 1990, a federal court in New York issued an injunction prohibiting any picketing or demonstrations around an abortion clinic within a fixed buffer zone of fifteen feet; additionally, the district court imposed a floating buffer zone of fifteen feet from anyone entering or leaving the clinic unless the conversation was consensual in nature.[xxxix]

In keeping with their previous ruling in Masden, the Court explained that the proper test for evaluating whether an injunction was content-neutral under the First Amendment, “[is] whether the challenged provisions… burden no more speech than necessary to serve a significant government interest.”[xl] While the Court acknowledged that “leafleting and commenting on matters of public concern are classic forms of free speech that lie at the heart of the First Amendments, and speech in public areas is at its most protected on public sidewalks,” having been presented with a record of behavior by protestors similar to that in Masden, they ruled that “in some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk permissible,” and upheld the fixed fifteen foot buffer zone.[xli] While the Court upheld the fixed buffer zone, they also made it clear that the objective was to secure the sidewalks for access, noting:

We doubt that the District Court’s reason for including that provision-“to protect the right of the people approaching and entering the facilities to be left alone”-accurately reflects our First Amendment jurisprudence in this area. Madsen sustained an injunction designed to secure physical access to the clinic, but not on the basis of any generalized right “to be left alone” on a public street or sidewalk. As we said in Madsen, quoting from Boos v. Barry, 485 U.S. at 322, “as a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”[xlii]

The Court in Schenck did strike down the fifteen foot floating buffer zone, reasoning that the zone “burden[ed] more speech than is necessary to serve the relevant governmental interests. The floating buffer zones prevent defendants…from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks.”[xliii]

3. Hill v. Colorado

In 2000, the Supreme Court heard a challenge to a 1993 Colorado statute that regulated speech-related conduct within 100 feet of all healthcare facilities. The statute called for an eight foot “floating buffer zone”, meaning that while within 100 feet of any health care facility, pro-life protestors could not approach within eight feet of anyone without their permission.[xliv] The Court chose to uphold the statute, saying that it was a “content-neutral time, place, and manner regulation.”[xlv]

The Court ruled that the statute in Hill was content-neutral because it affected all health care facilities, not just ones that provided abortions, saying, “the comprehensiveness of the statute [was] a virtue, not a vice, because it [was] evidence against there being a discriminatory governmental motive,” and that “there is no more effective practical guaranty against arbitrary and unreasonable government, than to require that the principles of law which officials would impose upon a minority must be imposed generally.”[xlvi]

In finding that the regulation was “narrowly tailored,” the Court in Hill strongly emphasized that the only restriction in the Colorado statute was on unwanted, close physical approaches by protestors, while other speech was allowed within the regulated area.[xlvii] The Court recognized that “the First Amendment protects the right of every citizen to reach the minds of willing listeners, and to do so there must be opportunity to win their attention.”[xlviii] The Court believed that the provision in Hill gave pro-life protestors this opportunity by protecting all other types of communication save actually approaching someone, with the Court “reiterating that only attempts to address unwilling listeners are affected.”[xlix] Under Hill, a plethora of other alternate speech activities were available to the protestors- silent prayer, talking in a loud voice, the wearing of pro-life shirts and symbols, and the stationary holding of signs and passing out of informational leaflets.

In his dissent, Justice Scalia, in his usably acerbic style, savages the majority opinion by saying, “[h]aving deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues  and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.”[l] He goes on to argue that the regulation here, while not specifically aimed at a certain subject of communication, is still not content neutral, since it targets a specific type of communication- protests.[li]

Scalia also noted that the Court uses as its justification, “the State’s interest in protecting its citizens’ rights to be let alone from unwanted speech,” which Colorado not only never asserted, but actually explicitly rejected in its brief.[lii] Finally, he points to the language in Schenck, where the Court stated that there was no general right to be left alone.[liii]

III. How McCullen v. Coakley Crosses the Line

“Eleanor McCullen…is a 76-year-old grandmother who aims to stand on public sidewalks near abortion clinics in order to reach this unique audience at a unique moment, in a compassionate and non-confrontational way. Over the years, hundreds of women have accepted such offers of help from McCullen and other petitioners.”[liv]

  1. Reasonable Time, Place, and Manner?

In deciding the constitutionality of the Massachusetts statute at issue in McCullen v Coakley, the Court should look to its prior precedent regarding the regulation of speech in public forums, because the statute deals with speech on public sidewalks, which as previously mentioned, the Court has noted many times, are “quintessential” public forums, and “have been used for purposes of assembly, communicating thought between citizens, and discussing public questions.”[lv]

As such, the Court should apply the test from Ward v. Rock Against Racism, which requires that regulations must be content neutral, narrowly tailored, and provide ample alternative means of communication. Taking these three elements and applying them to the statute in McCullen should show clearly whether or not the statue is a permissible regulation of free speech. It should be noted that the Court places the burden of proving that the regulations are not overly burdensome on the government, not those seeking to overturn the regulations.[lvi]

