Amicus Curiae Brief — McGuire v. Reilly

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No. 04-939 OFFICE OF THE CLERK |

IN THE

Supreme Court of the Gnited States

MARY ANNE MCGUIRE, RUTH SCHIAVONE,

AND JEAN B. ZARRELLA

Petitioners,

v.

THOMAS F. REILLY, ATTORNEY GENERAL

OF THE COMMONWEALTH OF MASSACHUSETTS, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

——

Se a

BRIEF OF AMICAE CURIAE DR. ALVEDA KING,

MARLYNDA AUGELLI, SUSANNA BRENNAN AND

NUMEROUS OTHER WOMEN TESTIFYING TO

THE IMPORTANCE OF FREE SPEECH

DURING THEIR ABORTION DECISIONS

IN SUPPORT OF PETITIONERS

_— a Se

a — a

MARY ANN GLENDON LUKE STANTON

Of Counsel Counsel of Record

1575 Massachusetts Ave. 24 Lexington Street

Cambridge, MA 02138 Waltham, MA 02452

(617) 495-4769 (781) 736-9600

COLBE MAZZARELLA

265 Essex Street, Suite 202

Salem, MA 01970

(617) 569-5971

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

LIST OF AMICAE

Ms. Marlynda Augelli

Ms. Susanna Brennan

Ms. Cynthia Brown

Ms. Diane Doe*

Ms. Maria Doe*

Ms. Pilar Doe*

Ms. Rosemary Fedor

Dr. Gail Hayes

Dr. Alveda King

Ms. Bernadette Macy

Ms. Anita Manninen

Ms. Diane Penza

Ms. Esther Ripplinger

Ms. Amy Seltzer

Ms. Susan Swander

Ms. Molly White

Ms. Cindy Williamson

* Indicates amica wishing to remain anonymous.

TABLE OF CONTENTS

SOMMERS OIE PAF NUMN EE secsicsasinccascsicsssaccsnvssccssnenenonaces il

INTEREST OF AMICAE PANINI dit phntadenssbasiaseiassnnsenscsnniess l

SUMMARY OF IE, Seiatilabics sapsisagncrtsaasrssinencsads l

I ee 2

I. WOMEN CONSIDERING ABORTION

WANT ACCESS TO THE PETITIONERS’

A locas eatin tic pas esdehashsacicéaies chau acess 2

A. Massachusetts Women Extol

Petitioners’ Speech as Invaluable To

Their Life-Altering Choice of

Forgoing An Abortion ....... Pi aienieataitictas 3

B. Post-Abortive Women Regret Their

Lack of Information During Their

I ees ee Nr, 7

Il. THE FIRST AMENDMENT PROTECTS

PRIVATE SPEECH THAT ENABLES

WOMEN TO MAKE INFORMED

Ry ANNI iin a aA I TAs takai tela sts tancnacsnate scsris 10

A. The First Amendment Protects the

Interests of Women In Having More

Information Rather Than Less

Especially on Fundamental Decisions ....... 1]

B. The First Amendment Protects the

Interests of Women In Hearing

Information From All Speakers

Regardless of Viewpoint .........0ccceceeseeseees 14

Oo, ok 1 SSR INPR roe NC ee eT ees NED 18

I a ech ek la

lk

TABLE OF AUTHORITIES

CASES:

44 Liquormart, Inc. v. Rhode Island,

SUT UE A Ce ieee aot earascibntncecnansansbonnn 13

Board of Educ. v. Pico, 457 U.S. 853 (19882) ....ccecceeeeeeees 14

Board of Educ. of Westside Cmty. Schs. (iDist. 66) v.

Mergens, G96 UB. ZO CAGE scsenisinnjercsnasetiscerscosssonssces 13

City of Ladue v. Gilleo, 512 U.S. 43 (1994) woe. 16-17

First Nat’l Bank v. Bellotti, 435 U.S. 765) (1978) ...........005 17

Griswold v. Connecticut, 381 U.S. 479 (11965) ........ceeeeeees 13

Hill v. Colorado, 530 U.S. 703 (2000) ............ 15, 16, 16n, 17

Hudgens v. N.L.R.B., 424 U.S. 507 (1976) woo. eeeeeeeeeeeeeeees 15

John Donnelly & Sons v. Campbell,

GSD F268 G Chak Ce, Te westarticeetes Atsstanineebnteabtcavnnes 13

Metromedia, Inc. v. City of San Diego,

433 U5. 460 (S80) o.nchaoueee abinsalasccabeaeiahianiviiens 13

Ohio v. Akron Ctr. for Reproductive Health

(Akron Ef), 49T UR. SOE CA ID ccvcescncctecessceccasesvccscnsess 1]

Peel v. Att’y Registration and Disciplinary

Comm'n of Illinois, 496 U.S. 91 (1990) wo. eeeeeeeeees 11

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ......... 12

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) .. 2, 12

Police Dep’t.of C ity of Chicago v. Mosley,

SB US. 92 COSTS) ccc cen asamaseseataadiniiatine 14

Rosenberger v. Rector, 515 U.S. 819 (1995) .........e. 14,15

Santa Fe Indep. Sch. Dist. v. Doe,

$30 U.S. 200 (QOD) sccsccrscersassanncrasns halataehstspneaapesiniattedastenic 13

ili

Turner Broad. Sys., Inc. v. FCC,

Be ns WE ROD iris teh crnssndnsclestentneinratnnsesatsecninealanal 15

Virginia State Board of Pharmacy vy. Virginia

Citizens Consumer Council, 425 U.S. 748 (1976)

