Kate Michelman, executive director of the National Abortion Rights Action League, recently charged that the "inflamatory rhetoric" of anti- choice protesters fuels bombings of abortion clinics that may eventually kill somebody. Accordingly, in a telegram to the president, she urged him "to move all protests away from the immediate vicinity of the clinics. . . ."
Had she wanted to show the president a paradigm of what she had in mind, Michelman might have pointed to a restraining order by Louis Simmons, a circuit judge in Wayne County, Mich.
The Female Health Care Centers in Livonia had gone to court to lift a siege by anti-abortion demonstrators. The judge ordered that, henceforth, there would be no "harassing, annoying, photographing" or any interference with the clinic or its patients as well as no "picketing, distributing written or printed material regarding . . . abortions" or any other kind of demonstrating within 500 feet of the clinic.
To the surprise -- indeed, astonishment -- of the Pro-Life Action League, the primary target of the restraining order, someone came forward with free legal help to try to vacate the injunction. The surprise was the identity of the paladin: the Metropolitan Detroit Branch of the American Civil Liberties Union. The ACLU is habitually an adversary of pro-life groups.
Appealing to the supreme court of the state of Michigan, after the court of appeals had upheld the restraining order, the ACLU claimed that the injunction deprived the pro-life defendants "of their constitutional rights of free speech and free assembly" and therefore was unconstitutional. In the brief, the ACLU lawyers stressed that their organization "is committed to the right of every woman to choose when and whether to bear children and to secure an abortion if she so chooses." But, they added, the ACLU is mighty protective of the First Amendment too.
Keeping the protesters 500 feet away, the ACLU pointed out, "effectively prohibits them from communicating at all with those persons whom they wish to reach with their message. . . . The Court has, thus, totally prevented them from speaking."
There had been no evidence that sidewalks or the driveway to the clinic had been blocked before the court restrained the demonstrators. The literature they were distributing did show "aborted fetuses and fetuses in various stages of development"; and the abortion clinic complained that this sort of material "is designed to incense and inflame emotions" and seeks "to revolt or shock the clinic's patients."
Quite true, but, as William O. Douglas said in Terminiello v. Chicago (1949): "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech . . . may . . . have profound unsettling effects as it presses for acceptance of an idea."
In sum, the Metropolitan Detroit ACLU saw no conflict between the constitutional rights to have an abortion and to protest abortion: "It does not follow . . . that a woman has a right to have an abortion without having to see someone carrying a sign protesting abortion, or without having someone hand her a leaflet objecting to abortion and graphically, perhaps even disgustingly, depicting and describing it."
As for the "verbal altercations" deplored in the complaint, the defense attorney said that "after all" their clients "have the right to dispute, to argue, to present their views orally, just as in writing."
Also found vulnerable by the ACLU was the overly broad and vague language of the injunction. How is any picketer to know the legal meaning of "harassing," "annoying" or "in any way interfering"? As constitutional historian Edwin Meese might agree, such dragnet restraints on free expression were surely not what James Madison had in mind.
The ACLU's brief was so com supreme court of the state of Michigan dissolved the restraining order, remanding the case to the lower court, which in turn threw it out.
The Detroit Branch of the National Organization for Women has accused the ACLU of having been " (which) doesn't hesitate to use our own weapons against us." The First Amendment can indeed be a mighty weapon, precisely because it belongs to everybody, from the native Nazis who wanted to march in Skokie to the pro-choicers who counterpicket the pro-lifers -- carrying provocative signs and shouting things intended to invite dispute.