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Why Government Can’t Restrict Abortion Counseling Under the First Amendment [1]
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Date: 2023-07-05
By Stuart N. Brotman
“The First Amendment envisions the United States as a rich and complex place, where all persons are free to think and speak as they wish, not as the government demands," Justice Neil Gorsuch wrote for the Supreme Court’s 6-3 majority in last week’s 303 Creative v. Elenis decision.
At issue was the hypothetical refusal of service to LGBTQ+ individuals by Colorado graphic artist Lorie Smith, who notified potential customers that she would not “make wedding websites celebrating same-sex couples because it would violate her constitutional right to exercise her Christian belief that marriage is between a man and a woman.” According to Gorsuch and the five other Justices who joined in the opinion, state-enforced coercion to do so is a violation of Smith’s First Amendment rights.
I disagree with the Court’s unprecedented application of free speech without government interference as a principle that eclipses the equal protection clause of our Constitution, which generally prohibits discriminatory treatment based on racial, religious, or sexual identity. But since it now is the law of the land, it’s worth considering how the First Amendment reasoning set forth in this case would be viewed in another important context. What if the same six Justices were forced to apply it in relation to another controversial case that they ruled on recently, with ongoing seismic national consequences?
Last year, in Dobbs v. Jackson Women's Health Organization, the Court’s conservative supermajority overturned the constitutional protection for abortion that was articulated in Roe v. Wade a half century ago. In doing so, the power to regulate abortions was turned back to the states, and a number of them have enacted stringent restrictions, and in some cases, outright bans on the procedure.
But even before that decision, some states already were regulating the “expressive content” of individuals who wanted to offer abortion counseling. Idaho is Exhibit A. The prohibition against “promoting” abortion in any way is in its No Public Funds for Abortion Act, a law passed by Idaho’s Republican-led Legislature in 2021.
With that law in mind, following the Dobbs decision, two public universities—the University of Idaho and Boise State University--warned staffers not to refer students to abortion providers or tell them how to get emergency contraception because they could be charged with a felony. The law also apparently bars staffers and school-based health clinics from telling students where to obtain emergency contraception, except in cases of rape, again with the possibility of imprisonment.
The University of Idaho has gone even further in speech restrictions for its employees by reminding them that another law, enacted in 1867-- when Idaho was not yet a state--prohibits “advertising” abortion services and birth control.
Idaho has not yet decided whether to impose any penalties against those who violate the guidance that the universities provided last year; likewise, no penalty was imposed by Colorado against Lorie Smith when she announced that in the future, she would not be designing same-sex wedding websites.
Yet the Supreme Court decided to hear her case as a pre-enforcement possibility rather than as an actual controversy; in doing so, it protected Smith in the name of free speech. With this precedent now established, the Court should be compelled to do the same for abortion counseling if a case based on the Idaho prohibitions is brought before it. Such mandates, as the Court just ruled, would violate the First Amendment principle that the government may not “‘alter’ the ‘expressive content’ of [one’s] message.”
The rationale already has been written explicitly by Justice Gorsuch, with the concurrence of Chief Justice Roberts and Justices Alito, Barrett, Kavanaugh, and Thomas. “[T]he opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. …[a] commitment to speech for only some messages and some persons is no commitment at all.”
Justice Gorsuch has underscored “this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.” This means that under the First Amendment, abortion counseling must remain unimpeded by any governmental restrictions.
Stuart N. Brotman is an endowed professor of journalism and media law and leadership at the University of Tennessee, Knoxville. He is the author of The First Amendment Lives On.
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