2. Content Neutral

In Police Dep’t of Chicago v. Mosley, the Court struck down regulations limiting the ability to picket at schools, saying the government may not create rules favoring speech on “one preferred subject,” conversely the government also may not create rules that effectively disfavor speech on one topic.[lvii] In regards to the 2007 Act, however, both State and lower federal courts have acknowledged that the law is focused deliberately on abortion related speech, [lviii] and Petitioners argue vehemently in their brief and in oral arguments that the 2007 Act is not content neutral because it only applies to abortion clinics, and because it exempts speech by abortion clinic employees and agents.

On the first contention, the Court has previously agreed that “apart from text, the effect of a law in its real operation is strong evidence of its object,”[lix] and the record contains no evidence of any non-abortion related speech being affected by the law.[lx] The 2007 Act undeniably applies only to abortion clinics, and only during business hours, which at the very least is suggestive regarding the type of speech it is designed to affect. Many who sympathize with abortion rights have also criticized the Court’s reasoning in Hill, with some of them calling it “slam-dunk simple and slam-dunk wrong,” [lxi] and that it “showed a striking readiness to accept [efforts] to draw a facially neutral statute to achieve goals clearly targeting particular content.”[lxii]

Additionally, in his concurrence in Hill, Justice Souter reasoned “[t]he fact that speech by a stationary speaker [was] untouched by th[e] statute show[ed] that the reason…[went] to the approaches, not the content of the speech of those approaching.”[lxiii] There is no such evidence here, as the speech of all pro-life protestors within thirty five feet of an abortion clinic is restricted, regardless of whether it is consensual or not.

The 2007 Act also exempts some speakers, namely employees and agents of the abortion clinics. These people may walk freely about the thirty five foot buffer zone, interacting with patients in a way that arguably expresses the views of the clinic. The Court has previously stated exemptions from speech regulations “may represent a governmental attempt to give one side of debatable public question an advantage,”[lxiv] and that “granting waivers to favored speakers would of course be unconstitutional.”[lxv] Therefore the government may not “grant the use of a forum to people whose view its finds acceptable, but deny use to those wishing to express less favored or more controversial views.”[lxvi] By allowing clinic workers and agents (such as volunteer “escorts”) to speak to women within the buffer zone while banning pro-life activists (such as “sidewalk counselors”) seeking to speak to these same women, the 2007 Act does just that. In oral arguments, Justice Alito gave the following example showing the problem:

A woman is approaching the door of a clinic, and she enters the zone. Two other women approach her. One is an employee of the facility, the other is not. The first who is an employee of the facility says, good morning. This is a safe facility. The other one who’s not an employee says, good morning, this is not a safe facility. Now, under this statute, the first one has not committed a crime; the second one has committed a crime. And the only difference between the two is that they’ve expressed a different viewpoint. One says it’s safe; one says it’s not safe. Now, how can a statute like that be considered viewpoint-neutral?[lxvii]

Respondents argue that the statute in that instance is not concerned with the speech of the clinic agent, but only exempts their actions (i.e. escorting the woman to the clinic doors).[lxviii] This however, should be considered unpersuasive as the Court has repeatedly held that a plethora of actions are forms of symbolic speech.[lxix] In Texas v Johnson, the Court said that conduct could be viewed as speech when “[a]n intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.”[lxx] Many of the clinic escorts are volunteers, who participate for the express purpose of express purpose of symbolically expressing their permissive viewpoint on abortion, and this intent is well-known; therefore, it would be accurate to depict even the act of escorting women into the clinic as symbolic speech.[lxxi] By allowing this pro-choice, pro-clinic speech, but denying pro-life speech, the statute shows that it is not content neutral. As Justice Berzon of the 9th Circuit explained in a similar case, “distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral. It is the epitome of a content-based speech restriction.”[lxxii]

Because the law specifically targets speech at abortion clinics (which is logically going to be restricted to abortion related speech), and because it exempts the pro-clinic symbolic speech expressed by clinic employees and agents, the 2007 Act is not content neutral.

