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Free Speech & Abortion: The First Amendment Case Against Free Speech & Abortion: The First Amendment Case Against
Compelled Motherhood Compelled Motherhood
Raymond Shih Ray Ku
Case Western University School of Law
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Abstract
The most important lessons are taught by example. Children learn the fundamental values that
guide them throughout their lives from the examples set by their parents, especially their mothers.
Even before they understand a language, they learn by observing and imitating the actions of their
parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine
whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is
the most significant and controversial aspect of this freedom. The Supreme Court is now poised
to overturn what it previously described as the central holding of Roe and allow state governments
to restrict abortions prior to viability. If this occurs, it will not be because of an erosion of
precedential authority. Instead, it will result from decades of concerted efforts to pack the Supreme
Court with Justices who reject the premise that the substantive due process guaranteed by the
Fourteenth Amendment limits the power of the states. Whether the Fourteenth Amendment
independently restricts the power of states to regulate abortion, however, is not the focus of this
essay. Instead, this essay argues that parallel developments in First Amendment law not only
reinforce the traditional justification for safeguarding a woman’s freedom to determine whether to
continue the course of a pregnancy, but provides an independent justification for subjecting
abortion restrictions to heightened judicial scrutiny. Over the past fifty years, Justices that would
restrict the Fourteenth Amendment’s role in guaranteeing individual liberty have successfully
argued for a greater role for the First Amendment. Government regulation of conduct, especially
commercial conduct, previously not recognized as protected speech have increasingly been subject
to heightened judicial scrutiny and, in some cases, categorical protection. This essay examines
two recent cases, Masterpiece Cakeshop v. Colorado Civil Rights Comm. and Sorrell v. IMS
Health, Inc., in which the Justices were required to consider whether the First Amendment and its
protection of speech applied to conduct that would not traditionally have been considered speech.
These cases highlight both the substantive and strategic value of (re)considering the myriad ways
in which conduct is expressive or otherwise integral to expression and the nature of judicial review.
When applied to abortion, this line of reasoning illuminates the expressive values at stake with
pregnancy and childbirth; why abortion restrictions must be carefully scrutinized to ensure that
they do in fact promote a legitimate interest in protecting the welfare of mother and child; and to
prevent governing majorities from using childbirth to endorse and celebrate moral beliefs that are
not shared by the pregnant woman and may be antithetical to her interests and the interests of a
child.
Free Speech &
Abortion 2
ESSAY
Free Speech & Abortion:
The First Amendment Case Against Compelled Motherhood
Raymond Shih Ray Ku
1
I. Introduction
The most important lessons are taught by example. Children learn the fundamental values that
guide them throughout their lives from the examples set by their parents, especially their mothers.
Even before they understand a language, they learn by observing and imitating the actions of their
parents. For almost fifty years, the Fourteenth Amendment of the United States Constitution has
protected a woman’s freedom to determine whether and when to become a mother.
2
After decades
of partisan political pressure and maneuvering, a new conservative majority appears poised to
fundamentally change if not overturn Roe v. Wade, and its central holding that governing
majorities may not substitute their judgment for the judgment of the pregnant individual until the
fetus becomes a person capable of surviving outside of the womb.
3
In Dobbs v. Jackson Women’s
Health Org., the Supreme Court will consider whether a state may substitute its own judgment
after the fifteenth week of pregnancy rather than the twenty-fourth normally associated with
viability.
4
In anticipation of the appointments of Justices Kavanaugh and Coney Barrett,
Mississippi and other states enacted laws in direct conflict with Roe.
5
For example, Ohio enacted
a law that prohibits abortions once a fetal heartbeat may be detected, and makes no exception for
1
Professor of Law, Laura B. Chisolm Distinguished Research Scholar, Case Western Reserve University
School of Law. I would like to thank Bryan Adamson, Caroline Corbin, Jessie Hill, and Steve Shiffrin for
providing feedback on earlier versions of this essay.
2
This essay recognizes that individuals of all gender identities, including transgender men and non-
conforming individuals, may become pregnant and seek an abortion; it uses “woman” or “women” as
shorthand when referring to individuals that may become pregnant and must decide whether to carry the
pregnancy to term because abortion restrictions disproportionately affect individuals assigned female at
birth and are often targeted specially because of this assignment.
3
Roe v. Wade, 410 U.S. 113, 162 (1973) (”we do not agree that, by adopting one theory of life, Texas may
override the rights of the pregnant woman that are at stake.”); Planned Parenthood v. Casey, 505 U.S. 833,
858 (1992) (“Even on the assumption that the central holding of Roe was in error, that error would go only
to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to
the woman’s liberty.”)
4
945 F.3d 256 (5th Cir. 2019), cert. granted ___ S. Ct. ___, 2021 WL 1951792 (Mem) (May 17, 2021).
5
See, e.g., Emma Brown, More Abortion Restrictions Have Been Enacted in the U.S. This Year than in
Any Other, NPR (Jul 9, 2021) (detailing new anti-abortion laws passed in anticipation of the new Supreme
Court majority).
43 CARDOZO L. REV. ___ 3
cases of rape or incest.
6
Alabama enacted a law that prohibits all abortions except in cases in
which the woman’s life is threatened or there is a lethal fetal anomaly.
7
While courts have
routinely stayed the implementation of these laws,
8
anti-abortion advocates hope that the six
conservative Justices, especially the five Catholic Justices, will conclude that the Fourteenth
Amendment no longer limits the power of states to regulate, including ban, abortion prior to
viability. Whether the Fourteenth Amendment independently restricts the power of state to
regulate abortion because a state’s interest in protecting life cannot outweigh a woman’s liberty
interest is not the focus of this essay. Instead, this essay argues that the First Amendment
guarantees the pregnant woman the freedom to determine the course of their pregnancy and to
determine when motherhood is in their best interest and the best interests of her child. This is true
even when the asserted state interest is protecting prenatal life. Pregnancy and motherhood are
expressive conduct under the Supreme Court’s current understanding of freedom of speech, and
laws restricting abortion coerce the pregnant to express and/or endorse messages they refuse to
express.
Recognizing the fundamental expressive values implicated in compelling the pregnant to become
mothers sheds new light on the liberty interests the Supreme Court previously recognized with
regard to abortion.
9
Moreover, the First Amendment’s prohibition against compelled expression,
limits upon content and viewpoint based restrictions, and the scrutiny demanded when laws
regulate both conduct and expression provide a more objective framework for evaluating the
interests at stake.
10
This framework is not only more appropriate for evaluating the interests at
stake, it exposes the false modesty of judicial deference in substantive due process cases. To the
extent that Supreme Court has expanded the reach of the First Amendment in cases involving
economic conduct, a corresponding recognition of the expressive interests at stake when women
are compelled to identify as mothers reveals the unconstitutional of nature of restricting access to
abortion even for the laudable purpose of protecting the unborn.
This essay begins by explaining and evaluating the Supreme Court’s most recent decisions that
consider whether and how the regulation of economic activities may conflict with interests
protected by the First Amendment. Part II.A. discusses the Justices’ current approach towards
6
See OH ST §§ 2919.191 et seq. (2019); Gabe Rosenberg, A Bill Banning Most Abortions Becomes Law
in Ohio, NPR (Apr. 11, 2019).
