Justice Scalia and Abortion Speech

Abstract

This symposium contribution examines Justice Scalia’s legacy with regard to abortion speech - communications about or concerning the recognition, scope, or exercise of the right to abortion. Among Justice Scalia’s most high-profile opinions are his concurrences and dissents in cases involving anti-abortion protesters and sidewalk counselors near abortion clinics. In those opinions, Justice Scalia demonstrated a strong commitment to public free speech rights and was a passionate critic of what he viewed as discrimination against anti-abortion speech. Justice Scalia’s abortion clinic opinions highlight a number of central free speech principles – the need to preserve access to public fora, the requirement of content neutrality, and the perils associated with prior restraints on speech among them. However, in other cases decided during his tenure, Justice Scalia was willing to allow local, state, and national governments to regulate significant aspects of abortion discourse – primarily, although not exclusively, when the speech in question communicated pro-choice ideas or facilitated abortion rights. In cases involving residential picketing, mandatory abortion disclosures by physicians, and funding conditions, Justice Scalia was far less concerned about the effect speech restrictions might have on abortion speech or abortion rights. Whether this was owing to his own biases concerning the abortion right or principled views regarding things like residential privacy, management of governmental resources, and the limited speech rights of licensed physicians is impossible to know for certain. However, these cases significantly complicate his legacy with regard to abortion speech and abortion discourse. In this as in other areas, one might say Justice Scalia was a traditionalist. He generally supported the free speech rights of abortion speakers in traditional public fora, but was not inclined to recognize abortion speech rights in other contexts.

Keywords: Scalia, Abortion, Freedom of Speech, Abortion Speech, Abortion Discourse