  3. Narrowly Tailored to Serve a Significant Governmental Interest

Massachusetts cites as its governmental interest in implementing these regulations, a concern for public safety and the need to secure access to legal health services, pointing to what they call a “history of violence” outside abortion clinics.[lxxiii] Indeed, the Court has long recognized that the government has the power to regulate certain speech-related activities on public sidewalks, such as violence, obstruction and intimidation.[lxxiv] However, the Court has previously invalidated speech regulations where “there are appropriate public remedies to protect the peace and order of the community if [the speech at issue] should result in disorder and violence.”[lxxv]

The record before the Court shows that under the 2000 Act, there were only a handful of arrests and even fewer prosecutions for violations outside of abortion clinics; in fact, during oral arguments, it was asserted by petitioners (without contradiction) that the last conviction of an pro-life protestor in the state was in 1997, and the federal government had never prosecuted a FACE violation in the state.[lxxvi] The national statistics echo this assertion, as between 2000-2006 evidence shows that there were only three arrests for blockading clinics, and fewer than one hundred incidents of physical violence in the entire US and Canada.[lxxvii]

Absent evidence of actual violence justifying the stricter regulations, Massachusetts points to the opinion of some law enforcement officials that the 2000 Act was difficult to enforce, and did not allow them to keep the entrances to the clinic clear.[lxxviii] This argument does not seem persuasive for two reasons- first, there were already numerous state and federal laws that could be used to either prosecute or bring civil suit against individuals if they were truly blocking access to the clinics,[lxxix] and the Court expects states to use the laws on the books to their full extent before increasing regulations[lxxx]; and secondly, the Court has previously ruled “the First Amendment does not permit the State to sacrifice speech for efficiency,” therefore the opinion that a fixed zone would be easier to enforce is not a “significant” justification.[lxxxi]

Additionally, the fact that some women might be discouraged from entering an abortion clinic by the presence of protestors is not a governmental interest at all. Abortion clinics are businesses, and businesses have historically been the target of protests and demonstrations based on the services they provide. The Court has previously stated that protestors discouraging business is not a valid justification for the government’s interference:

It may be that effective exercise of the means of advancing public knowledge may persuade some of those reached to refrain from entering into advantageous relations with the business establishment which is the scene of the dispute. Every expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests.[lxxxii]

Even if there was ample support for there being a “significant” governmental interest, the 2007 Act’s regulations are not narrowly drawn to serve the interests asserted by Massachusetts. For instance, the same interests have been cited in other cases where the regulations were much narrower- Masden and Schenck applied only to certain clinics where the record showed extraordinary circumstances necessitated them, and Hill regulated only unwanted physical approaches. The 2007 Act, however, categorically restricts all speech regardless of whether or not such speech raises any prospect of violence or obstruction. Similar to a law the Court struck down banning speech at airports, the Massachusetts regulations do not “merely regulate expressive activity … that might create problems such as congestion or … disruption” but outlaws all communications on the public sidewalks affected, even “talking and reading, or the wearing of campaign buttons or symbolic clothing.”[lxxxiii] Outlawing all these forms of communication plainly “burden[s] substantially more speech than in necessary.”[lxxxiv] As Alan Brownstein, a law professor at UC Davis School of Law, put it:

If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing.[lxxxv]

Additionally most of the evidence regarding congestion that the state uses to justify the regulations occur only at one clinic (in Boston), at one specific time (Saturday mornings).[lxxxvi] If this is a limited problem, the Court has previously advised states that an individualized approach is preferable to a broad statutory response:

Predictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter. Freedom of expression, and its intersection with the guarantee of equal protection, would rest on a soft foundation indeed if government could distinguish among picketers on such a wholesale and categorical basis.[lxxxvii]

Professor Brownstein, however, argues that this contention is doubtful, noting “[t] he Court has never prohibited government from legislating categorically or insisted that every time, place, and manner regulation has to be evaluated park by park, neighborhood by neighborhood, or street by street.”[lxxxviii]

The approach in the original 2000 Act was based off Hill, which was previously acknowledged by the Court as striking the appropriate balance between safety and free speech by limiting only unwanted close physical approaches. In Hill the Court states that “the First Amendment protects the right of every citizen to reach the minds of willing listeners, and to do so there must be opportunity to win their attention,” and reasoned that allowing protestors to attempt to engage listeners within the area of facilities protected their right and ability to speak.[lxxxix] The 2000 Act was a much narrower regulation that preserved this right held by all citizens, and is much less burdensome upon free speech.

The record in this case simply does not support Massachusetts’ assertion that the regulations in the 2007 Act serve a significant governmental interest that could not be served by the 2000 Act, limited injunctive relief at affected clinics where there is a proven problem, or some combination of other more modest regulations than the 2007 Act provides for.

       4. Ample Alternative Means of Communication

Throughout our nation’s judicial history the right to engage in free speech activities, such as asking others to willingly stop and converse, has been jealously guarded by the Court.[xc] By enacting a complete prohibition on any speech within thirty five feet of abortion clinics, the 2007 Act effectively deprives women of the “right and privilege to determine for [themselves] what speech and speakers are worthy of their attention,’[xci] and deprives pro-life protestors of their rights without allowing them ample alternative means of communication.