7
See AL ST §§ 26-23H et seq. (2019).
8
The Supreme Court recently broke with this practice when a majority of the justices allowed a Texas law
authorizing private individuals to seek statutory damages against anyone performing or otherwise aiding in
the abortion of a fetus after a “fetal heartbeat” may be detected to take effect. See Whole Woman’s Health
v. Austin Reeve Jackson, 594 U.S. ___ (2021)
9
While this essay focuses upon the relationship between abortion and speech as I subsequently note the
First Amendment’s protection of freedom of association and religion are also implicated.
10
See infra Part III.
Free Speech &
Abortion 4
speech in Masterpiece Cakeshop v Colo. Civil Rights
11
and Sorrell v IMS Health Inc.
12
These
decisions suggest that laws governing commercial transactions may implicate First Amendment
concerns by dictating what information or beliefs may be conveyed through those transactions.
When individuals are required to engage or refrain from conduct, their actions may take on
symbolic meaning or play an integral role in facilitating speech protected under the First
Amendment. Part II.B. explains the value of considering whether expression is implicated when
regulating what may traditionally have been considered non-expressive conduct, and why
appreciating the legitimate reasons for testing the limits of expression still demands a healthy
degree of skepticism.
Part II.C. explains how the deferential standard of review developed in response to an earlier case
involving the commercial relationship of bakers, the Supreme Court’s seminal decision in Lochner
v. New York,
13
both explains and justifies further consideration of the relationship between
regulating conduct and concerns underlying the First Amendment’s protection of speech. In its
basic application, the rational basis test is not a standard of judicial review but a method of masking
judicial bias for the ostensible purpose of deferring to elected representatives. In contrast, when
expressive values are at stake courts must independently determine that the purpose of the
restriction is legitimate and that the means chosen fit that purpose without unduly intruding upon
protected liberties.
Part III. examines how a more expansive understanding of expression can be applied beyond
commercial conduct. Under the principle of what’s good for the goose is good for the gander, Part
III.A. identifies the expression implicated by carrying a pregnancy to term; and explains why a
woman’s interests in motherhood should receive the same First Amendment consideration as
bakers and data brokers. Laws prohibiting abortion compel women to assume the role of mother
and to convey the corresponding beliefs and values that motherhood entails. With respect to
expression, this includes the transfer and sharing of information and beliefs, endorsing and
celebrating moral and sectarian religious beliefs in which birth outweighs all other interests
including whether the mother is ready and capable of providing for the physical and emotional
needs of the child, the relationship between mother and child, and a woman’s place in society.
Having explained the expressive interests at stake, Part III.B. argues that laws prohibiting abortion
violate the First Amendment because they infringe the woman’s freedom to share and express
beliefs in the manner of her own choosing, and are unrelated to the government’s power to protect
health and safety. This is true even if the professed purpose is protecting the health and safety of
11
__ U.S. __, 138 S. Ct. 1719 (2018).
12
564 U.S. 552 (2011).
13
198 U.S. 45 (1905). See, e.g., Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987)
(discussing the significance of the Lochner decision).
43 CARDOZO L. REV. ___ 5
the unborn. Relying upon the findings of the landmark 2020 TURNAWAY STUDY,
14
the essay
illustrates why abortion restrictions do not advance a state’s legitimate interest in protecting the
health and safety of its citizens.
Lastly, Part III.C. explains the parallel problems raised by freedom of contract and reproduction,
and how reproductive freedom may face the same Fourteenth Amendment obstacles as the freedom
to contract. However, even if the Supreme Court concludes that the Fourteenth Amendment
requires courts to defer to a legislative judgement that abortion can be prohibited to protect the
unborn, the First Amendment requires judges to independently evaluate whether those laws
legitimately serve that interest. Good intentions alone are insufficient to invade individual liberty
if that invasion does not serve the purpose of safeguarding the life of the child. Courts should not
be allowed create a fictional world that allows them to ignore the real consequences to of denying
access to abortion. If laws restricting abortion will no longer be reviewed by courts under privacy
and autonomy, women, like the bakers that preceded them, should find protection under the First
Amendment.
II. The First Amendment & Freedom of Contract
The First Amendment specifically refers to freedom of speech and of the press, but the
Amendment’s protection extends beyond the literal and protects expression and association more
generally. Freedom of speech protects individual expression even when the means of expression
do not involve face to face verbal communication or the printing books, newspapers, and
pamphlets.
15
Among other acts, the First Amendment applies to the freedom to engage or refuse
to engage in symbolic acts such as saluting,
16
wearing armbands,
17
burning flags,
18
displaying a a
license plate,
19
or marching in a parade.
20
Likewise, freedom of speech includes the freedom to
determine when to join together with others,”
21
denies government the authority to dictate the terms
of those relationships, especially with whom they must associate.
22
14
DIANA GREEN FOSTER, THE TURNAWAY STUDY (Scribner 2020).
15
See Frederick Schauer, The Boundaries of the First Amendment. A Preliminary Exploration of
Constitutional Salience, 117 HARV. L. REV. 1765, 1773 (2004) ("That the boundaries of the First
Amendment are delineated by the ordinary language meaning of the word 'speech' is simply implausible.").
16
See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
17
See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).
18
See Texas v. Johnson, 491 U.S. 397 (1989).
19
See Wooley v. Maynard, 430 U.S. 705 (1977).
20
See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)
(holding that the First Amendment protects the freedom of parade organizers to decide who may march in
their parade).
21
NAACP v. Alabama 357 U.S. 449, 461 (1958) (“to engage in association for the advancement of beliefs
and ideas….”).
22
See Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Free Speech &
Abortion 6
Despite the broad scope of protection, First Amendment doctrine still focuses on speech. Whether
conduct is considered sufficiently expressive to be protected speech has considerable implications
not simply as a predicate to a First Amendment claim, but, for determining the applicable standard
of review. Under established free speech doctrine, laws based upon the content of speech, the
viewpoint expressed, or that compel individuals to refrain from or engage in expression are
presumptively unconstitutional, and will only be considered permissible if they survive strict
scrutiny.
23
Correspondingly, content neutral laws that regulate both conduct and expression must
survive intermediate scrutiny in which requires that the law serve a substantial government purpose
unrelated to expression and that the means chosen interfere with the expression interests no more
than necessary to achieve that purpose.
24
In contrast, when expression is not present state
regulation of conduct is considered presumptively constitutional and courts must only determine
whether the law is rationally related to a legitimate government interest, or in other words, is not
arbitrary or capricious.
25
As such, a judicial determination that an act is speech has significant
practical consequences and may even be dispositive. For example, Gerald Gunther famously
described strict scrutiny as “‘strict’ in theory and fatal in fact.”
26
And, scholars have described the
rational basis test as “toothless in truth.”
27
Therefore, it should come as no surprise that litigants
have an incentive to engage in what Fredrick Schauer describes as “First Amendment
opportunism”
28
in the hopes of achieving what Leslie Kendrick describes as “First Amendment
expansionism.”
29
But what is speech? After thousands of years of human interaction, one would think the answer
would be simple.
