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Applying The "Prior Restraint" Doctrine To Abortion Law


Thursday, Jun. 13, 2002

When people see the words "abortion" and "free speech" in the same sentence, what comes to mind? Protesters demonstrating at clinics, Internet web sites divulging the identities of clinic workers or visitors, bans on abortion counseling - and that's about it.

Actually, though, free speech law and abortion law have something else in common: an ancient First Amendment doctrine - the doctrine of prior restraint - that ought to be applied in the context of abortion even when free speech is not involved. Applying this underestimated First Amendment doctrine in the abortion context may provide the key to a broadly acceptable national policy that addresses abortion late in pregnancy - when most Americans believe it should be illegal - in a fair and balanced way.

Publish, then Punish: The Prior Restraint Doctrine

The prior restraint doctrine limits the government's ability to censor speech beforehand, but allows the government to punish speech after publication. As Justice Blackmun correctly explained in CBS v. Davis, "subsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context."

In this unusual area of law, torts - such as defamation - or crimes - such as the publication of secret information - may ordinarily be committed with impunity. However, subsequent punishments are available. A newspaper, for example, that wants to publish stolen information can normally do so, but must accept the legal consequences afterward.

Applying the Prior Restraint Doctrine in the Abortion Context

When doctors were prosecuted for performing abortions many years ago, women were subjected to a prior restraint that was quite effective: doctors refused to perform illegal abortions and thus physically prevented women from safely getting those abortions in the first place. The doctor, in essence, imposed a prior restraint against the woman, on the government's behalf.

Such prior restraints strongly infringe upon an adult's privacy and liberty interests - not unlike tying her down until she gives birth. An abortion doctrine that specially disfavors prior restraints, in contrast, would infringe women's interests to a lesser degree. Under such a doctrine, a woman could have an abortion late in pregnancy as she can now, but could face a penalty afterward - just as, in the free speech context, the speaker may speak today and then bear the consequences tomorrow.

Applying the doctrine of prior restraint in the abortion context would have the further attribute of allowing those women who may have valid reasons for demanding late abortions - perhaps due to rape or disabling physical health problems - to continue demanding them without significant delay. Those women would not have to justify themselves beforehand, or have to worry that a doctor might be reluctant because of doubts about legality.

Subsequent Abortion Penalties Could Be Imposed, But Not On Doctors

The only way the doctrine could work would be if subsequent penalties on abortion providers were to remain strictly limited - for as noted above, a doctor may act as, in essence, a prior restraint if he or she fears prosecution.

But, subsequent penalties for illegal abortions could nevertheless be imposed. These subsequent penalties could provide much greater protection for fetuses - while still protecting women's privacy and liberty interests. Women could get illegal abortions, but only if willing to face heavy legal consequences that do not now exist.

A Fairer Compromise Regarding Late Abortions

The prior restraint doctrine would be particularly well-adapted to a compromise on late abortion. This compromise would allow abortion to be penalized, but not prevented, before viability.

Most Americans disagree with the part of Roe v. Wade that denies protection to fetuses all the way up until viability, believing instead that the fetus should be protected earlier in pregnancy. Viability, of course, is the point between five and seven months' development when a fetus becomes strong enough to survive a premature birth. Applying the doctrine of prior restraint in the abortion context would protect fetuses before viability, without undue infringement of women's privacy and liberty interests.

Most abortions in the United States are obtained less than two months after conception. The term "late abortion" is used here to describe abortions after that two-month point, at which point an embryo becomes a fetus, the risk of miscarriage suddenly drops, integrated brain activity begins, and other important biological events occur.

In states like California, destroying an embryo against the mother's will is treated much less severely than the later killing of a non-viable fetus. Such criminal laws reflect a consensus that fetal life should be legally protected, even if the fetus is too weak to survive on its own. Indeed, a Gallup poll two years ago showed that sixty-nine percent (69%) of Americans believe abortion should be illegal months before viability, and a more recent Los Angeles Times poll showed that seventy-two percent (72%) of women share this same belief.

If the doctrine of prior restraint were to be implemented in the context of late abortions - which usually happen because the woman postponed it too long, or did not know she was pregnant - then these pre-viability abortions would become "safe, illegal, and rarer."

Furthermore, there would be a stronger incentive to defer sex until the risks are acceptable, to use better birth control, to take pregnancy tests, and to make abortion decisions promptly in order to avoid penalties. However, if a woman were to wait too long, then abortion would still be available until viability, consistent with the Supreme Court's decision in Stenberg v. Carhart, which involved late abortions.

The Doctrine of Prior Restraint is No Panacea

Of course, it would be naive to think that the doctrine of prior restraint could solve the whole abortion controversy. Important issues would remain, such as what constitutes cruel and unusual punishment, in violation of the Eighth Amendment, for parents who abort. There would also be Fourteenth Amendment equal protection issues - it would be grossly unequal to impose subsequent penalties only on a woman if, for example, her boyfriend bribed her to abort.

Additionally, the Fourth Amendment is absolutely essential for guarding the constitutional right of access to abortion, just as the First Amendment is absolutely essential for guarding the constitutional right to freedom of the press. Judges ought to concede that the availability of tough and effective subsequent penalties can render prior abortion restraints "unreasonable" within the meaning of the Fourth Amendment.

Subsequent penalties could be applied not just to women who obtain late abortions, but to girls also, assuming they obtain whatever adult consent is required in order to remove the prior restraint. Such a consent requirement would, again, have to pass the reasonableness test of the Fourth Amendment.

The Benefits of Applying the Prior Restraint Doctrine in the Abortion Context

Overall, applying the prior restraint doctrine in the abortion context would be workable, although more cumbersome than simply locking up all the abortionists, or simply continuing the present policy. Applying this doctrine would be a vast improvement on the situation we have now - in which women fear they soon may not be able to obtain any abortions at all, and in which late abortions that most people (including me) believe are unspeakably harmful nevertheless remain available on demand without any legal penalty whatsoever.

The primary purpose, after all, of using the prior restraint doctrine would be to effectively deter unwanted pregnancies and late abortions - both worthy goals. Deterrence would properly influence the choice of a pregnant woman who would otherwise choose a late abortion, by motivating her to either have the abortion earlier, or alternatively motivating her to carry the child to viability. Yet, neither the government, nor even her husband, could legally use physical force to make her opt for either alternative. Thus, a woman's liberty, dignity and privacy would be preserved. And, the number of late abortions in the United States would plummet from the current level of more than a half million per year.

Andrew Hyman is an intellectual property attorney in Connecticut at Ware, Fressola, Van Der Sluys and Adolphson LLP. The opinions expressed here are his own. He has written for various physics, mathematics, and law journals. Mr. Hyman is an Army vet, a native of Massachusetts, a UMass and Lewis & Clark Law School alum, and he managed a youth hostel along the Appalachian Trail for several years. His email address is Mr. Hyman thanks Professor Mike Dorf for comments.

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