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Seventh Circuit Review

Abstract

While the Due Process Clause provides a right to privacy, including the right to access to abortion, the First Amendment provides the right to speak publicly against abortion. The clash between those two constitutional rights is most evident outside of abortion clinics, where protestors frequently gather to protests, or “counsel,” those seeking abortions. To ensure that those who wish to speak against abortions are not effectively prohibiting other's right to access to abortions, many municipalities have enacted strict restrictions on the ability to congregate and protests outside of reproductive healthcare facilities. By design, and in their effect, the laws target only certain kind of speech—speech against abortions— and therefore they are textbook content-based regulations subject to strict scrutiny. Yet, in Hill v. Colorado, the Supreme Court went to great lengths to find that such laws are not content-based and thus only subject to intermediate scrutiny. Twenty years later, it is evident that Hill's content-based analysis cannot be squared with subsequent Supreme Court precedent. As the dissenters in Hill pointed out, the Court's content-neutral analysis was outcome driven: the Court wanted to find the law content neutral in order to subject the law to a lower level of scrutiny. Indeed, in virtually all other context, not involving abortion, the Court has no problem applying its traditional content neutrality test. But when dealing with abortion protests, the Court ignores its own precedent and appears to create an entirely new legal framework. Such legal gymnastics should be avoided. Instead, the Court should recognize these laws for what they are: content based restrictions on speech. This recognition does not have to be fatal to the laws because the state likely has a compelling governmental interest in ensuring access to abortions. Therefore, validity of the laws will turn on tailoring, which can be easily achieved in this context.

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