30
Such a belief would be wrong for two reasons. First, human creativity and
ingenuity continuously expand our opportunities for expression. The framers of the constitution
could not have imagined the advent of motion pictures, broadcast radio and television, or the
Internet. Second, society in general and courts in particular may recognize the expressive nature
of conduct not traditionally considered speech such as parades, the wearing of armbands, the
burning of flags, or access to social media. Under these circumstances, judges engage in what has
been described as translation, in which the First Amendment’s existing protection is logically
extended to previously unrecognized expression.
31
23
See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011).
24
See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
25
See infra Part II.C.
26
Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a
Changing Court: A Model for a Newer Equal Protection, 86 H
ARV. L. REV. 1, 8 (1972).
27
See Lynn S. Branham, Toothless in Truth? The Ethereal Rational Basis Test and the Prison Litigation
Reform Act’s Disparate Restrictions on Attorney’s Fees, 89 C
AL. L. REV. 999 (2001).
28
Frederick Schauer, First Amendment Opportunism, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN
ERA 175, 176 (Lee C. Bollinger & Geoffrey Stone eds., 2002) [hereinafter OPPORTUNISM].
29
Leslie Kendrick, First Amendment Expansionism, 56 WM. & MARY L. REV. 1199 (2015).
30
See Amanda Shanor, First Amendment Coverage, 98 N.Y.U L. REV. 318 (2018).
31
See Brown v. Entertainment Merchants Assn., 564 U.S. 786 (2011) (protecting video games as
expression); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952) (concluding that “expression by
43 CARDOZO L. REV. ___ 7
However, what qualifies as speech can also be expanded for strategic or political ends.
32
Under
certain circumstances, the connection between conduct and expression is merely plausible.
33
As
mentioned above and explained in detail below, there are significant doctrinal and practical
benefits to labeling an act speech rather than conduct. During the same fifty years that
conservatives argued for overturning Roe, many of these same conservative justices, from the
Burger Court to the Roberts Court, have expanded the coverage of the First Amendment to include
political contributions,
34
commercial advertising,
35
access to the means of transmitting data,
36
the
selling of video games,
37
the sale of prescription data,
38
the ownership of trademarks,
39
surcharges
on credit card purchases,
40
and the sale of baked goods,
41
commercial activities that were neither
traditionally nor inherently protected speech.
Critics argue that these doctrinal developments have more to do with a conservative agenda to
insulate business interests and enshrine conservative social values than the protection of legitimate
First Amendment interests.
42
This essay will not dive into the debate over the definitional
boundary between protected speech and unprotected acts,
43
but instead “takes up the banner of
radical reform” by acknowledging the “tension between judicial civil libertarianism and judicial
deference to economic regulation,”
44
and why freedom of expression may ease some of that
tension. While there are legitimate reasons to reject the conclusion that the First Amendment
means of motion pictures is included within the free speech and free press guaranty of the First and
Fourteenth Amendments.”)
32
OPPORTUNISM, supra note 27 at 191 ("In numerous other instances, political, social, cultural, ideological,
economic, and moral claims that are far wider than the First Amendment, and that appear to have no special
philosophical or historical affinity with the First Amendment, find themselves transmogrified into First
Amendment arguments.").
33
See Frederick Schauer, The Politics and Incentives of First Amendment Coverage, 56 Wm. Mary L. Rev.
1613 (2015) [hereinafter Coverage]; Shanor, supra note 29.
34
See Buckley v. Valeo, 424 U.S. 1 (1976).
35
See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
36
See Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622 (1994). See also, Raymond Shih Ray Ku,
Free Speech & Net Neutrality: A Response to Justice Kavanaugh, 80 U. P
ITT. L. REV. 855 (2018-2019)
(considering Justice Kavanaugh’s understanding of the free speech claims of Internet service providers).
37
See Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011).
38
See Sorrell v IMS Health Inc., 564 U.S. 552 (2011).
39
See Matal v Tam, 582 U.S. ___, 137 S. Ct. 1744 (2017).
40
See Expressions Hair Design, __ U.S. __, 137 S.Ct. 1144 (2017)
41
See Masterpiece Cakeshop, 584 U.S. ___, 138 S.Ct. 1719 (2018).
42
See Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66
S
TAN. L. REV. 1205 (2014); Leslie Kendrick, First Amendment Expansionism, 56 WM. & MARY L. REV. 1199
(2015); Elizabeth Sepper, Free Exercise Lochnerism, 115 C
OLUM. L. REV. 1453 (2015); Amanda Shanor,
The New Lochner, 2016 W
IS. L. REV. 133.
43
See Caroline Mala Corbin, Speech or Conduct - The Free Speech Claims of Wedding Vendors, 65 EMORY
L.J. 241 (2015); Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of
Conduct, Situation-Altering Utterances, and the Uncharted Zones, 90 C
ORNELL L. REV. 1277 (2005).
44
Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 COLUM. L. REV. 1915, 2001
(2016).
Free Speech &
Abortion 8
prohibits governments from regulating the offering of goods and services, the Supreme Court’s
efforts to consider whether these acts are expressive, present a new and valuable insight into the
constitutional role of the First Amendment. In Expressions Hair Design v. Schneiderman, Justice
Breyer cautioned against an expansive definition of speech because, “virtually all government
regulations affect speech. Human relations take place through speech. And human relations
include community activities of all kinds -- commercial and otherwise.”
45
Even if one agrees with
Justice Breyer that all “human relations take place through speech,” the ubiquity of expression and
its connection to human relations alone should not dismiss whether expressive values are at risk.
As the old saying goes, actions can speak louder than words.
A. Of Bakers and Data Brokers
Are cakes speech, the act of baking them expression, and what message, if any, do their sales
convey? When a baker refuses to comply with anti-discrimination laws is that refusal protected
by the First Amendment? These questions were presented to the Supreme Court in Masterpiece
Cakeshop v. Colo. Civil Rights after a baker refused to bake a wedding cake for a same-sex
wedding.
46
The baker argued that requiring him to do so violated his freedom of expression and
exercise of religion.
47
And while a majority of the Justices agreed that the baker in that case did
not receive a fair hearing, it left the free speech questions for another day.
48
What follows is not
a detailed analysis of the decision itself, the arguments of the justices, or the commentary that
surrounds it. Instead, the decision introduces readers to the questions presented in cases like
Masterpiece Cakeshop which require courts to determine when and how the First Amendment
applies to conduct that rises to the level of expression or gives rise to expression.
49
The controversy in Masterpiece Cakeshop arose because a baker refused to provide a wedding
cake for a same-sex couple’s wedding arguing that doing so would violate his First Amendment
rights to freedom of speech and religion.
50
The Colorado Civil Rights Division investigated after
the couple lodged a complaint under the Colorado Anti-Discrimination Act.
51
The investigation
found that the baker had “turned away customers on the basis of their sexual orientation,”
52
by
refusing to “create” wedding cakes, but also at least one instance in which he refused to sell
45
Expressions Hair Design, 137 S. Ct. at 1152 (Breyer, J. conc).
46
Masterpiece Cakeshop, 138 S. Ct. at 1723.
47
Id.
48
Id. at 1731-32.
49
See Eugene Volokh, The Law of Compelled Speech, 97 TEX. L. REV. 355, 382-384 (2018) (arguing that
the First Amendment protects individuals from government compulsion to create). [hereinafter Compelled
Speech]. But see Ashutosh Bhagwat, Producing Speech, 56 W
M. & MARY L. REV. 1029 (2015) (concluding
that commercial businesses may be compelled to produce speech under antidiscrimination laws).