Unlike the regulations in Hill, which prohibited only one type of communication and left all other methods untouched, the 2007 Act indiscriminately bans all communication within the thirty five foot zone. Respondents argue that the pro-life protestors have ample alternative methods of communication… outside the buffer zone.[xcii] The Court has already excluded this as an argument, stating that “[o]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”[xciii] Under the 2007 Act, any and all methods of communication by pro-life protestors is forbidden, including entering the zone while merely wearing a pro-life shirt or symbol, engaging in non-obstructive peaceful prayer within the zone, or entering into a conversation regarding abortion with a willing participant. The fact that the protestors can engage in these methods of communication in another place is not evidence of ample means of alternate communication.

Additionally, the Court has previously recognized that “one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse,’ and that “the First Amendment protects [citizens’] right not only to advocate their cause, but also to select what they believe to be the most effective means for so doing.” [xciv]

To this end, Petitioners’ desire to exercise their right to free speech by speaking one-on-one to the women who are potentially seeking abortions, in a compassionate and non-confrontational manner, in order to provide them with information on resources that may ease their worries about continuing their pregnancy to its natural conclusion.[xcv] They very logically argue that the effectiveness of their advocacy relies largely on their ability to speak in a normal conversational tone to women as they walk along the public sidewalks adjacent to an abortion clinic, and that the thirty five-foot buffer zones enacted by the 2007 Act not only do not allow them to engage consensual conversations within the zone, but also hinder their attempts to engage women already within the zones in conversations.[xcvi] The alternative they are left with is standing thirty five feet away, yelling at women entering the clinic, which is arguably extremely damaging to their message of compassion and non-confrontation.

The speech regulations contained in the 2007 Act amount to a total prohibition of speech, and the definition of a prohibition allows for no actual alternative method of communication, save going outside the zone being regulated. Even when they go outside the zone, the message of pro-life protestors is considerably less effective in nature, and is therefore diminished by the so-called alternative methods of communications Massachusetts would allow them.

III. Conclusion

While in the past the Supreme Court has upheld some forms of buffer zones, the jurisprudential precedent shows that they have taken a very limited approach that seeks to proactively protect the rights of pro-life protestors, and these previous Supreme Court decisions are straightforwardly distinguishable from the facts in McCullen v. Coakley.

The Supreme Court’s guidelines regarding when public speech is allowed to be regulated is not upheld by the facts in McCullen. The 2007 Act’s targeting of speech only outside of abortions clinics, combined with the exemptions that allow symbolic speech favoring abortion clinics demonstrate that the regulations are not content neutral. The historical evidence does not show that there is a significant governmental interest requiring the level of regulations contained in the 2007 Act, nor that the prior laws were insufficient to handle any issues Massachusetts abortion clinics were facing under the 2000 Act. Finally, the complete prohibition included in the 2007 Act emphatically precludes any alternative methods of communication, save going somewhere else. Because of the failure of the Massachusetts law to meet the standards set by prior Court precedent, the Court should overrule the First Circuit, and uphold the free speech rights of the pro-life protestors.

 

NOTES:

[i] McCullen v. Coakley, 708 F.3d 1 (1st Cir. Mass. 2013), cert. granted, 2013 U.S. LEXIS 4811 (U.S. 2013).

[ii] Clinics Prepare for Operation Rescue – Again, Associated Press, July 05, 1993 available at: http://www.holysmoke.org/fem/fem0249.htm.

[iii] Operation Rescue, History, (2014),  http://www.operationrescue.org/about-us/history/.

[iv] Operation Rescue v. Women’s Health Ctr., 626 So. 2d 664 (1989).

[v] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.

[vi] Operation Rescue, 626 So. 2d 664, at 664-65.

[vii] McGuire v. Reilly, 260 F3d 36,39 (1st Circ. 2001).

[viii] Title 18, U.S.C., §248.

[ix] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[x] Hill v. Colo., 530 U.S. 703 (U.S. 2000).

[xi] Mass. Stat. 200, Ch. 217.

[xii] Mass. Gen. Laws Ch.266, § 120E½ (2012).

[xiii] Id. §120E½(b)(1)-(4).

[xiv] Brief of Petitioner-Appellant at 10-12, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[xv] See generally: Violence: Why It Won’t Work, in Joseph M. Scheidler, Closed (Tan Books & Pub 1993).

[xvi] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.

[xvii] 40 Days for Life, Statement of Peace, available at: http://vigilcalendar.com/sb/login/login_page.

[xviii] Students for Life of America, About Us, available at: http://studentsforlife.org/about-us/.

[xix] Live Action, About Live Action, available at: http://www.liveaction.org/about/.

[xx] Joshua C. Wilson, The Anti-abortion Movement Has Changed. Here’s What that Means for Abortion Clinics., Wash. Post, Jan. 16, 2014 available at: http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/16/the-anti-abortion-movement-has-changed-heres-what-that-means-for-abortion-clinics/

[xxi] Id.