> AER NE NE NET a ER Ea PEE Ap Re NOR ALC Sree cae 13, 14

CONSTITUTIONAL PROVISIONS AND STATUTES:

I alae passim

Py Is es UR, NG, BI PR accactnecacccnnccassoctnovensarsenies 3, 16

ARTICLES & BOOKS:

Benshoof, Janet, The Chastity Act: Government

Manipulation of Abortion Information and The

First Amendment, 101 Harv. L. Rev. 1916 (1988) ...... 15

Fried, Charles, Saying What the Law Is: The

Constitution in the Supreme Court (2004) .......c:cccc0000 14

Glendon, Mary Ann, A Beau Mentir Qui Vient De Loin:

The 1988 Canadian Abortion Decision in Comparative

Perspective, 83 Nw. U. L. Rev. 569 (1989) ........c. 12

Langan, Irene, “A Tale of Twins: Two Living Miracles

of Free Speech,” Mass. Citizens for Life News,

Eg I I ion ia hatch sec ucantchiedbidininaisonntanbionaiaas 6

Redish, Martin H., Freedom of Expression:

Ae er EE PIE CL UITED crnccniccnenccticketscddacencicadcanabcincns 1]

Sandor, Judit, From Ministry Orders Towards

Constitutional Debate: Lesson Drawn from

the Past 50 Years of Abortion Laws in Hungary,

es Ee Sav EE A AUD coscnichinbinnstenniseciedsasbdeaauaadioneecns 12

—— Kathleen M. & Gunther, Gerald,

Constitutional Law (14th ed. 2001) 0... eseeeees 14, 16n

INTEREST OF AMICAE CURIAE |

Amicae, who are listed on the inside cover and described

in the Appendix, are women who attest to the importance of

free speech in their abortion decisions. They include (i)

women from Massachusetts who believe that the speech of

the petitioners and pro-life counselors was invaluable to their

life-altering choice of forgoing abortion, and (ii) post-

abortive women who regret their lack of information during

their decisions. All of these women believe that women

contemplating abortion have the right to an uninhibited flow

of information for their decisions. Amicae believe that laws

like the one at issue here selectively and unconstitutionally

restrict this flow of information to them and similarly

situated women.

SUMMARY OF ARGUMENT

Women who have been in the position of patients at

abortion clinics attest to the importance of free speech during

their abortion decisions. These women understand from

firsthand experience that the choice of whether or not to

abort is one of the most difficult decisions that a woman

must make. Yet all of these women agree on the vital

importance of the petitioners’ speech. Regardless of whether

they are pro-choice or pro-life, they each personally testify to

the fact that, at such an important and life-altering moment,

women want as much information about their choice as

possible and do not want the government selectively limiting

how they can be provided that information in the public

forum.

' Counsel for both parties have consented to the filing of this amicus brief.

Theif joint notice of consent is on file with the Clerk of the Court. No

counsel for a party authored this brief in whole or in part. The Pro-Life

Legal Defense Fund, Inc. contributed the printing costs associated with the |

preparation and submission of this brief. Unless otherwise noted, all

statements made by amicae are on file with counsel for amicae curiae.

2

Indeed, this Court has emphasized that the First

Amendment favors more information rather than less,

especially on fundamental and deeply personal decisions.

Women contemplating abortion thus have the right to an

uninhibited flow of information. Moreover, this Court has

consistently held that the First Amendment ensures that the

state may not favor one speaker over another. Women thus

have the right to hear information from all viewpoints—

information about alternatives to abortion, as well as pro-

clinic speech. As a result, the First Circuit’s decision

upholding the Massachusetts “buffer zone” law, which

restricts the overall amount of speech and favors one

viewpoint over another, not only deviates from this Court’s

First Amendment jurisprudence but, in so _ doing,

significantly impairs the ability of women to make fully

informed decisions.

ARGUMENT

I. WOMEN CONSIDERING ABORTION WANT

ACCESS TO THE PETITIONERS’ SPEECH.

All of the amicae attest to the importance of free speech

in their lives and in their decisions. This speech performs

the vital function of providing information for women

contemplating abortion. As this Court has recognized, while

the choice of whether or not to abort is among the most

difficult decisions, women have a right to as much

information as possible about their choice. See Planned

Parenthood v. Danforth, 428 U.S. 52, 67 (1976) (“The

decision to abort, indeed, is an important, and often a

stressful one, and it is desirable and imperative that it be

made with full knowledge of its nature and consequences.

The woman is the one primarily concerned.”).

3

A. Massachusetts Women Extol Petitioners’

Speech as Invaluable to Their Life-Altering

Choice of Forgoing An Abortion.

Many women in Massachusetts attest that the speech of

the petitioners and pro-life counselors was indispensable to

their abortion decisions. These include women whom the

petitioners approached but would have been restricted from

_ approaching if the buffer zone had been in effect at the time.

For example, Maria Doe, Pilar Doe, and Kathleen Richard

are all women from Massachusetts who were considering

abortion before talking to and receiving information from the

petitioners and pro-life counselors. These women believe

that this speech was indispensable to their life-altering

choices to forgo abortion.

Maria Doe chose to forego an abortion after talking with

Mary Anne McGuire outside of an abortion clinic in New

Bedford, Massachusetts. Mary Anne McGuire was only able

to speak with Maria within six feet because, at the time, the

New Bedford clinic had not painted the eighteen-foot lines

that are statutorily required to activate the “buffer zone.”