50
Masterpiece Cakeshop, 138 S. Ct. at 1724.
51
Id. at 1725.
52
Id. at 1725.
43 CARDOZO L. REV. ___ 9
cupcakes that would be consumed at a same-sex commitment ceremony.
53
In the latter instance,
he informed that couple that his store “had a policy of not selling baked goods to same-sex couples
for this type of event.”
54
The Supreme Court ultimately ruled in favor of the baker concluding that
the members of the state commission considering his appeal were openly hostile to religion.
55
Because it was unclear whether the wedding cake was a special item, the Court left the free speech
question for another day.
56
Even though the majority in Masterpiece Cakeshop did not address the question, the answer is
important because as Justice Thomas notes in his concurring opinion:
[T]his Court has distinguished between regulations of speech and regulations of conduct. The latter generally
do not abridge freedom of speech, even if they impose “incidental burdens” on expression.
57
With respect to anti-discrimination laws, like those in Colorado, prohibiting discrimination based
upon race, gender, religion, and other protected traits are consistent with the First Amendment
because discrimination is conduct.
58
As Thomas notes, “as a general matter,” public
accommodations laws do not “target speech” but instead prohibit “the act of discrimination against
individuals in the provision of publicly available goods, privileges, and services.”
59
However,
citing the Supreme Court’s decisions holding that the First Amendment protected the decision of
the organizers of a St. Patrick’s Day parade to exclude gay groups from openly marching in the
parade and permitted the Boy Scouts of America to bar homosexuals from serving as troop
leaders,
60
Justice Thomas argues that when, “‘speech itself is to be the public accommodation’ the
First Amendment applies with full force.”
61
So even though the Masterpiece Cakeshop majority
53
Id. at 1726.
54
Id.
55
Masterpiece Cakeshop, 138 S. Ct. at 1732,
56
While this essay focuses upon the First Amendment’s protection of speech, the concerns and
observations are relevant to claims of freedom of religion as well. For an excellent analysis of these issues
prior to the Supreme Court’s decision in Masterpiece Cakeshop see Caroline Mala Corbin, Speech Conduct
- The Free Speech Claims of Wedding Vendors, 65 E
MORY L. J. 241, 248 (2015) (discussing the parallels
between the freedom of speech and religion claims). Freedom of religion is arguably even more relevant
following the Supreme Court’s decisions in Fulton v. City of Philadelphia, ___ U.S. ___ (2021) and Tandon
v. Newsom, 593 U.S. ___ (2021) (per curium) in which the Supreme Court expanded the Constitution’s
protection of individuals based upon their religious beliefs. Given that women seeking abortions do so
because of sincerely held religious and moral beliefs, freedom of religion is likewise relevant and requires
further consideration.
57
Masterpiece Cakeshop, 138 S. Ct. at 1741 (Thomas, J. dissenting).
58
Id.
59
Id. (citations omitted emphasis in original).
60
Id.
61
Id.
Free Speech &
Abortion 10
did not address the question, it remains relevant and will inevitably require an answer from the
Supreme Court.
62
In Masterpiece Cakeshop, the baker argued that the Colorado Anti-Discrimination Act violated
his freedom of speech “by compelling him to exercise artistic talents to express a message with
which he disagreed.”
63
Importantly, he did not argue that he was compelled to compose or adopt
a specific message, either written or visual.
64
He was not asked to write a message or place an
image on the cake. Instead, the baker argued that the act of selling the wedding cake was itself
speech.
65
Conduct, however, does not become speech simply because it may “be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to express an idea.”
66
The First
Amendment applies to “conduct that is inherently expressive” and attributable to the actor.
67
According to the Supreme Court, this requires 1) the intent to convey a particularized message,
and 2) in light of the circumstances the message would be understood by its viewers.
68
Under this
approach, saluting
69
or burning the American flag,
70
wearing armbands,
71
and marching in parades
have all been considered protected speech.
72
Three Justices agreed with the baker that Colorado compelled him to convey the message that
same-sex marriages are marriages and that they should be celebrated. In a concurring opinion for
himself and Justice Alito, Justice Gorsuch concluded that not only does a cake without words
convey a message, but it conveys the very message the baker wanted to avoid. “Words or not and
whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-
62
See, e.g., Nelson Photography v. Louisville, 479 F. Supp.3d 543 (W.D. KY 2020) (concluding that a
wedding photographer’s freedom of speech was violated by anti-discrimination law that required her to
photograph same sex weddings); Washington v. Arlene’s Flowers Inc., 187 Wash.2d 804 (2017) (denying
free speech claim of florist who refused to provide flowers to a same sex wedding), cert. granted, vacated
and remanded, 138 S. Ct. 2671 (2018) (further consideration in light of Masterpiece Cakeshop), on remand
193 Wash.2d 469 (2019) (concluding that a florist’s freedom of speech was not violated), cert. denied, __
S. Ct. __ (2021), 2021 WL 2742795; Elaine Photography, LLC v. Willock, 284 P.3d 428 (N.M. Ct. App.
2012), cert. denied 572 U.S. 1046 (2014) (rejecting the Free Speech claim of a photographer who refused
to photograph a same sex wedding).
63
Masterpiece Cakeshop, 138 S. Ct. at 1726
64
See Agency for Int’l Development v. Alliance for Open Society Int’l, 570 U.S. 205 (2013) (holding that the
First Amendment prohibited government from requiring funding recipients “to adopt a particular belief”).
65
Masterpiece Cakeshop, 138 S. Ct. at 1728.
66
United States v. O’Brien 391 U.S. 367, 376 (1968).
67
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (concluding that
requiring law schools could not prohibit military recruiters for recruiting on campus despite the schools’
unwilling to be associated with the military’s “don’t ask, don’t tell” policy.).
68
Spence v. Washington, 418 U.S. 405, 411 (1974) (“An intent to convey a particularized message was
present, and in the surrounding circumstances the likelihood was great that the message would be
understood by those who viewed it.”).
69
See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
70
See Texas v. Johnson, 491 U.S. 397 (1989).
71
See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).
72
See Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
43 CARDOZO L. REV. ___ 11
sex couple it celebrates a same-sex wedding.”
73
In other words, the cake is a symbol equivalent to
“an emblem or flag.”
74
Following this logic, Colorado violated the baker’s freedom of speech by
forcing the baker to provide a flag to be used by others to express a message he did not share.
75
Writing for himself and Justice Gorsuch, Justice Thomas considered the baking of a wedding cake
to be expressive and entitled to First Amendment protection. First, “creating and designing custom
wedding cakes” should be considered speech.
76
The Justices found it important that the baker
“considers himself an artist” and the creation of cakes requires, “sketching the design out on paper,
choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake,
decorating it, and delivering it to the wedding.”
77
Second, like Justice Gorsuch, Justice Thomas
understood wedding cakes to convey a symbolic message, and he agreed with the baker that the
cake communicates that “‘a wedding has occurred, a marriage has begun, and the couple should
be celebrated.’”
