If (when) federal constitutional protections for abortions fall, each individual state will have the power to craft its own restrictions on the procedure. Still, the First Amendment might be able to offer a bit of cover to those who seek an abortion as a life choice. Justice Alito’s leaked opinion in Dobbs v. Jackson Women’s Health Organization even offers a blueprint.
Alito vociferously argues that the choice to terminate a pregnancy is not protected by any constitutional right of privacy. In fact, he correctly points out that the Constitution provides no explicit right to privacy at all. That right has been interpreted into the constitutional space by the courts and has long been controversial. Instead, the justice asserts over and over again that the decision regarding an individual’s right to choose to continue or to terminate a pregnancy is inherently political. He insists that it is a legislative question to be answered by that branch of each state government responsible for crafting laws.
We know any discussions about legislation and its implications and effects are, by definition, political. Political speech enjoys the highest level of protection the First Amendment can provide.
Political speech is not merely communication transmitted during campaigns or among politicians, legislators, lobbyists and activists. Any person expressing an opinion or engaging in conversation on a matter of public concern—whether that be matters of policy, morality, economics or the like—is engaging in political speech. The courts have extended expansive constitutional defenses, including providing cover to those who burn a cross when it serves as an expression of political ideology, to those who use threatening language in the heat of an argument, and to those who picket funerals of our soldiers disparaging both the soldiers and the United States government. The ideas expressed by the speakers serve as a commentary on matters affecting the public. Although such speech might be immoral, disturbing or offensive and therefore not worthy of the superpower of the First Amendment, since the First Amendment does not measure morality, such speech enjoys the benefits anyway.
If sidewalk counseling regarding options to continue a pregnancy is protected political speech, so too should be counseling options regarding the choice to legally terminate a pregnancy.
The First Amendment always takes center stage in disputes between advocates and opponents of the right to choose. Two landmark post-Roe decisions addressed the ability of protesters and sidewalk counselors to approach individuals who visit clinics that provide abortion services. In each of those cases, the individual conversations between a prospective clinic patient and an abortion opponent were recognized as political speech. The Court warned that attempts by state governments through their legislatures to create barriers to discourse between abortion opponents and pregnant people were not constitutional if the burdens imposed effectively silenced the speakers. Certainly, if sidewalk counseling regarding options to continue a pregnancy is protected political speech, so too should be counseling options regarding the choice to legally terminate a pregnancy.
If the federal support for abortion is eliminated (as is anticipated once the Supreme Court announces its decision in Dobbs), within weeks, multiple states will enact legislation that severely limits abortion access. By last count, if Roe v. Wade is overturned, abortion will become criminal in at least 13 states. Some have argued that if abortion is a criminal act, so too will be speech that assists individuals and their providers in accessing the procedure.
If speech regarding abortion choices is essentially political, attempts to criminalize it are censorship. Censorship is kryptonite to democracy and for that reason is subject to the strongest legal assault. Of course, it might be wise to script such discussions to include keywords that implicate the political nature of the discussion, such as, “Let’s discuss your options regarding the exercise of your right to choose to terminate a pregnancy in a jurisdiction that protects that right.”
Individuals, advocacy groups, newspapers and online platforms that provide information to an individual regarding out-of-state choices available to them should all be shielded by the First Amendment.
Currently, Texas and Oklahoma have provided a civil (as opposed to criminal) avenue for vigilantes to collect $10,000 by suing those who “aid and abet” a person who seeks an abortion. In those states, even someone who has no relationship to the pregnant person or the abortion provider can sue. However, individuals, advocacy groups, newspapers and online platforms that provide information to an individual regarding out-of-state choices available to them should all be shielded by the First Amendment.
Indeed, in a case initially prosecuted before Roe v. Wade, the Supreme Court upheld the right of a newspaper editor to include advertisements informing Virginia residents of the availability of legal abortions in New York, even if they were illegal in Virginia. So, accessing information about legal out-of-state abortions is certainly safeguarded by the First Amendment.
Similarly, monetary contributions and expenditures have long been recognized as an element of political speech, so that any attempt to punish those who offer financial support to groups who aid individuals in their efforts to obtain legal abortions should be on safe ground. Again, tagging any such monetary assistance as funding for political purposes might be wise.
I am of course not arguing that the First Amendment will supplant the protections in Roe, which also relied on the Fourth, Fifth, Ninth and 14th Amendments to provide individuals with autonomy and power. Those of us who insist it is the personal and private decision of a person to choose how their body should be used and whether or when they will become a parent are now tasked with rebuilding that right. We will have to fight state-by-state. It is nice to know that all federal protections have not abandoned us and that the First Amendment will provide wind at our backs.
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.