[xxii] Id.

[xxiii] Operation Rescue, History, available at: http://www.operationrescue.org/about-us/history/.

[xxiv]Schneider v. State 308 U.S. 147, 160 (1939).

[xxv] Papish v. Board of Curators of Univ. of Missouri, 410 U.S. 667, 670 (1973).

[xxvi] Texas v. Johnson, 491 US, 397, 409 (1989).

[xxvii] Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

[xxviii] Coates v. Cincinnati, 402 U.S. 611, 616 (1972)

[xxix] US v. Grace, 461 US 171, 177 (1983).

[xxx] US v. Kokinda, 497 US 720, 743 (1990) (quoting Hague v. Committee for Industry Organizations, 307 US 496, 515 (1939), opinion of Roberts, J.)

[xxxi] Id.

[xxxii] Ward v. Rock Against Racism, 491 U.S. 781, 791(1989).

[xxxiii] Hill v. Colorado, 530 US 703, 715 (2000).

[xxxiv] Madsen v. Women’s Health Ctr., 512 U.S. 753 (U.S. 1994)

[xxxv] Id.

[xxxvi] Id., at 769.

[xxxvii] Id., at770.

[xxxviii] Id.

[xxxix] Schneck v. Prochoice Network, 519 US 357 (1997).

[xl] Id., at 374.

[xli] Id., at 377. The record further showed that “protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots…followed and crowded people right up to the doorways of the clinics (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside,” and even harassed the police. Id., at 379.

[xlii] Id., at 383.

[xliii] Id., at 377

[xliv] Colo. Rev. Stat. §18-9-122(3) (1999).

[xlv] Hill v. Colo., 530 U.S. 703, 719 (2000).

[xlvi] Id., at 731.

[xlvii] Id., at 726-7.

[xlviii] Id., at 723.

[xlix] Id., at 727.

[l] Id., at 741-42.

[li] Id., at 746-48.

[lii] Id., at 750.

[liii] Id., at 751.

[liv] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[lv] US v. Kokinda, 497 US 720, 743 (1990).

[lvi] See Board of Trustees of New York State University v. Fox, 492 US 469, 480 (1989); US v. Playboy, 529 US 803, 816 (2000).

[lvii] Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101-2 (U.S. 1972).

[lviii] Pet. App. 166a, 113a, 117a.

[lix] Church of Lukumi Babalu Aye Inc. v. City of Hialeah, 508 US 520, 535 (1993)

[lx] Brief of Petitioner-Appellant at 24,  McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[lxi] Lawrence Tribe, quoted in ColloquiumProfessor Michael W. McConnell’ Response, 28 Pepp. L. Rev. 747, 750 (2001).

[lxii] Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737 (2001)

[lxiii] Hill at 738.

[lxiv] City of Ladue v. Gilleo, 512 US 43, 51 (1994).

[lxv]Thomas v Chicago Bank District, 534 US 316, 325 (2002).

[lxvi] Mosely, 408 US at 96.

[lxvii] MCCULLEN v. COAKLEY, The Oyez Project at IIT Chicago-Kent College of Law,   http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 (last visited March 22, 2014)

[lxviii] Id.

[lxix] See generally: United States v. O’Brien, 391 U.S. 367 (U.S. 1968) (burning of draft card); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (U.S. 1969) (wearing of armbands); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (U.S. 1984) (sleeping overnight in a public park); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning); Barnes v. Glen Theatre, 501 U.S. 560 (U.S. 1991) (nude dancing).

[lxx] Texas v. Johnson, 491 U.S. 397, 404 (1989).

[lxxi] Ilissa Gold, My First Morning (Of Many) As a Clinic Escort, Daily Kos, Feb. 18, 2011, available at: http://www.dailykos.com/story/2011/02/18/943882/-My-First-Morning-Of-Many-As-A-Clinic-Escort (last visited Mar. 14, 2014).

[lxxii] Hoye v. City of Oakland, 653 F.3d 835, 851 (9th Cir. 2011).

[lxxiii] Brief of Petitioner-Appellant at 3, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[lxxiv] See Ward, 491 U.S. 781, (1989).

[lxxv] Kunz v. People of NY, 340 US 290, 294 (1951).

[lxxvi] MCCULLEN v. COAKLEY, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2010-2019/2013/2013_12_1168 (last visited March 12, 2014).

[lxxvii] Nat’l Abortion Fed’n , Incidents of Violence and Disruption against Abortion Providers in US & Canada, , (2012), http://www.prochoice.org/about_abortion/violence/documents/Stats_Table.pdf.