Mass. Gen. L. ch. 266, § 120E%4(c). Pilar Doe chose to

forego an abortion after talking with pro-life counselors

outside of an abortion clinic in Brookline, Massachusetts. A

speech-related approach within six feet of Pilar was only

able to occur because this clinic also had not demarcated the

buffer zone at that time. Kathleen Richard, who was

deposed earlier in this case, chose to forego an abortion after

talking with pro-life counselors for several hours. The

approach and conversation with Kathleen Richard occurred

within six feet and thus would have been prohibited, but the

buffer-zone statute had not yet been enacted. All of these

women believe that the approach and speech of the

petitioners and pro-life counselors were invaluable to their

life-altering choices of forgoing abortion. However, now

that that “vuffer zone” is in effect, similarly situated women

are restricted from receiving this same valuable information.

4

First, Maria Doe did not want to have an abortion but

believed that she had no other choice before meeting Mary

Anne McGuire. See Statement of Maria Doe (“I was 20

years old and I had lost my job in a factory. I didn’t speak

any English. People told me that it cost $8000 to have a

baby . . . I did not want to have an abortion, but I thought I

had to.”). Maria arrived by taxicab at WomanCare, an

abortion clinic in New Bedford, Massachusetts. Mary Anne

McGuire was only able to approach and speak to Maria

because WomanCare had never painted the statutorily-

required lines to demarcate the buffer zone. If the buffer

zone had been in effect, Mary Anne would have had to

receive the consent of the taxi driver (since the taxi was

parked within the eighteen-foot buffer zone) and then

attempt to receive Maria’s consent to approach in Spanish—

which Mary Anne does not speak. Either of these bizarre

requirements might have alarmed Maria before Mary Anne

could hand her a pro-life booklet in Spanish.

Instead, because there was no, buffer zone restricting

Mary Anne’s approach and speech, she was able to walk

toward Maria and the taxi. Mary Anne handed Maria the

booklet that contained information about abortion and

possible alternatives. See Statement of Maria Doe (“[T]he

booklet . . . showed me what an abortion really is. I didn’t

know that’s what they did in the clinic.”). Maria and Mary

Anne had a long conversation, and, after having an

ultrasound, Maria decided that she did not want an abortion.

See Statement of Maria Doe (“Because of Mary Anne I did

not make the mistake of having the abortion.’’); id. (“She

said she would help my baby to be adopted, but I told her I

wanted to keep my baby.”). Maria and Mary Anne have now

become friends, and Maria is grateful for the information

that Mary Anne was able to give her. See id. (“The way

Mary Anne talked to me was the right way because she gave

me all the information about the abortion.”’).

Joi its inne thaths Bree:

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5

Second, like Maria Doe, Ms. Pilar Doe also decided to

forego abortion after speaking with pro-life counselors. Pilar

Doe explains that the pro-life counselors “became like part

of our family” but that “[i]f the people had to stay six feet

away it would be different” because “[n]o one is going to

listen to them.” Pilar Doe explains that she found out that

she was pregnant in late 2003. She was unemployed, had

recently moved to Massachusetts from Haiti, and she and her

husband were struggling financially. Although believing

that abortion is wrong, Pilar felt that she had to have an

abortion because she did not have any help. She went to an

abortion clinic in Brookline, Massachusetts, but, after talking

with several pro-life counselors, she eventually decided not

to have the abortion. See Statement of Pilar Doe (“‘At first I

didn’t want to listen, but when they’re close to you and they

talk to you, you feel great.”); id. (“We came home and

_ thanked God for these people with tears in our eyes.”).

Pilar contrasts the information that she was given by the

pro-life counselors with the lack of information from her

doctor and nurse. Compare Statement of Pilar Doe (“[The

pro-life counselors’] information changed my life

completely.”) with id. (“Our own doctor didn’t give me any

advice [and] [t]he nurse just gave me a paper with one

address, not two choices, not ‘here’s a place to go for

counseling and they will help you with money.””). Since her

choice Pilar and the pro-life counselors have remained good

friends. See id. (“People go for abortions because they don’t

know where to go to get help,” but the pro-life counselors

“not only give advice, they treat you like family.’’).

Third, like Maria Doe and Pilar Doe, Ms. Kathleen

Richard of Massachusetts has been in the position of an

incoming patient and chose not to abort after talking with

pro-life counselors. In her deposition on behalf of Mary

Anne McGuire and the pro-life petitioners earlier in this

case, Kathleen Richard concludes: “[I]f they had been across

the street, I would never have heard them say ‘We will

6

help.”” Deposition of Kathleen Richard, McGuire v. Reilly,

C.A. # 00-CV-12279-EFH, at *7 (D. Mass. Mar. 20, 2002).

Kathleen Richard describes her own experience of walking

into the clinic before her eventual choice not to abort:

I had to walk by the protesters. . . . I heard

one of them say, ‘Please just talk to us. We

are here for you. Whatever you need we’ll

help you.’ I looked at [my friend] Marie and

tears started streaming down my face. This is

what I wanted more than anything: someone

to talk to, someone who would support me in

all I was going though.

Irene Langan, “A Tale of Twins: Two Living Miracles of

Free Speech,” Mass. Citizens for Life News, Vol. 21, No. 2

(1999) (Interview with Kathleen Richard) (emphasis added);

see also id. (“If those people [the pro-life counselors] hadn’t

been there, what would have happened to me? ...1 didn’t -

want to go through with the abortion, but I felt I had no

choice in the situation I was in. I had no one to turn to. [The

pro-life] volunteers gave me a choice.”’).