78
Finally, the baker’s customary involvement with wedding cakes further
supported the conclusion that his conduct was expressive. Justice Thomas explains that the baker
personally consults with the couple, delivers the cake, “a focal point of the wedding celebration,”
and may stay and interact with guests at the event, and attendees will recognize the cake as the
baker’s creation and subsequently seek his services.
79
Under these facts, Justice Thomas concludes
that Colorado law would require the baker to use his artistic talent to “acknowledge that same-sex
weddings are “weddings” and suggest that they should be celebrated,” both ideas with which he
disagrees.
80
73
Masterpiece Cakeshop, 138 S. Ct. at 1738 (Gorsuch, J. conc.).
74
Id. (Like ‘‘an emblem or flag,’’ a cake for a same-sex wedding is a symbol that serves as ‘‘a short cut
from mind to mind,’’ signifying approval of a specific ‘‘system, idea, [or] institution.’’) (quoting West Virginia
Bd. of Ed., 319 U.S. at 63).
75
This description, however, does not accurately capture the issue raised in Masterpiece Cakeshop.
Assuming that the First Amendment guarantees bakers the freedom to decide to bake cakes, as opposed
to pies, and how to design those cakes, the Colorado law did not interfere with either of those decisions.
Instead, the law limits the baker's discretion to refuse service to a customer interested in purchasing what
the baker offered to the public. While the First Amendment prohibits the government from forcing a writer
to write or to dictate the contents of that writing, the writer’s freedom of expression is not violated because
their words are read or used by someone with whom they disagree. [property cases]
76
Masterpiece Cakeshop, 138 S. Ct. at 1742.
77
Id. at 1742-43.
78
Id. at 1743
79
Id.
80
Id. at 1744. See Volokh, Compelled Speech, supra note 48 at 383 (arguing that even in absence of
endorsement, the compulsion “still involves people being required ‘to foster … concepts’ with which they
disagree and ‘to be an instrument for fostering public adherence’ to a view that they disapprove of -- Wooley
tells us this is unconstitutional.”). But see, Bhagwat, supra note 48 (arguing that protection for “producing
speech must be limited is because producing speech can involve a wide range of conduct that can cause
social harm entirely independent of the communicative impact of the eventual speech.”); Steven H. Shiffrin,
What is Wrong with Compelled Speech?, 29 J. L. & P
OL. 499, 506 (2014) (arguing that requiring a wedding
photographer to capture photos at a gay wedding does not force photographers “to be couriers of messages
to which they are ideologically opposed.”). Steven Shiffrin argues that “[t]he First Amendment inquiry
focuses on what is objectively conveyed through the photographs;” and wedding photos do not say anything
Free Speech &
Abortion 12
In a dissenting opinion joined by Justice Sotomayor, Justice Ginsburg argues that neither the
creation of wedding cakes, in particular, or the provision of baked goods, in general, constitutes
expressive conduct. According to Ginsburg, the baker's conduct in Masterpiece Cakeshop could
not be “reasonably understood by an observer to be communicative.”
81
There was no evidence
that an objective observer would understand “a wedding cake to convey a message, much less that
the observer understands the message to be the baker’s, rather than the marrying couple’s.”
82
In
other words, accepting the argument that a wedding cake symbolizes that the event is a wedding
and that the wedding should be celebrated, these messages are not reasonably attributed to the
baker. In fact, no reasonable observer would know the baker’s identity unless that information
was communicated by more than the cake itself. In contrast a message of endorsement might
reasonably be perceived if the law required the baker to publicly communicate his involvement to
the wedding guests or if the baker was required to personally participate in the ceremony or attend
the event. In light of these opinions, the question of whether the conduct was expressive turned
upon who determines the symbolism associated with a service or product, the producer or the
audience.
83
While a dispute over wedding cakes might seem trivial to some, Masterpiece Cakeshop raises
important questions about the relationship between conduct and speech. The baker created the
cake, and imbued the cake with his culinary and aesthetic choices. As noted by Justice Thomas,
it is completely plausible to consider the baker an artist and cakes his works of art. From a First
Amendment perspective, without any additional content, is that protected speech?
84
If so, then the
about the morality of the wedding, but capture the event.) Id. at 507. Cf. Laurence H. Tribe, Disentangling
Symmetries: Speech, Association, Parenthood, 28 P
EPP. L. REV. 641, 647 (2001) (arguing that “the cases
supposedly standing for the proposition that there is a right not to speak … stand for a right that is related
to speech, in the sense that it involves the right not to be used as a vehicle for speech, but not for a right
that is reducible to a right to be silent or a right to prevent misattribution...”).
81
Masterpiece Cakeshop, 138 S. Ct. at 1749, n.1 (Ginsburg, J diss.)
82
Id. Accord Wash. v. Arlene’s Flowers, 293 Wash.2d at 511-513 (concluding that a floral arrangement did
not “actually communicate something to the public at large” and is not inherently expressive).
83
Arguably whether the cake itself is expressive is a First Amendment red herring. Because of the limited
message conveyed by the cake, the fundamental question is whether the relationship created by the sale
of the cake implicates the baker’s freedom of association or expressive association. As discussed later,
these cases may be better understood through the First Amendment lens of association rather than speech.
See infra note 169.
84
Consideration of whether artistic or design choices are sufficient to qualify as expression is rooted in
copyright law in which the question is whether the “author’s” work is sufficiently original in order to receive
copyright protection as a writing. See generally Feist Pubs. Inc., Rural Telephone Serv. Co., 499 U.S. 340
(1991) (considering whether a telephone directory is entitled to copyright protection). While copyright
issues may certainly involve freedom of expression, they are not necessarily one and the same. See Eldred
v. Ashcroft, 537 U.S. 187 (2003) (concluding that a twenty-year extension of copyright protection did not
violate the First Amendment); Harper & Row, Pub’l, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)
(concluding a magazine’s freedom of speech was not violated when copyright law prohibited it from
publishing excerpts from a manuscript without the authorization of the author). See generally Raymond
Shih Ray Ku, The First Amendment Implications of Copyright’s Double Standard, 17 V
A. SPORTS & ENT. L.
43 CARDOZO L. REV. ___ 13
proverbial widget would be speech as long as its manufacturer claims to have imbued the widget
with their creative choices and persona.
85
Elon Musk might very well claim that Tesla automobiles
embody his expression. Moreover, what message does the cake embody? While the cake conveys
information that stimulates our senses, hopefully signaling to the brain that it is divine and
instilling the diner with a sense of satisfaction and bliss, is that the kind of sensory stimulation and
input contemplated by the First Amendment? While these questions may sound esoteric, similar
questions remain unanswered when considering when the regulation of video games and the virtual
worlds and realities designed by programmers and generated by microprocessors violate the
freedom of speech of developer and user.
86
Sorrell v IMS Health, Inc. illustrates another aspect of the expressive conduct problem: how does
First Amendment apply to conduct that may, but does not necessarily, contribute to the creation of
speech? Specifically, how should courts review regulations that restrict the transfer of information
and data? In Sorrell, a majority of the justices concluded that a statute regulating the sale of
medical prescription records violated the First Amendment.
87
Vermont regulated the collection
and dissemination of prescription information including information that would identify the
prescriber. The statute required the consent of the prescriber before prescription information
identifying the prescriber could be sold or used for marketing purposes.
