In states where abortion is illegal, could even talking about it become a criminal offense?
Constitutional law experts say free speech is the next frontier in the fight around access to abortion in a post-Roe world. That's because some state legislatures have started trying to characterize certain speech – such as informing people of how to get an abortion in another state – as potentially "aiding and abetting" a criminal offense in states where abortion is illegal.
Although those legal questions remain to be decided, there are some areas of the law that are more settled, including the rights of protesters outside of abortion clinics.
The U.S. Court of Appeals for the 6th Circuit recently decided that anti-abortion groups, including Sisters for Life, were entitled to a preliminary injunction blocking a May 2021 Louisville, Kentucky, ordinance that put in place a 10-foot buffer zone near the entrances of medical facilities, including abortion clinics.
Abortion has been illegal in Kentucky, except for the case of certain medical emergencies, under a state trigger law that took effect after the U.S. Supreme Court overturned Roe v. Wade in June. The Kentucky Supreme Court is expected to rule on the future of abortion access in the state as a matter of state law, but for now most abortions are banned.
What the Sisters for Life case decided
The three-judge panel of the 6th Circuit, which included two judges appointed by former President George W. Bush and one by former President Donald Trump, found that the county's ordinance was not narrowly tailored and substantially burdened more speech than necessary. Therefore, the law likely violated the First Amendment and the appeals court directed the district court to block enforcement of the law while the case was litigated.
Instead of applying to just abortion clinics like Louisville's EMW Women's Surgical Center where protesting had become problematic, "the ordinance covers every single hospital, clinic, and dentist's office in the area," the court said.
The judges found that the ordinance prevented the anti-abortion groups from effectively counseling women or providing them with leaflets when entering the clinic, while clinic staff were still able to talk to the women as they walked in the buffer zone.
'A compassionate ear,' abortion and free speech
The 6th Circuit's ruling was largely guided by a 2014 unanimous opinion from the U.S. Supreme Court authored by Chief Justice John Roberts. In that case, the high court concluded a 2007 Massachusetts law imposing a 35-foot buffer zone around abortion clinics went too far. Although the court had upheld an 8-foot buffer zone in Colorado in 2000, the Massachusetts law went 27 feet farther.
"Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks – sites that have hosted discussions about the issues of the day throughout history," Roberts wrote. Though the state has an interest in public safety, it "pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers."
A Trump-appointed U.S. District judge had declined to issue a preliminary injunction temporarily blocking enforcement of the Louisville ordinance because she believed it didn't violate anyone's free-speech rights among other factors.
But the 6th Circuit wrote in its decision that the public should, "keep in mind, moreover, that the goal of the plaintiffs is not to harass or protest, whether loudly or violently. The point of their speech is to offer a compassionate ear.
"To this day, it remains unclear why the county has sought to suppress their speech along with those types of protests that are far more likely to hinder access to a clinic and are sometimes designed to do just that," the appeals court continued.
Ken Paulson, the director of the Free Speech Center at Middle Tennessee State University, noted that in all likelihood the county will pass a narrower law designed to survive a future legal challenge.
"What’s unusual about the appellate court’s decision, though, is the extraordinary deference the judges extended to the anti-abortion advocates," Paulson, a former USA TODAY editor and member of USA TODAY'S Board of Contributors, said. "I’m not aware of any First Amendment right to have a conversation. If the buffer zone prevented dissenting voices from being heard, it would violate the First Amendment, but this decision seems to be about protecting the right to impromptu counseling."
How constitutional law experts are reading the case
"The First Amendment provides very strong protection to free speech on public sidewalks, so any government restriction on the exercise of that right has to be narrowly tailored, whether that speech involves quiet counseling or loud protesting," said Will Creeley, the legal director of the Foundation for Individual Rights and Expression, a free speech-advocacy group.
"What's really interesting here, is this is simply a 10-foot buffer zone. If (you) visualize a football field and picture five yards, this is only three yards and one foot," said Clay Calvert, a University of Florida professor emeritus specializing in First Amendment law. "The plaintiffs really want to be able to engage in a one-on-one conversation where they can literally reach out and hand a flyer or leaflet to people who are entering the clinic. So, if essentially you can't really have a 10-foot buffer zone around the entrance ... can you really have any buffer zone at all?"
"What the court is getting at is when people want to engage in a loud protest, it may very well be that you could do it from 10 feet away; if you have a bullhorn it doesn’t much matter," said Eugene Volokh, a First Amendment expert and distinguished professor at UCLA School of Law. "However, if what you’re doing is trying to have a conversation with someone and you've got to stay 10 feet away, that makes it much harder. It's just a way of illustrating, for this kind of speech, the ordinance is really a meaningful burden."
This article originally appeared on USA TODAY: Where abortion is illegal, the right to talk about it is under attack