Abortion and Speech: A Comment

Abstract

This comment examines recent and pending decisions from the United States Supreme Court on abortion issues through the lens of other constitutional rights, namely freedom of speech. For example, the recent Rust v. Sullivan opinion upheld a wholesale federal assault upon the notion of “choice” and “informed consent” by upholding DHHS’s regulations which ban informative and informed discussions of the abortion option in Title X clinics. The result is a physician-patient relationship in Title X clinics that government requires to be half-truthful and inherently misleading. Moreover, the federal government itself was responsible for the creation of that trusting, dependent relationship, and the Title X regulations pervert that relationship at the expense of the woman who is effectively invited by the government to walk into the Title X clinic.

Similarly, the next major abortion controversy to be decided by the Court may well face the same lack of perspective. Although Bray v. Alexandria Women’s Clinic is about abortion protests, it is not being treated as a case about the law of abortion or the law of protests. The case will not be won or lost on the basis of the constitutional doctrines of privacy under the fourteenth amendment. Instead, the primary issue focuses not on the constitutional right to obtain an abortion but to engage in interstate travel. It would be a denial of reality for the Court to hold that criminal conduct aimed at preventing the exercise of abortion rights is not imbued with sufficient federal interest to warrant the invocation of section 1985(3). It seems unlikely that a majority of the Court will perceive that the case has profound implications for the right to abortion.

Keywords: Abortion rights, Title X, First Amendment, Supreme Court