88
This restriction was
intended to protect the privacy of doctors, prevent drug companies from interfering with medical
decisions, and to control prescription costs, and according to Vermont, the regulation of conduct
unrelated to the suppression of expression.
89
According to Justice Kennedy, the First Amendment
J. 163 (2018); Derek Bambauer, Copyright = Speech, 65 EMORY L. J. 199 (2015); C. Edwin Baker, First
Amendment Limits on Copyright, 55 V
AND. L. REV. 891 (2002); Rebecca Tushnet, Copyright as a Model for
Free Speech Law, 42 B.C. L. REV. 1 (2000). Likewise, the relationship between art and the First
Amendment has yet to be fully recognized. See Sheldon H. Nahmod, Artistic Expression and Aesthetic
Theory: The Beautiful, the Sublime and the First Amendment, 1987 W
IS. L. REV. 221 (1987) (arguing that
Art should be considered subject to its own First Amendment analysis); Marci A. Hamilton, Art Speech, 49
V
AND. L REV. 73 (1996) (same); Edward J. Eberle, Art as Speech, 11 U. PENN. J. OF LAW & SOCIAL CHANGE
1 (2007-2008) (arguing that Art should be considered as a unique form of speech) (same).
85
Justice Thomas’ analysis tracks his opinion in Star Athletic, LLC v. Varsity Brands, Inc., 580 U.S. ___,
137 S. Ct. 1002 (2016) in which he concluded that cheerleader uniforms were not excluded from copyright
protection even if uniforms are considered useful articles which are statutorily excluded from copyright
protection. Under the “useful articles doctrine,” the widget would not receive copyright protection unless
the artistic features can be identified separately from the utilitarian. See Robert C. Denicola, Imagining
Things: Copyright for Useful Articles After Star Athletica v. Varsity Brands, 79 U. P
ITT. L. REV. 635 (2018).
Moreover, whether an individual’s creation should be considered their property is not the same as whether
it conveys a message attributable to them.
86
See Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011) (discussing and debating the
expressive elements of video games and when freedom of expression may be implicated). See also, Mark
A. Lemley, Eugene Volokh, Law, Virtual Reality, and Augmented Reality, 166 U. P
A. L. REV. 1051 (2017-
2018) (considering free speech claims for virtual and augmented reality); Raymond Shih Ray Ku, Free
Speech & Net Neutrality: A Response to Justice Kavanaugh, 80 U. P
ITT. L. REV. 855 (2018-2019)
(considering the free speech claims of Internet service providers).
87
Sorrell, 564 U.S. at 557.
88
Id. at 558-559.
89
Id. at 560-561, 572-573
Free Speech &
Abortion 14
applied because the sale of this information was only prohibited based “in large part on the content
of the purchaser’s speech”
90
and by singling out the use of prescriber information only for
marketing to prescribers.
91
Likewise, because pharmaceutical manufacturers were the primary
users of this information for marketing, and their practice was the focus of the legislation, the court
concluded that it disfavored “specific speakers.”
92
As such, Justice Kennedy argued that the law
defied the application of intermediate scrutiny to cases involving the regulation of conduct because
it had the effect of restricting speech based upon the identity of the speaker and the content and
viewpoint they wished to express.
93
Laws that regulate speech based upon content let alone
viewpoint are presumptively unconstitutional.
Furthermore, Justice Kennedy concluded that, in addition to the restrictions placed upon the
companies intending to use the information for marketing, the statute restricted the expression of
those wishing to sell that information as well. According to the majority, information is speech,
and because the information possessed by pharmacies and insurance companies was “subjected to
‘restraints on the way in which the information might be used’ or disseminated”
94
it violated their
speech interests as well. In so doing, the Court rejected Vermont’s argument that the law regulated
conduct and not speech. According to Kennedy, information cannot be considered “a mere
‘commodity’ with no greater entitlement to First Amendment protection than ‘beef jerky.’”
95
As
a general proposition, gathering and publishing information is protected by the First Amendment.
96
And, according to Kennedy:
Facts, after all, are the beginning point for much of the speech that is most essential to advance human
knowledge and to conduct human affairs. There is thus a strong argument that prescriber identifying
information is speech for First Amendment purposes.
97
90
Id. at 564.
91
Id.
92
Sorrell, 564 U.S. at 564-565.
93
Id. at 565-566.
94
Id. at 568.
95
Id. at 570.
96
For example, the First Amendment recognizes the freedom of news organizations to both gather and
publish facts, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (attending criminal
trials); New York Times v. United States, 403 U.S. 713 (1971) (publishing the Pentagon Papers), but even
that freedom is not absolute. See Cohen v. Cowels Media Co., 501 U.S. 663, 669-70 (1991) (concluding
that First Amendment did not bar a promissory estoppel claim for disclosing the identity of a source). For
example, Barry McDonald has argued that the First Amendment should only apply to certain recognized
activities, see Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards a
Realistic Right to Gather Information in the Information Age, 65 O
HIO ST. L.J. 249, 250 (2004). But see
Baghwat, supra note 48 at 1053 (arguing that the freedom to gather news should apply more generally).
97
Sorrell, 564 U.S. at 570.
43 CARDOZO L. REV. ___ 15
In other words, because information is often used for expression, a fortiori, information is speech.
And, the law restricted speech even though prescriber information was not gathered for
publication, or, in fact, published.
Dissenting for himself and Justices Ginsburg and Kagan, Justice Breyer argued that the majority
failed to distinguish between efforts to regulate the marketplace of ideas versus those that regulate
the marketplace for goods and services.
98
According to Breyer, this distinction is crucial:
Because many, perhaps most, activities of human beings living together in communities take place through
speech, and because speech-related risks and offsetting justifications differ upon context…., the First
Amendment imposes tight restraints upon government efforts to restrict, e.g., “core” political speech, while
imposing looser constraints when the government seeks to restrict, e.g., commercial speech….
99
Because of the ubiquity of speech, strict scrutiny should only apply when a law directly burdens
speech whereas a “more lenient approach” applies when laws affect speech indirectly.
100
With
respect to the Vermont law, Justice Breyer emphasized that it did not impose any burden based
upon speech itself. No one was forbidden or compelled to say anything expressly or symbolically
nor required to endorse any particular view.
101
And, prior to Sorrell, the Court had never
concluded that the First Amendment prohibited or required heightened scrutiny when a
government restricts the “use of information gathered pursuant to a regulatory mandate,” as was
the case in Sorrell.
102
To the extent that the Vermont law applied only to certain content and to certain parties, Justice
Breyer argued that those distinctions are inherent in any system of regulation.
103
For example,
the Federal Drug Administration regulates “the form and content of labeling, advertising, and sales
proposals of drugs, but not furniture,”
104
and, “might control in detail just what a pharmaceutical
firm can, and cannot, tell potential purchasers about its product.”
105
Such regulations are content-
based because of the practice or industry being regulated, and they are “speaker-based” because
only certain firms participate in that practice or industry. As such, the distinctions can and were
made based upon the nature of the regulated activity rather than a regulation of speech. Under
98
Id. at 583 (Breyer, J. diss.).
99
Id. at 582.
100
Id. at 584.
101
Id. at 585-586.