Women such as Kathleen Richard, as well as Maria Doe

and Pilar Doe, who have directly benefited from the speech

of the petitioners and pro-life counselors worry about the

effect of the buffer-zone statute on similarly situated women

searching for information. See id. (“There are other people

like me, who feel they have no choice, and no support. What

will happen to them if the pro-lifers aren’t there? I needed

them because I had no one else to turn to. They saved me

that day, and they saved two other lives. If the Buffer Zone

passes, women, children and families will suffer, and I

needed to say that.”); see also Statement of Maria Doe (“A

law like [the buffer-zone statute] would make it difficult for

a person lilxe me who didn’t know anything about abortion.

It would be very, very sad if a person like me could not get

this information.”).

Thus, Maria, Pilar, and Kathleen all attest to the fact that

free speech was both indispensable to their abortion decisions

and one of the best things that ever happened to them. These

Massachusetts women believe that similarly situated women

also want access to this information and do not want the

government selectively limiting the information that they are

allowed to receive.

B. Numerous Post-Abortive Women Express

Regret Over Their Lack of Information

During Their Decisions.

Women who have undergone abortions often express

regret over not receiving information during _ their

decisionmaking process. These post-abortive women state

that, in the pressure and confusion of their decisions, they

wanted to have some information on alternatives, wished to

hear a pro-life voice, or just wanted someone with whom

they could have taiked. These women provide firsthand

accounts about (i) their lack of information, especially on

alternatives to abortion, (ii) the limited viewpoint of the

clinic and its employees, (iii) the internal confusion and

external pressures they experienced, (iv) the unexpected

negative effects of their abortions, and (v) how their

decisions would have differed with more information.

First, these post-abortive women describe how they

wanted more information at the time of their choices. See,

e.g., Statement of Susan Swander (“I had absolutely NO

information prior to any of my 3 abortions. If I had gotten

some—any—TI may not have gone through with them”);

Statement of Cynthia Brown (“Being an engineer, I feel that

the more information and data in front of me the better, so

that I may make an educated decision on my own .. . I did

not receive any information.”); Statement of Esther

Ripplinger (“I am a woman who had an abortion because I

8

did not receive life-affirming information when I asked for

it.””).

Second, the women describe the clinic’s unwillingness to

provide any information on alternatives to abortion. See,

e.g., Statement of Bernadette Macy (“[T]Jhe Planned

Parenthood Clinic . . . gave me absolutely no supportive

alternatives to having an abortion.”); Statement of Amy

Seltzer (“I had the abortion because I was not told of any

alternatives. . . . This would have changed everything.”);

Statement of Esther Ripplinger (“At the clinic, | hoped they

would give compassionate advice. . . . 1 was not made aware

of the many community services available for pregnant

women.”); Statement of Molly White (“I did not know any

information . . . about abortion alternatives or crisis

pregnancy centers where I could go for information and help.

If I would have had this information I would have made a

more informed decision and would not have chosen

abortion.”).

In addition, many women feel that, in addition to the

clinic providing them with no alternatives, the clinic

personnel either stonewalled or actively misled them. See,

e.g., Statement of Molly White (“The abortion clinic workers

did not give me any factual information when I asked for it.

... 1 based a life taking, life altering decision on the lack of

factual information.”); Statement of Rosemary Fedor

(“[B]Jefore going to the abortion clinic they had advised me,

over the phone, not to look at or take anything from people

outside the clinic.”); Statement of Bernadette Macy

(“Planned Parenthood didn’t give me a clue about how

wonderful being a mother is and I believe they are in the

business of making money from abortion.’’); Statement of

Susanna Brennan (“I remember the counselor, in a

condescending, authoritative way, telling us in no way could

we afford a baby. . . . There was no other information given

to us at all—nothing about getting financial and other

assistance, what the actual act of abortion was, or what the

/

9

after effects would do to us. She presented it in a way that

there was no other choice. Period.”).

Third, these post-abortive women testify that they would

have benefited from more information because other

psychological, familial, and sometimes even physical

pressures were impairing their ability to choose. See, e.g.,

Statement of Anita Manninen (“I had an abortion when I was

15 years old, scared and stupid.”); Statement of Rosemary

Fedor (“At that time I was a very scared and confused girl.”’);

Statement of Esther Ripplinger (“I was a scared 19 year old

who wanted to please people. My boyfriend and his family

told me to get an abortion. I did what I was told.”);

Statement of Diane Doe (“The young man who was four

years older than me pressured me to seek an abortion.’’);

Statement of Dr. Alveda King (“There was adverse pressure

and threat of violence from the baby’s father.”).

