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| Article |
| Free Speech, Abortion Access, and the Problem of Judicial Viewpoint Discrimination |
| James Weinstein |
| 29 U.C. Davis L. Rev. 471 (1996) |
| Library Access |
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Abstract: Abortion is perhaps the most hotly contested issue in America today -- a topic engendering intense feelings and unwavering commitments. Most anti-abortion activists exercise their right of free speech in a peaceful, lawful manner. Others, however, come to abortion clinics not to engage in legitimate public discourse but to stop abortions at all cost -- through harassment, intimidation, physical obstruction, and violence including bombings, arson, and murder. To protect access to abortion services, abortion rights groups have pursued three types of remedies: 1) state and federal court injunctions; 2) federal legislation criminalizing conduct designed to obstruct access to abortion facilities; and 3) state and local "bubble" ordinances requiring demonstrators protesting near medical facilities to retreat a specified distance from any person making the request. These remedies present several interesting, although quite technical, First Amendment doctrinal questions. The primary purpose of this paper, however, is not to answer any specific doctrinal question, or even to decide whether these provisions protecting abortion access are constitutional. Instead, the focus will be on the form that free speech rules should take to avoid what I call "judicial viewpoint discrimination." In this Article I will discuss a particularly pernicious type of viewpoint discrimination -- discrimination by the very persons entrusted to guard against this core violation of the free speech principle. Two conditions increase the risk that in reviewing speech regulations judges will illegitimately inject (in many cases unconsciously) their own attitudes towards the speaker's ideology into the doctrinal analysis. |
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