102
Id. at 588. Some opinions suggest that the Constitution does not guarantee the most effective means
to subsequently engage in speech. See Universal City Studios, Inc. v. Corley, 273 F.3d 429, 459 (2d Cir.
2001) (“We know of no authority for the proposition that fair use, as protected by the Copyright Act, much
less the Constitution, guarantees copying by the optimum method...”); San Antonio Ind. School Dist. v.
Rodriguez, 411 U.S. 1, 36 (1973) (“Yet we have never presumed to possess either the ability or the authority
to guarantee to the citizenry the most effective speech...”).
103
Sorrell, 564 U.S. at 589 (“Regulatory programs necessarily draw distinctions on the basis of content.”).
104
Id.
105
Id. at 590.
Free Speech &
Abortion 16
those circumstances, the First Amendment imposes no additional limits upon the government’s
power to regulate the market and those participating in it.
106
B. Two Truths and a Lie
Masterpiece Cakeshop and Sorrell illustrate the legal implications of acknowledging that
sometimes a cake is more than just dessert or that information is not the same as beef jerky. The
claim that a law regulating conduct impermissibly interferes with expression associated with that
conduct requires courts to consider the expressive nature of conduct and how regulation of such
fits within the freedom of speech guaranteed by the First Amendment. When parties invoke
expression, courts engage in a more careful (and perhaps thoughtful) analysis of the purpose of the
law and the extent to which the chosen means respond to the problem and the extent to which those
means interfere with liberty. This is true even when the claimed relationship to speech is
exceedingly thin.
107
What Frederick Schauer described as “First Amendment opportunism,”
108
serves three purposes, only two of which are legitimate.
In the first category of cases, judicial review is justified because activities may be analogous to
previously protected speech. Under these circumstances, courts must determine whether
regulation of that activity is covered by the First Amendment.
109
For example, does the activity
convey a particularized message, and in light of the surrounding circumstances, a great likelihood
that the message would be understood by as such.
110
Examples of these cases include First
Amendment consideration of whether websites,
111
Facebook posts,
112
or posts to the President’s
Twitter account,
113
are examples of speech protected by the First Amendment. While category
one cases present novel questions, judges are only required to perform their traditional function of
interpretation.
106
If the First Amendment is, in fact, violated when restrictions are imposed based upon the content of the
information, the circumstances in which that information may be used, and, as such, who may use that
information, then an argument can be made that all data privacy laws are unconstitutional after Sorrell.
107
Coverage, supra note 32 at 1616:
What is most interesting about these various claims and arguments is not merely that some of them
have been taken seriously.'" Rather, it is that they have been advanced at all, in contrast to what
would have been expected a generation ago, when the suggestion that the First Amendment was
even applicable to some of these activities would far more likely have produced judicial laughter or
incredulity, if not Rule 11 sanctions.
108
Schauer, Opportunism, supra note 27 at 176. See also Kendrick, supra note 28 at 1206-1209.
109
Coverage, supra note 32 at 1617-1621.
110
Spence v. Washington, 418 U.S. 405, 411 (1974) (“An intent to convey a particularized message was
present, and in the surrounding circumstances the likelihood was great that the message would be
understood by those who viewed it.”).
111
Reno v. A.C.L.U., 521 U.S. 844 (1997).
112
Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015).
113
Knight First Amendment Institute v. Trump, 928 F.3d 226 (2d Cir. 2019) rehearing en banc denied, 953
F.3d 216 (2d Cir. 2020).
43 CARDOZO L. REV. ___ 17
Weddings cakes fall into this category, when courts must determine whether a cake is the speech
of its baker, must it be customized, or include the baker’s signature or signature style? For
example, Eugene Volokh argues that Masterpiece Cakeshop raises the question of whether
individuals can be compelled to create speech.
114
He argues that even if there is no endorsement,
compelled creation and dissemination still “involve people being required to ‘foster …. concepts’
with which they disagree and ‘to be an instrument for fostering public adherence’ to a view the
disapprove of…”
115
Likewise, the regulation of information gathering and dissemination raise
important coverage and protection questions. Is data gathering equivalent to newsgathering? Is
the transfer of information equivalent to publishing? As Ashtosh Bhagwat argues relying upon
the traditional content versus content-neutral distinctions as Justice Kennedy does in Sorrell is an
imperfect analogy when it comes to laws regulating speech producing conduct because it does not
adequately consider whether the harm being combatted is “related to the message or
communicative impact,”
116
or distinguish between instances in which the conduct leads to the
production of speech of public versus private concern.
117
In category two cases, judicial review is justified because First Amendment coverage is plausible
if doubtful. Unless courts dismiss the claim out of hand, they must determine whether the activity
is both covered and protected.
118
In cases like Masterpiece Cakeshop, even if the First Amendment
coverage is doubtful judges may nonetheless consider whether the activity is protected even if only
to refute such claims.
119
Under these circumstances, the First Amendment is applied “just in case”
the initial coverage decision may be wrong or more complicated than it may appear. Even if the
court is confident that the activity is not covered, they consider whether the regulation is
nonetheless consistent with the corresponding degree of protection “even if” the conduct is
covered. Even though freedom of speech is not clearly implicated, parties benefit from the more
careful consideration of legislative purpose and the fit between ends and means required by the
First Amendment which would otherwise be unavailable. As such, “the First Amendment offers
strong protection at a seemingly low price of admission.”
120
As discussed below, invoking
114
Volokh, Compelled Speech, supra note 48 at 382-384.
115
Id.
116
Bhagwat, supra note 48 at 1063.
117
Id a 1065.
118
Kendrick, supra note 28 at 1200 (“These claims are examples of what has been called First Amendment
opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types
of legal arguments.”).
119
See David McGowan, Approximately Speech, 89 MINN. L. REV. 1416, 1418 (2005) (“Once in a while, a
party will assert a free speech claim in a factual context judges recognize as involving expression but not
free speech. To refute such claims, judges must make implicit free speech analysis explicit.”).
120
Kendrick, supra note 28 at 1209. Eugene Volokh argues, in my opinion persuasively, that instead of
relying upon the speech/conduct distinction, First Amendment law would be better served by acknowledging
that speech is implicated; that “[t]here are exceptions to the First Amendment’s protection, and the courts
ought to identify the boundaries of those exceptions.” See Volokh, Compelled Speech, supra note 48 at
Free Speech &
Abortion 18
freedom of expression under these circumstances is a logical response to the arguable lack of
protection provided under the rational basis test of the Fourteenth Amendment.
In the final category of cases, the conduct is unrelated to the marketplace of ideas or deliberative
democracy, but instead, is used to categorically insulate other interests from regulation. In other
words, the First Amendment is not invoked because the conduct should or may be expressive, or
to justify a more thoughtful judicial review, but because it can be used to presumptively deny
government the power to regulate the conduct.
121
Expression is not a value, but rather a tool, the
chisel to make a square peg fit into a round hole allowing both parties and judges to use the First
Amendment to presumptively declare laws unconstitutional based upon the judge’s personal
beliefs and worldview.
122
Given the conclusory nature of some of the opinions in Masterpiece
Cakeshop and Sorrell, both may also fall into this category.