[lxxviii] Brief of Respondent, at 10, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[lxxix] See, e.g., Mass. Gen. Laws Ch. 266, § 120E1/2(e) (obstructing, detaining, hindering, impeding, or blocking a person’s entry to abortion clinic); id. § 120E (obstructing entry to medical facilities); 18 U.S.C. § 248(a)(1) (using force, threat of force, or physical obstruction to injure, intimidate, or interfere with any person obtaining or providing reproductive health services); Mass. Gen. Laws Ch. 265, § 13A (assault and battery; enhanced sentence if perpetrator knows victim is pregnant); Id. ch. 272, § 53(b) (disturbing the peace). State and federal laws also specifically prohibit impersonating a police officer–a form of misconduct advanced as a justification for the 2007 Act. See Id. Ch. 268, § 3; 18 U.S.C. § 912; JA 124, See 18 U.S.C. § 248(c)(1) (permitting any person seeking to provide or obtain reproductive health services to seek injunctive relief, attorneys’ fees, and compensatory and punitive damages); id. § 248(c)(2)-(3) (permitting federal and state attorneys general to seek injunctive relief, civil penalties, and compensatory damages on behalf of aggrieved persons); Mass. Gen. Laws Ch. 266, § 120E (permitting medical facilities to obtain injunctive relief and compensatory and exemplary damages against persons obstructing entry); Id. Ch. 12, § 11H (permitting state attorney general to obtain injunctive relief against private persons who intimidate, interfere with, or coerce a person seeking to exercise rights protected by federal or state law).

[lxxx] Riley v. National Federation of Blind, 487 US 781, 795 (1988) (“North Carolina has an antifraud law, and we presume that law enforcement officers are ready and able to use it”).

[lxxxi] Id.

[lxxxii] Thornhill v. Alabama, 310 U.S. 88, 104 (1940).

[lxxxiii] Board of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987).

[lxxxiv] Ward, 491 US at 799.

[lxxxv] Alan Brownstein, Recapping McCullen V. Coakley Oral Argument, ACS Blog, Jan. 22, 14 at available   at https://www.acslaw.org/acsblog/recapping-mccullen-v-coakley-oral-argument.

[lxxxvi] Brief of Petitioner-Appellant, at 13, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[lxxxvii] Police Dept of Chicago v. Mosely, 409 U.S. 92, 100-101(1972).

[lxxxviii] Brownstein, Supra.

[lxxxix] Id. at 723.

[xc] Cantwell v Connecticut, 310 US 296, 309 (1940).

[xci] Citizens United v. FEC, 558 US 310, 340-41 (2010).

[xcii] Brief of Respondent, at 49-50, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[xciii] Schneider, 308 U.S. at 163.

[xciv] Meyer v. Grant, 486 US 414, 424 (1988).

[xcv] See generally, Brief of Petitioner-Appellant, McCullen v. Coakley, No. 12-1168 (U.S.  May 25, 2013).

[xcvi] Id.

Myths about Roe v. Wade

Hobby Lobby Day!

SCOTUS

As both an active member of the pro-life movement and a law student, I am frequently confronted with the fact that the vast majority of activists on both sides of the abortion debate have many misconceptions about what Roe v. Wade actually says about the legality of abortion. Most of this arises from the fact that they have not read the case themselves, or if they did read it, they were unable to understand it due to a lack of legal training. My goal is to attempt to clear up four of the most common myths surroundingRoe v. Wade, and the legal state of abortion in general, so that our conversations about the issue will be more informed going forward.

Myth #1: Abortion is a “Fundamental Right”

Many abortion supporters, including elected officials and leaders of pro-abortion organizations, will tell you that the Supreme Court declared abortion a fundamental right in Roe v. Wade, but this simply is not true. In fact, no majority opinion by the Supreme Court has ever declared abortion a fundamental right.

In Constitutional Law, there are three levels of “judicial scrutiny” the Court will use when deciding cases, these levels are: (1) Strict Scrutiny, (2) Intermediate Scrutiny, and (3) Rational Basis Scrutiny. When a fundamental right is at issue in a case, the Court must use the highest level of scrutiny, Strict Scrutiny. Under Strict Scrutiny, the Court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy being challenged.

While much of the language used in Roe seemed to imply Strict Scrutiny, the Court did not actually declare the right fundamental, and subsequent cases prove this. Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts, though often with contradictory results.

For example, the Court struck down all abortion regulations inPlanned Parenthood v. Danforth (1976), City of Akron v. Akron Center for Reproductive Health, Inc. (1983), and Thornburg v. American College of Obstetricians and Gynecologists (1986), but upheld similar and further regulations in Harris v. McRae (1980), Rust v. Sullivan(1991), Connecticut v. Menillo (1975), and Bellotti v. Baird (1976).[1]

In these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburgcalled abortion a “fundamental right,” the Court did not apply Strict Scrutiny.[2] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis, again ignoring the usual standard of review for “fundamental rights”.[3]

Finally, in 1992’s Planned Parenthood v. Casey, the Court clearly ruled that abortion is not a fundamental right by adopting an Intermediate Scrutiny approach known as “Undue Burden.” Instead of the government having to prove a “compelling interest”, the burden of proof was now placed on those challenging the law, who must prove that the law places an “Undue Burden” on a woman seeking an abortion. Since then, the “Undue Burden” standard has been used in every case dealing with abortion to be heard before the US Supreme Court, clearly showing that abortion is not a fundamental right.

