Compelling pro-lifers to violate their consciences

Judges usually don’t outline strategies for activists who want to increase constitutional havoc, but on Wednesday one exasperated judge did

Some background: Several years ago city councils in Austin, Baltimore, and other cities embarked on a strategy to make pro-life crisis pregnancy centers (CPCs) aiders and abettors of abortion. In apparent violation of First Amendment guarantees of freedom of religion and freedom of speech, the city councils required CPCs to put signs on their doors announcing: No physicians here. No abortions here. The city councils demanded that CPCs, instead of explaining to distressed women why they should come in, tell them why they should not—as if “have an abortion” were a morally legitimate choice.

Those legal gambits didn’t get far. Judges shot them down. U.S. District Court Judge Marvin Garbis saw the First Amendment problems inherent in “compelled speech” two years ago when he awarded summary judgment to a Baltimore CPC. Summary judgment essentially means that one side obviously has the Constitution on its side. Last year a panel of three appeals court justices said Garbis was right: Open and shut, no need for longer legal battles.

Sadly, the entire 4th U.S. Circuit Court of Appeals on Wednesday saw it differently, and commanded the district court to have a full trial. You can read the 60-page decision here, but the dissents that follow it are better. Judge J. Harvie Wilkinson III, the lone remaining Reagan appointee to the 4th Circuit, noted that “the majority fails to respect the Center’s right not to utter a state-sponsored message that offends its core moral and religious principles … it should be axiomatic that the First Amendment prohibits the government from dictating the terms of private expression.”

But since it’s not axiomatic any more, Wilkinson noted that “compelled speech can serve a pro-life agenda for elected officials as well as a pro-choice one. It is easy to imagine legislatures with different ideological leanings from those of the Baltimore City Council enacting measures that require organizations like Planned Parenthood to post a statement in their waiting rooms indicating what services they do not provide. Indeed, after today’s decision, I would expect a flurry of such measures.”

That’s an engraved invitation to pro-life legislators and lawyers to do unto pro-aborts what they do unto our side—but respecting the First Amendment would be a better solution.