Lifewatch: Some News You Might Have Missed

Headline: Supreme Court Strikes Down Bans on Anti-Abortion Demonstrators. Subheads: Restraints Said to “Sweep More Broadly Than Necessary.” High Court Leaves Only One, Narrow Restriction in Florida Case.

These were not the headlines you were likely to have read on July 1 if you read the Washington Post or New York Times, or almost any other newspaper that reported the decision of the Supreme Court in Madsen v. Women’s Health Center. That is, you were not likely to hear that the opponents of abortion had been victimized, or restricted in their First Amendment rights, at the hands of a local court in Melbourne, Florida. What you were more likely to hear was that the Supreme Court administered yet another rebuff to zealots in the pro-life movement by upholding the decision of a court to impose a zone of 36 feet from the entrance to an abortion clinic.

But any minimally attentive reading of the case would have revealed that it was the demonstrators who had suffered most of the harassment and restrictions, through measures that the Supreme Court judged now to be quite excessive. In writing for the majority on the Court, Chief Justice Rehnquist sought to uphold the injunctions that seemed to impose only the most limited restraints, which were necessary in preserving access to the clinics. And so he and his colleagues sustained a zone of 36 feet that would cover the public paths to the entrance and driveway of the clinic. The judges would also uphold restraints on the noise generated by a quarrelsome crowd outside the clinic. Yet, Rehnquist and his colleagues refused to uphold a zone of 36 feet that covered private property adjoining the clinic: Since it was not necessary to set foot on this private property in making one’s way to the clinic, there was no need for the law to spill over, with its injunctions, to cover property and paths that were not strictly necessary for access to the clinic.

Even more excessive, in the judgment of the Court, were the injunctions that spread, not 36 feet, but 300. In one measure, the court in Florida barred the use of posters by the pro-life demonstrators, bearing “images observable” (presumably, images of babies) within 300 feet of the clinic. The judges also sought to bar the demonstrators from “stalking” or “shadowing” the clients of the clinic within a range of 300 feet. And with that magic number the judges also sought to create a broad zone, to keep demonstrators further away from the homes of the abortionists.

As Rehnquist explained, the problem of “images observable” could be dealt with through the expedient simply of drawing the curtains within the clinic. A “remedy” did not require a court to impose restrictions on the kinds of signs that people were free to carry in public places. As for the matter of “stalking,” there was no evidence that the demonstrators had been menacing or even rude. The injunction forbade then, in its sweep, even the most courteous attempt to pass out leaflets, and it was hard to find any comparable restriction in the American law (even in the restraints outside of polling places). As Rehnquist remarked, it was quite “difficult . . . to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be.” And in the cases of demonstrations outside the homes of abortionists, the injunction had swept, once again, far beyond anything that the court had permitted in the past, to protect people in the privacy of their homes. A ban of 300 feet would move beyond the home and its vicinity; it would bar the demonstrators from walking the public streets through a residential neighborhood. That prime defender of abortion, and that inveterate liberal, Justice Brennan, had made it known, several years earlier, that he regarded a restriction of that kind as quite untenable.

How is it that these parts of the case should have eluded some of the most seasoned reporters who cover the Supreme Court for our major newspapers? Did they encounter the hazards of speed-reading? Or was it a malady rather more familiar: Might it be, once again, that the reporters who had the assignment of instructing the public on the workings of the Court had decided, with their exquisite sympathy, to shelter from the public those pieces of information that may be altogether too unsettling for the public to hear? Too unsettling? — or perhaps too discordant with the story line on abortion that the reporters had labored so hard to preserve.

But if the opinion of the Chief Justice was far too complicated or jarring to present to the public, then it was utterly beyond reckoning that the reporters would seek to convey the news that was uncovered in Mr. Justice Scalia’s dissenting opinion. For in that case, the headlines would have required the whimsy of a cartoon in the New Yorker: “Soldier, Statesman, Patriot, Author—but Still a Disappointment to His Mother.” In this case: Court Throws Out Most Restrictions on Anti-Abortion Demonstrators. Keeps Only Narrowest Measures — But Those Never Imposed Before Even on the Most Violent Picketers or Civil Rights Demonstrators.

As Scalia noted, the injunctions that were imposed in Florida represented a second wave or a “broadening” of the original injunctions. That second round of injunctions came about after the clients had complained that they were still being obstructed in their access to the clinic. But as Scalia pointed out, the demonstrations were attended by no violence or physical obstruction. Nor was there any evidence that the congestion of traffic outside the clinic resulted from anything more than . . . an increase in traffic. There was no evidence of any intention on the part of the demonstrators to create disruption or disorder.

In a case in the early 1980s, NAACP v. Claiborne Hardware, the Court had encountered a boycott led by black activists. One leader warned blacks in the community that, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The threat was followed — and given credence — by a series of reprisals carried out against people, who had not observed the boycott: Shots were fired at some houses, bricks were thrown through windows, and one garden was damaged. Some people, as Scalia recalled, were “beaten, robbed, and publicly humiliated (by spanking).” These incidents led to broad orders by a court to restrain the violence and the verbal threats. And yet, when the case arrived at the Supreme Court, the judges showed a fastidious concern for a “precision of regulation.” The jurists demanded now the most painstaking effort to insure that the restraints on expression were not imposed on people who were utterly innocent of the violence and the threats, which had brought forth the injunctions.

But as Scalia showed, that kind of precision was notably wanting in this case. The Court had apparently lost its passion for a demanding precision of regulation when it came to demonstrators who were patently non-violent, but conspicuously pro-life. People were caught on video tape, quite uncomprehending, not knowing why they were being restrained by the injunctions, when they themselves had not been part of any group which had been guilty in the past of obstructing access to the clinic. The only connection they bore to those earlier demonstrators was that they too were expressing their opposition to abortion. As Scalia observed, they were being restricted for nothing other than the content of their speech, an arrangement that the Court has treated in every other instance with the deepest suspicion — and with the demand for the most compelling justification.

Still, the restriction, focused on pro-life demonstrators, was simply an instance of that state of affairs in which courts deal with vexing cases through injunctions. Inevitably, a court operating through its injunctive powers finds itself fashioning remedies that are focused, in a one-sided way, on the party that becomes the target of the complaint. But for Scalia, that was yet another point of warning about the hazards of being ruled by courts without the discipline of a statute: A court may impose restrictions of speech far more stringent than anything a legislature was likely to enact, for a legislature would have to pass its measures in a form that would apply, in principle, to all kinds of groups — and for that reason, the legislation would excite the opposition of every group that might see its freedom threatened.

And yet, for Scalia, the melancholy lessons ran even deeper: Once again, it turns out that principles long settled by jurists may be upended overnight if they get in the way of defending “the right to an abortion.” Scalia could aptly recall to the Chief Justice his own words, joined by Justice O’Connor, eight years ago, in Thornburgh v. American College of Obstetricians and Gynecologists:

This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving [the] state regulation of abortion.


Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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