Myth #2: Roe legalized abortion only in the first three months.

This myth was actually repeated by my Constitutional Law professor last year, until I corrected him, and is so pervasive that the vast majority of Americans genuinely believe that it is true. In fact, when polling is done regarding public opinions about Roe,many of the pollsters frame their question in these terms: “In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?”[4]

The actual ruling in Roe split the ability of governments to regulate abortion into three categories, based on the medical classification of trimesters. Under this trimester framework, the Court banned any regulations during the first trimester, allowed minimal regulations related to maternal health in the second trimester, and allowed most regulations in the third trimester.[5] In short, the Court actually legalized all abortions prior to viability,which it placed at about 28 weeks, which is about seven months, not three months.[6]

However, in both Roe and the companion case Doe, the Court ruled that even after the child is viable, there must be a “health exception” that allows the mother to abort for almost any reason:[7]

“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases … the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”

Under these factors, pro-life legal scholars have pointed out that since the abortionist is the one who determines whether a woman’s health is at risk, the “definition of a woman’s health is so broad that there would never be a time when a woman could not find an abortionist willing to perform an abortion.”[8]

Myth #3: Overturning Roe will put women in jail.

Another common myth is that women would be thrown in jail for getting an abortion if Roe was overturned. However, Roe’s core holding is that abortion cannot be banned by the state, so overturning it would not result in a nation-wide ban on abortion; it would merely return the issue for the states to decide for themselves. In order for a nation-wide ban to occur, the Court would have to go a step further than just overturning Roe, and hold that the preborn are “persons” under the 14th Amendment, and therefore abortion is a violation of the Due Process Clause. Unless the Supreme Court did this in addition to overturning Roe, abortion would remain legal unless a state chose to expressly ban it.

While it is true that some states, like my home state of Louisiana, have trigger laws that would automatically ban abortion if Roe is overturned, most of them do not. The reality of a post-Roe America would most likely mirror the level of regulations that exist in the present day- conservative states with many current regulations might chose to ban abortion, more liberal states would leave their regulations the same and still allow abortions to continue as before.

Even in those states that would chose to  ban abortion, it would be very unlikely that women would be sent to jail for getting an abortion. Looking back pre-Roe, when most states banned abortion, there are only two known cases in which a woman was charged in any State with participating in her own abortion- one in Pennsylvania in 1911, and one in Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

In reality, the woman was typically treated as a second victim of abortion, the real target of these laws, and of the criminal prosecution that resulted from them, was the abortionist. Prosecuting a woman as an accomplice to the abortionist raised serious evidentiary problems that made it counterproductive- the testimony of an accomplice alone is not enough to meet the burden of proof in a criminal case, and the accomplice’s testimony must be corroborated by another source. It was difficult to prosecute abortionists under this requirement, and in order to convince women to testify against the abortionist, prosecutors had to promise them that they would not be charged for admitting to an abortion.[9]

Myth #4: Abortion bans were created to protect women because abortion was dangerous.

In their oral arguments before the Court, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman from a dangerous procedure; but this could not be further from the truth.  In fact, in the opinion Justice Blackmun wrote in Roe, he acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on abortion, in which the AMA called abortion an ”unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10] The result of this, which has been called “The Physician’s Crusade against Abortion”, was the implementation of many of the same abortion bans that were struck down by Roe nearly a hundred years later.

 Footnotes

[1] Planned Parenthood v. Danforth, 428 U.S. 52 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983);Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Harris v. McRae, 448 U.S. 297 (1980); Rust v. Sullivan, 500 U.S. 173 (1991); Connecticut v. Menillo, 423 U.S. 9, 10 (1975); Bellotti v. Baird, 428 U.S. 132 (1976).

[2] Thornburg, 476 U.S. at 772.

[3] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[4] Harris Polling Question from The Wall Street Journal http://online.wsj.com/news/articles/SB114668092648642849

[5] Roe, 410 U.S. 154-6

[6] Id., at 160.

[7] Doe, 410 U.S. at 180; Roe, 410 U.S. at 149.

[8] Clarke Forsythe et al., Constitutional Law & Abortion Primer, 10 (William L. Saunders ed., Americans United for Life 2011) available at: http://www.aul.org/primer/.

[9] Forsythe, Clark, Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade. http://www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/

[10] Roe, at 141-2.