Fourth, these women also regret that they did not receive

any information on abortion’s possible side effects in their

lives. See, e.g., Statement of Susan Swander (“I was never

informed of what I might experience after the abortions. My

consent was not informed.”); Statement of Amy Seltzer (“I

was not told of the risks to me. . .. This would have changed

everything.”); Statement of Cynthia Brown (“I did not

receive any information regarding the . . . physical,

psychological or emotional effects after an abortion from the

abortion clinic.”); Statement of Anita Manninen (“Our

marriage, my life and my heart were torn apart and ruined

because, a. I was not given the correct information, b. nor

was I ever told that there could be a better way instead of

aborting.’’). |

Fifth, these women describe how their decision would

have been different with more information. See, e.g.,

Statement of Susanna Brennan (“I believe if someone had

approached us outside of the clinic, I would be a proud

parent today.”); Statement of Marlynda Augelli (“If given

10

the choice again I would today have a thirty one year old

child.”); Statement of Bernadette Macy (“Now that I am

better informed, know my legal rights, and the support

systems that are nationwide, I would have never stepped into

that horrible clinic.”); Statement of Molly White (“If

someone was there to talk to me and give me this

information I would have decided against abortion.’’);

Statement of Dr. Alveda King (“I truly wish that I had

received more information about abortion prior to my

decision. .. . I would never have had an abortion.”).

\

Overall, as these post-abortive women attest from their

firsthand experiences, women who have undergone abortions

often regret their lack of information during | their

decisionmaking process. The Massachusetts buffer-zone

statute, by differentially restricting information in general

and speech on alternatives in particular, does a disservice to

all women who are searching for essential information about

their choices.

Il. THE FIRST AMENDMENT PROTECTS

PRIVATE SPEECH THAT ENABLES WOMEN

TO MAKE INFORMED CHOICES.

As demonstrated above, women considering abortion

have a vital interest in information about their choices.

These women do not want the government selectively

limiting how they can be provided that information in the

public forum. The First Amendment prevents the

government from doing just that by protecting all private

speech—regardless of viewpoint—in order to facilitate

informed decisionmaking.

Two fundamental principles of this Court’s First

Amendment jurisprudence protect the free speech nghts of

the petitioners and the corresponding interests of women.

First, the First Amendment favors more information rather

than less information, especially on fundamental and deeply

1]

personal decisions. Women contemplating abortion have a

direct interest in the uninhibited flow of information.

Second, the First Amendment ensures that the state does not

favor one speaker over another. Women have the right to

hear information from all viewpoints—information on

alternatives to abortion, as well as pro-clinic speech. The

First Amendment thereby protects the interests of women in

making fully informed decisions.

A. Women Have the Right To More

Information Rather Than Less Especially

On Fundamental Decisions.

Women considering abortion have the right to an

uninhibited flow of information about their choice, and the

First Amendment prevents the government from limiting

private speech that assists this informed decisionmaking.

Indeed, this Court has emphasized the vital importance of

having unrestricted access to information for individual

decisionmaking. See Peel vy. Att'y Registration and

Disciplinary Comm'n of Illinois, 496 U.S. 91, 108 (1990)

(“The [government’s] authority is necessarily constrained by

the First Amendment to the Federal Constitution, and

specifically by the principle that disclosure of truthful,

relevant information is more likely to make a positive

contribution to decisionmaking than is concealment of such

information.”); see also Martin H. Redish, Freedom of

Expression: A Critical Analysis 22 (1984) (noting that

“[f]ree speech aids all life-affecting decisionmaking, no

matter how personally limited, in much the same manner in

which it aids the political process.”).

This Court has been particularly cognizant of the

importance of information for decisionmaking in the context

of abortion. See Ohio v. Akron Ctr. for Reproductive Health

(Akron II), 497 U.S. 502, 520 (1990) (emphasizing the

importance of information for “the profound philosophic

Ee

12

choices confronted by a woman who is considering whether

to seek an abortion” because “[h]er decision will embrace

her own destiny and personal dignity, and the origins of the

other human life that lie within the embryo”); Danforth, 428

U.S. at 67 (“The decision to abort, indeed, is an important,

and often a stressful one, and it is desirable and imperative

that it be made with full knowledge of its nature and

consequences.”).

This Court’s recognition of the benefits of more

information in the context of abortion can be contrasted with

the experience of other countries—such as Hungary—that in _

the past have been far less concerned about the opportunity

for women to make fully informed decisions. See Judit

Sandor, From Ministry Orders Towards Constitutional

Debate: Lessons Drawn from the Past 50 Years of Abortion

Laws in Hungary, 18 Med. & L. 389, 396 (1999) (“Women

did not receive sufficient medical information before

obtaining abortions; potential disadvantages of the

procedure, and alternatives to it, were not explained to them

adequately. Most women believed that it carried no risk.

Concern for reproductive health was totally missing from the

health care system, in no small part because the

gynaecologists and obstetricians in Hungary are almost

exclusively men.”’).

In contrast to the information-restrictive Hungarian

regime, “France and other countries require [that each]

pregnant woman must be given information about

alternatives to abortion, opportunities for counseling, and

material assistance should she decide to continue the

pregnancy.” Mary Anne Glendon, A Beau Mentir Qui Vient

De Loin: The 1988 Canadian Abortion Decision In

Comparative Perspective, 83 Nw. U. L. Rev. 569, 583

(1989). While this Court’s jurisprudence has similarly

allowed some governmental speech to assist women in their

decisions, see Planned Parenthood v. Casey, 505 U.S. 833,

878, 882-883 (1992), the Court has been even more

, — . —— — — re

13

concerned with assisting women by preventing governmental

restrictions on private speech concerning fundamental

choices. See Griswold v. Connecticut, 381 U.S. 479, 482

(1965) (“[T]he State may not, consistently with the spirit of

the First Amendment, contract the spectrum of available

knowledge.”); cf: Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 302 (2000) (“[T]here is a crucial difference between

government speech endorsing religion, which the

Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses

protect.”) (quoting Board of Educ. of Westside Cmty. Schs.

(Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990) (opinion of

O’Connor, J.)).

Indeed, even in the traditionally less-protected area of

commercial speech, the Court has stressed, “[i]n case after

case following Virginia Bd. of Pharmacy,” the important

connection between speech and individual decisionmaking

by emphasizing the “importance of free dissemination of

information,” “the antipaternalistic premises of the First

| Amendment,” and the “impropriety of manipulating

| consumer choices or public opinion through the suppression

| of... information.” 44 Liguormart, Inc. v. Rhode Island,

517 U.S. 484, 520 (1996) (Thomas, J., concurring) (citing

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976) and subsequent

opinions by Justices Blackmun, Brennan, Kennedy,

Marshall, Powell, Rehnquist, Stevens, and White). It follows

a fortiori that the First Amendment protects non-commercial

speech—such as the speech of the petitioners—that concerns

individual decisionmaking on fundamental choices such as

abortion. See Metromedia, Inc. v. City of San Diego, 453

U.S. 490, 513 n.18 (1981) (noting that a statutory scheme

that “impacts more heavily on ideological than on

commercial speech” is “a peculiar inversion of First

Amendment values”) (quoting John Donnelly & Sons vy.

Campbell, 639 F.2d 6, 15-16 (1st Cir. 1980)).

14

The First Amendment thus safeguards the individual

decisionmaking power of women by protecting their interests

as listeners and prevents the government from selectively

limiting information. See Board of Educ. v. Pico, 457 US.

853, 867 (1982) (“{T]he right to receive ideas follows

ineluctably from the sender’s First Amendment right to send

them”); Virginia State Board of Pharmacy, 425 U.S. at 756

(“[T]Jhe protection afforded is to the communication, to its

source and to its recipient both.”); see also Charles Fried,

Saying What the Law Is: The Constitution in the Supreme

Court 80 (2004) (“[T]he First Amendment protects the

interests of both speakers and listeners, so that the nght of

people to annoy others with messages they would rather not

hear—as for instance in the case of protesters swarming

about the entrances to abortion clinics, or religious or

political solicitors ringing doorbells—is just as protected

from government interference as the night to read a book or

watch a film. . . . So the free speech right protects two

distinct rights: my right to expression and your right to be the

target of my expression. It protects communication.”’).

B. Women Have the Right To Hear

Information From All Speakers Regardless

of Viewpoint.

Women contemplating abortion have a constitutionally

protected interest in hearing speech from all viewpoints—

from the viewpoint of the petitioners as well as the viewpoint

of the clinic’s personnel. It is axiomatic that the First

Amendment prohibits the government from favoring one

speaker over another. See Rosenberger v. Rector, 515 U.S.

819, 828 (1995); Police Dep’t of City of Chicago v. Mosley,

408 U.S. 92, 97 (1972); see also Kathleen M. Sullivan &

Gerald Gunther, Constitutional Law 1155 (14th ed. 2001)

(“restriction of the expression of a particular point of view

[is] the paradigm violation of the First Amendment.”).

| |

15

“Discrimination against speech because of its message is

presumed to be unconstitutional.” Rosenberger, 515 U.S. at

828-829 (citing Turner Broad. Sys., Inc. v. FCC, 512 USS.

622, 642 (1994) (“Our precedents thus apply the most

exacting scrutiny to regulations that suppress, disadvantage,

or impose differential burdens on speech because of its

content”)); see also Hudgens vy. N.L.R.B., 424 U.S. 507, 520

(1976) (“Above all else, the First Amendment means that

government has no power to restrict expression because of

its message, its ideas, its subject matter, or its content.”).

Viewpoint-neutrality is particularly important for

women’s decisionmaking in the context of abortion because

the “First Amendment values of self-governance and

personal decision-making are undermined by the government

taking a side on the abortion issue and seeking to

indoctrinate the public with its viewpoint.” Janet Benshoof,

The Chastity Act: Government Manipulation of Abortion

Information and The First Amendment, 101 Harv. L. Rev.

1916, 1933-1334 (1988) (concluding that “neutrality

promotes women’s equality interests and furthers both

freedom of conscience and political decisionmaking.”).

Indeed, in Hill itself the Court emphasized that

viewpoint-neutrality was a necessary prerequisite for

maintaining the constitutionality of any buffer-zone statute:

[T]he relevant First Amendment point is that

the statute would prevent both [pro-abortion

and anti-abortion] speakers, unless welcome,

from entering the 8-foot zone. The statute is

not limited to those who oppose abortion. . . .

It applies to all ‘protest,’ to all ‘counseling,’

and to all demonstrators[,] . . . whether they

oppose or support . . . [the] abortion decision.

That is the level of neutrality that the

Constitution demands.

16

Hill v. Colorado, 530 U.S. 703, 725 (2000) (emphasis

added); see also id. at 719 (relying on “the State Supreme

Court’s unequivocal holding that the statute’s ‘restrictions

apply equally to all demonstrators, regardless of

viewpoint”).?

The Massachusetts buffer-zone statute, by contrast,

clearly does not satisfy this necessary prerequisite of

viewpoint-neutrality. Both on its face and as applied, the

Massachusetts statute permits pro-clinic speech while

proscribing pro-life speech.

