If (when) federal constitutional protections for abortions fall, each individual state will have the power to craft its own restrictions on the procedure. Still, the First Amendment might be able to offer a bit of cover to those who seek an abortion as a life choice. Justice Alito’s leaked opinion in Dobbs v. Jackson Women’s Health Organization even offers a blueprint.
Alito vociferously argues that the choice to terminate a pregnancy is not protected by any constitutional right of privacy. In fact, he correctly points out that the Constitution provides no explicit right to privacy at all. That right has been interpreted into the constitutional space by the courts and has long been controversial. Instead, the justice asserts over and over again that the decision regarding an individual’s right to choose to continue or to terminate a pregnancy is inherently political. He insists that it is a legislative question to be answered by that branch of each state government responsible for crafting laws.
We know any discussions about legislation and its implications and effects are, by definition, political. Political speech enjoys the highest level of protection the First Amendment can provide.
Political speech is not merely communication transmitted during campaigns or among politicians, legislators, lobbyists and activists. Any person expressing an opinion or engaging in conversation on a matter of public concern—whether that be matters of policy, morality, economics or the like—is engaging in political speech. The courts have extended expansive constitutional defenses, including providing cover to those who burn a cross when it serves as an expression of political ideology, to those who use threatening language in the heat of an argument, and to those who picket funerals of our soldiers disparaging both the soldiers and the United States government. The ideas expressed by the speakers serve as a commentary on matters affecting the public. Although such speech might be immoral, disturbing or offensive and therefore…Read More
Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Instagram @LynnGreenky.