****I’ve done a shorter version of this post as part of my series about the Viability of Roe, but I wanted to update it and expand it for a full length article for Live Action. You can also read it here on their site.*****

PRO-LIFE VICTORY IN LOUISIANA!

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Today was an amazing day! I am so proud to have been a part of this amazing moment in Louisiana history!

The House of Representatives voted to send HB 388 to Governor Bobby Jindal for signature! The vote was a bipartisan 88-5! When Rep. Katrina Jackson called for cosponsors to come stand with her, the response was overwhelming, with almost the entire house floor empty! Tears came to my eyes as she urged for final passage of the Unsafe Abortion Protection Act!

I was honored & humbled to have been recognized on the floor for my efforts to get this bill passed by Reps Jackson & Hoffman! I was also thankful to be awarded some delicious Pro-life brownies by Rep. Burns after passage! All in all one of the best days of my life! 

I also testified on HB 305 & HB 1262 (formerly HB 727) this morning!

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HB 388, HB 305, and HB 1262 are the work of the amazing Bioethics Defense Fund! It’s been an honor to work with them on these important pieces of legislation! Learn more about this great pro-life group and their groundbreaking work at their website: http://www.bdfund.org/

Protect LA Women

hb388 senate Health and Welfare

BDF Attorney and HB388 drafter, Dorinda Bordlee, State Senator Elbert Guillory, and Me on the Senate Floor just before HB388 was passed

BDF Attorney and HB388 drafter, Dorinda Bordlee, State Senator Elbert Guillory, and Me on the Senate Floor just before HB388 was passed

Testimony today on HB388 in the Senate Health & Welfare Committee:

My name is Deanna, and I am here to speak in support of HB388. I am a resident of Baton Rouge, a law student at LSU, and I am here today on behalf of Law Students for Life of America- a national organization of future lawyers dedicated to protecting life.
Ladies and Gentlemen of the Committee, you will hear today that these regulations are medically unnecessary, but this simply isn’t true. The proposed regulations are common sense regulations that would protect the health of women who undergo abortion procedures in Louisiana. These regulations are needed in Louisiana- and this need is evidenced by the history of violations and complaints against Louisiana’s abortion clinics.
Causeway Medical Clinic, in Metairie, has been cited for violations 14 times since 2007. These violations include failing to determine viability of the child, not monitoring patient’s vital signs during the abortion procedure, unsanitary conditions, expired medications and supplies being used, and failing to ensure parental consent for a minor’s abortion.
Bossier City Medical Clinic in Bossier City has been cited for violations 8 times since 2004, including failing to obtain a Controlled Dangerous Substances license and DEA registration, not monitoring patient’s vital signs after being given narcotics, and unsanitary conditions.
Women’s Health Care Center in New Orleans has been cited for violations 12 times since 2004, including failing to report abortions as required by law, failure to ensure informed consent, missing and incorrect records, and failing to inspect equipment annually.
Hope Medical Clinic, in Shreveport, has been cited 13 times since 2004, including reusing single use equipment, allowing noncertified individuals to administer narcotics, failure to monitor patient’s vital signs after being given narcotics, failing to meet reporting requirements under the law, improper storage of narcotics, failure to maintain sterile environment, and failure to ensure informed consent.
The Delta Clinic, in Baton Rouge, has a history of botched abortions, unsanitary conditions, and has been cited for violations 18 times since 2006. Additionally, the Delta Clinic previously employed a woman by the name of Eileen O’Neill, who after leaving the Delta Clinic, surrendered her medical license due to Post Traumatic Stress Disorder. Ms. O’Neill went on to practice medicine without a license, in the Philadelphia abortion clinic of Kermit Gosnell, who was convicted of murdering innocent children who were born as a result of botched abortions, and causing the death of and countless injuries to, the women who visited his clinic.
The women of Louisiana deserve to be protected when they walk into an abortion clinic, and this regulation would do much to assure their safety.
From a legal standpoint, this regulation will not violate the standards set up by the Supreme Court. In the landmark case, Planned Parenthood v Casey, the Supreme Court noted that “not all burdens on the right to decide whether to terminate a pregnancy will be undue,” and acknowledged that a state’s interests in protecting unborn life, in preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense, and promoting respect for human life more generally, are strong enough to warrant restrictions prior to viability, even if those regulations might make abortion more difficult or expensive to obtain. The 5th Circ. Recently upheld similar regulations in TX.
Requiring doctors to obtain admitting privileges at local hospitals would serve to protect the health and safety of Louisiana women, and since they do not violate the principles the Supreme Court follows in determining whether an abortion regulation is an “undue burden”, I ask you to support this bill.

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HB 388, HB 305, and HB 1262 are the work of the amazing Bioethics Defense Fund! It’s been an honor to work with them on these important pieces of legislation! Learn more about this great pro-life group and their groundbreaking work at their website: http://www.bdfund.org/