On its face, the plain text of the buffer-zone statute

specifically exempts all “employees or agents of [the clinic]

acting within the scope of their employment” and all persons

“entering or leaving” the clinic. Mass. Gen. L. ch. 266,

§120E'(b)(1)-(2), (4). The first exemption—the “scope of

employment” exemption—ensures that any privileged

speech will necessarily express the clinic’s view. The

second exemption—the “entering or leaving” exemption—

similarly distinguishes speakers based on viewpoint because

those entering or leaving the clinic will be doing so on the

clinic’s business or with its permission. These two

exemptions, which allow pro-clinic speech while restricting

pro-life speech, make the Massachusetts _ statute

unconstitutional on its face because, as this Court has

consistently recognized, “an exemption from an otherwise

permissible regulation of speech [that] ‘attempt[s] to give

one side of a debatable public question an advantage in

expressing its views to the people’” is unconstitutional. City

> Many commentators have questioned whether the buffer-zone statute in

Hill actually met this stringent standard of neutrality. See, e.g., Kathleen M.

Sullivan & Gerald Gunther, Constitutional Law 1220 (14th ed. 2001)

(questioning whether “the law in Hill, by requiring listeners affirmatively to

consent to speech, ha[s] the likely effect of discriminating in favor of popular

or widely accepted messages and against those that are unorthodox or

unpopular, where the speaker must initiate contact because the listener will

not”); see also Pet. p. 24 n.8.

17

of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (quoting First

Nat'l Bank v. Bellotti, 435 U.S. 765, 785-786 (1978)).

As applied, the statute also permits pro-clinic speech

while restricting pro-life speech. To take just one simple

example of the overt disparity in the statute’s application,

clinic employees and their agents are entirely free to (and

frequently do) approach women without consent to say,

“You don’t have to listen to them,” while the petitioners

cannot approach women without consent to say, “You don’t

have to listen to them”—the exact same words. See, e.g.,

C.A. App. 479-480 (escorts “pretty regularly tell them they

don’t have to listen to us”); id. at 497-501 (noting regular

escort statements such as “You don’t have to pay attention to

these people,” “Stay away from them,” and “You don’t have

to listen to this B-I-T-C-H.”); see also Pet. p. 8-9 (citing a

plethora of examples from the record in which pro-life

speech is suppressed while pro-clinic speech is allowed).

Thus, the Massachusetts buffer-zone statute, both on its

face and in its application, clearly does not satisfy “the level

of neutrality that the Constitution demands.” Hill, 530 U.S.

at 725. By upholding the statute, the First Circuit Court of

Appeals not only deviated from this Court’s First

Amendment jurisprudence but, in so doing, significantly

impaired the ability of women to receive information

beneficial for making informed decisions. In respectfully

submitting this brief in support of the petitioners’ First

Amendment claim, amicae express their desire that the Court

protect their rights, and the rights of women similarly

situated, to receive information equally from all sources

without selective government interference.

18

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorartshould be granted.

Respectfully submitted,

MARY ANN GLENDON LUKE STANTON

Of Counsel Counsel of Record

1575 Massachusetts Ave. 24 Lexington Street

Cambridge, MA 02138 Waltham, MA 02452

(617) 495-4769 (781) 736-9600

COLBE MAZZARELLA

265 Essex Street, Suite 202

Salem, MA 01970

(617) 569-5971

March 14, 2005

APPENDIX

DESCRIPTIONS OF AMICAE

Dr. Alveda King, the daughter of civil mghts activist

Rev. A.D. King and the niece of Dr. Martin Luther King, Jr.,

had one involuntary and one voluntary abortion in the

1970’s. Her first abortion was performed by her private

physician without her consent; she “did not ask for and did

not want an abortion.” Her second abortion was “voluntary”

but undergone as a result of “adverse pressure” and the

“threat of violence” from the father; she explains that the

clinic personnel also misled her by making false assurances.

She now believes that every woman has “a right to know the

serious consequences and repercussions of making a decision

to abort her child” because “when women have information,

they can make informed and wise choices.”

Ms. Marlynda Augelli had an abortion in 1974 and

regrets that she had “no information” about the life of the

child. She indicates that she wishes that she had been “told

the truth” because, if she had known anything about the life

of the unborn child or if she had more information about

childbirth and being a mother, she “would have never made

the choice to end the life of [her] first child.”

Ms. Susanna Brennan had an abortion in 1975 in

Brighton, Massachusetts. She recalls “the counselor, in a

condescending, authoritative way, telling us in no way could

we afford a baby. . . . There was no other information given

to us at all—nothing about getting financial and other

assistance, what the actual act of abortion was, or what the

after effects would do to us. She presented it in a way that

there was no other choice. Period.” Ms. Brennan explains

that her abortion caused her and her husband to “individually

self-destruct” and eventually separate. She believes that “if

someone had approached us outside of the clinic, I would be

a proud parent today and perhaps even married to my

husband.”

2a

\

Ms. Cynthia Brown had an abortion in 1990. As an

engineer, she believes that “the more information and data in

front of me the better, so that I may make an educated

decision on my own.” However, she did not receive any

information regarding her baby’s stage of development or

the physical, psychological, or emotional effects after an

abortion. In counseling other women, she now conveys the

importance of taking time to think through the crisis,

obtaining reliable information, talking with someone

trustworthy, and praying before making a decision that will

affect the rest of one’s life.

Ms. Diane Doe* had abortions in 1972 and 1973 and

considers herself among those “not given the facts prior” to

her abortions. At the time, she says that she was “scared,

uneducated about how an; abortion was performed, and had

not read any books on pregnancy or talked to anyone about

it.” She “had no understanding of what the word 2nd

trimester meant when a Planned Parenthood person told [her]

that ‘time was of the essence.’” She believes that she was

“misled” and that it was an “injustice that we were not fully

informed prior to making a life and death decision of such

great magnitude.”

Ms. Maria Doe* chose to forego an abortion after

talking with Mary Anne McGuire outside of an abortion

clinic in New Bedford, Massachusetts. She was only able to

speak with Mary Anne McGuire within six feet because, at

the time, the New Bedford clinic had not painted the

eighteen-foot lines that are statutorily required to activate the

“buffer zone.” She concludes that “[t]he way Mary Anne

talked to me was the right way because she gave me all the

information about the abortion. A law like [the buffer-zone

statute] would make it difficult for a person like me who

didn’t know anything about abortion. It would be very, very

sad if a person like me could not get this information.”

Ms. Pilar Doe* chose to forego an abortion after talking

with pro-life counselors outside of an abortion clinic in

Brookline, Massachusetts. The pro-life counselors would

3a

not have been able to speak to her within six feet except that

the Brookline clinic had not demarcated the buffer zone lines

at that time. She explains that the counselors “became like

part of our family” but that “[i]f the people had to stay six

feet away it would be different” because “[n]o one is going

to listen to them.” She indicates that “[t]heir information

changed my life completely because it made me think

differently. Now we have a better life because of them.”

Ms. Rosemary Fedor had an abortion in 1997 and “did

not receive any pro-life literature,” even though this “could

have possibly changed my mind.” The abortion clinic had

advised her not to look at or take anything from the sidewalk

counselors outside the clinic. She says that “[l]ooking back I

wish I would have known; they were there to help me not

hurt me.”

Dr. Gail Hayes had abortions in 1977 and 1978 and did

not receive any pro-life information. She explains she might

have changed her mind if she knew that there were other

options, but that she only received information from the

clinic’s personnel. At the time, she wanted to know what

actually happens during the abortion. After suffering

physical and emotional pain as a result of her abortions, her

goal now is to help others “discover the truth about abortion

and its aftermath.”

Ms. Bernadette Macy had an abortion in 1993 and

recalls that Planned Parenthood “gave me absolutely no

supportive alternatives to having an abortion.” She felt that

she was “in such a vulnerable position” that she would have

been open to “any hopeful, encouraging, positive word” to

have the child. She regrets that “there is no warning to

young women about . . . what Planned Parenthood actually

does.”

Ms. Anita Manninen had an abortion when she was

fifteen and, in her words, “scared and stupid.” She believes

that her later problems with drugs, drinking, promiscuity,

and eventually divorce were directly attributable to her

abortion. She concludes that her marriage, her life, and her

ee nem

4a

heart were “torn apart and ruined” because she was “not

given the correct information [and] [n]ever told that there

could be a better way instead of aborting.”

Ms. Diane Penza had an abortion in 1980 and “did not

receive any pro-life information before [she] went into the

clinic.” She wishes that she would have had “someone to

talk to” because she explains that her only reason for having

the abortion was that her husband at the time was on heroin

and it seemed like the best thing to do.

Ms. Esther Ripplinger had an abortion at the age of

nineteen because she “did not receive life-affirming

information when [she] asked for it.” She hoped that the

clinic would give compassionate advice. However, she

explains how she was not made aware of the many

community services available for pregnant women. Instead,

she was “sold” abortion as a “quick-and-painless, routine

procedure” and was erroneously told that “beyond this point”

(viz., the laminaria procedure) “you must not change your

mind.”

Ms. Amy Seltzer says that she had an abortion in 1995

because she was not told of any alternatives. She explains

that if she would have been told of the risks to herself or

what would be done to her child, this would have “changed

everything.” She notes that, while there were pro-life people

outside the clinic, “they were seperated [sic] by a wall and

several yards away so they could not come into contact with

me.”

Ms. Susan Swander says that she had “absolutely NO

information” prior to any of her three abortions in 1968,

1974 and 1991. She states that “[m]y consent was not

informed,” and believes that, if she had gotten some

information, she may not have gone through with the

abortions. While formerly an “ardent pro-choice advocate”

for over thirty-six years, one of her current goals is to try to

get more information to parents who may be considering

abortion. She states that, because “I was never informed of

what I might experience after the abortions,” “I will do my

Sa

part to make sure that a// information is provided to women

who are considering an abortion.”

Ms. Molly White had abortions in 1981 and 1985 but

says that, if someone was there to talk to her and give her

more information, she would have made an “informed

decision” and “would not have chosen abortion.” She lacked

any information on fetal development, abortion procedures,

and the risks of abortion, as well as any information about

alternatives or crisis pregnancy centers. She recalls that

“(t]he abortion clinic workers did not give me factual

information when I asked for it.” Instead, she says that she

based a “life taking, life altering decision on the lack of

factual information,” and concludes that “[t]hey deceived

me and I fell for it.” She believes that her children would be

alive today if there had been sidewalk counselors in front of

the clinics where she went to have her abortions.

Ms. Cindy Williamson had an abortion at the age of

twenty-one but, after the abortion, turned to a life of

“destructive behavior.” Her addiction to drugs and alcohol

resulted in the loss of her job, loss of custody of her

daughter, and an overall feeling of not caring about anything.

She says that, while her daughter was the most important

thing in her life before she had the abortion, afterward she

felt as if she did not deserve to be a mother. For two years,

she has now been a volunteer at a pregnancy care center to

help counsel women who come in for a pregnancy test.