Like the grifter in The Music Man who manages to convince the public that the local pool hall was
trouble because “trouble begins with T which rhymes with P which stands for pool,” a talented
lawyer and a receptive judge can exploit the broad outlines of expression to reach their preferred
results. In general selling cakes or information is not considered speech as that word is commonly
used or reasonably understood. These acts, however, can be connected to speech. Consider the
syllogisms that arise from Masterpiece Cakeshop and Sorrell. In the former, the First Amendment
protects speech; speech is a form of expression; expression is, therefore speech. Conduct that is
not speech nevertheless may be understood as expressing some idea or opinion, even indirectly;
therefore, the conduct is protected speech. The latter employs a different syllogism. In Sorrell,
speech conveys information; information is, therefore, an essential element of speech; transfer and
access to information is, therefore, protected speech. This simplistic and reductionist interpretation
of the First Amendment ignores the reality that the Amendment does not protect all speech or
apply simply because an activity may be labeled speech.
123
Even if one overlooks the logic, category three cases are especially troublesome because the First
Amendment analysis employed is inherently conclusory. By classifying conduct as speech,
1337. Ultimately, I agree with Ashtosh Bhagwat conclusion that courts should not adopt a deferential
standard of review but engage in searching judicial scrutiny. See Bhagwat, supra note 48 at 1058-1066.
121
See, e.g., McGowan, supra note 117 at 1417 (“A case is a free speech case when a judge says it is a
free speech case … Because expression is present in every case, judges may engage in free speech
analysis whenever they feel like it.”); Steven J. Heyman, The Conservative-Libertarian Turn in First
Amendment Jurisprudence, 117 W. V
A. L. REV. 231, 233 (2014) ("In several leading cases, conservative
judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal
or progressive values."); Frederick Schauer, The Boundaries of the First Amendment. A Preliminary
Exploration of Constitutional Salience, 117 H
ARV. L. REV. 1765, 1794 (2004) ("Similarly, objections to
government regulation of business that were originally based on concern for economic liberty have become
objections to the regulation of commercial advertising.. . .").
122
Kendrick, supra note 28 at 1210 (“Some would say that this is a more specifically political phenomenon:
that what matters is who is making the First Amendment claim, or which judges are hearing it.”).
123
See Coverage, supra note 29 at 1619-1621; Kendrick, supra note 28 at 1212-1216.
43 CARDOZO L. REV. ___ 19
regulations of conduct not only restrict speech, they will do so selectively based upon the content
and viewpoint expressed, and as such are presumptively invalid.
124
A law requiring people to wear
masks during a pandemic punishes only those individuals that refuse to obey the law. For those
that would prefer not to wear a mask, complying with the mandate is an endorsement of their
efficacy and/or that the mandate is a legitimate exercise of government authority.
Correspondingly, by refusing to wear a mask they are being punished by the government by being
subject to civil or criminal sanctions and/or public scorn and criticism. Prior to Masterpiece
Cakeshop and Sorrell, courts would have acknowledged that such a law would limit the freedom
of dissenters to express their dissent by violating the law. However, so long as the purpose of such
a mandate is to prevent the spread of a virus, the law would be upheld because the government
could reasonably conclude that exceptions would in fact undermine the very purpose of the law,
and that reasonable alternatives exist for dissenters to express their disagreement. In this example,
the only method of expression denied to dissenters is refusing to wear a mask free from legal and
social consequences.
In contrast, when courts consider speech the object of regulation, prohibiting the act will almost
certainly be considered unconstitutional. When the refusal to wear a mask is itself speech and
considered the object of the regulation, dissenters may easily characterize the law as based upon
the content of their expression, the efficacy of wearing masks and/or the authority of the
government to mandate that individuals wear masks. Because they disagree with the mandate,
they are being punished based upon their viewpoint. And, because the law primarily, if not
exclusively applies to them, it singles out a specific group of speakers. Under traditional speech
analysis, laws restricting speech under these circumstances are rarely if ever considered
constitutional.
125
Even assuming that legitimate interests exist for wearing masks to prevent the
spread of the deadly virus, the government would be denied the authority to prohibit the conduct.
And, instead, it would either be required to recognize exceptions or limited to providing incentives
to encourage people to wear masks or engage in speech of its own to inform the public of the
importance of wearing masks. Once it is determined that a law is the regulation of expression, the
constitutional path and destination are essentially predetermined. As Justice Kennedy noted in
Sorrell, “In the ordinary case, it is all but dispositive to conclude that a law is content-based and,
in practice, viewpoint discriminatory.”
126
C. Judicial Review Not Abdication
124
Sorrell, 564 U.S. at 2667 (“In the ordinary case it is all but dispositive to conclude that a law is content
based and, in practice, viewpoint based.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-
based regulations are presumptively invalid.”).
125
In the modern era, the Supreme Court has only upheld one law based under strict scrutiny and did so
because of national security concerns. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
126
Sorrell, 564 U.S. at 571.
Free Speech &
Abortion 20
There is a genuine jurisprudential reason to consider what otherwise could be rejected as legal
sophistry in the second category of cases. A fundamental axiom of judicial review is that judges
do not evaluate the wisdom of laws. Instead, they are supposed to limit their consideration to
whether the challenged law is within the scope of the government’s powers and whether the means
chosen are reasonably adapted to those ends. Put differently, under the U.S. Constitution, judges
guard against the exercise of arbitrary and invidious power, not wrongheaded or, even, erroneous
policies. The difference between declaring a law unconstitutional because it is arbitrary versus
wrong is what separates judicial review from judicial activism. The Supreme Court’s adoption of
principles of laissez faire economics and deregulation as exemplified in Lochner v New York, is
one of the few, if not only, instances in which the Justices have been universally condemned for
engaging in such activism.
127
Much has been written about Lochner and how cases like
Masterpiece Cakeshop and Sorrell may represent a new effort to enforce principles of
deregulation.
128
This essay does not engage in that debate, but rather explains that in response to
Lochner, judicial review of claims arising under the Fourteenth Amendment may be laughable and
conclusory in its own right.
129
This is currently true for laws regulating business and commercial
interests, and, if anti-abortion advocates are successful, will be true for a woman’s freedom to
terminate her pregnancy.
130
Under these circumstances, reliance upon a fundamental
constitutional interest like those protected by the First Amendment, is one of the few means of
avoiding a constitutional dead end.
Today, the principle that states may exercise their police power to regulate the terms and conditions
of contracts, employment, and commerce in general is firmly established. As the Supreme Court
noted:
127
See, e.g., Ferguson v Skrupa, 372 U.S. 726, 730 (1963) (“The doctrine that ... due process authorizes
courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later
explained, “has long since been discarded. We have returned to the original constitutional proposition that
courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are
elected to pass laws.”); Griswold v. Conn., 381 U.S. 479, 482 (1965) (Overtones of some arguments
suggest that Lochner v. New York … should be our guide. But we decline that invitation…. We do not sit
as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems,
business affairs, or social conditions.``); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 669 (1966)
("We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment
'does not enact Mr. Herbert Spencer's Social Statics."') (quoting Lochner v. New York, 198 U.S. 45, 75
(1905) (Holmes, J., dissenting)). See also David E. Bernstein, Lochner’s Legacy’s Legacy, 82 T
EX. L. REV.
1, 2 (2003) (“The ghost of Lochner v. New York haunts American constitutional law. Almost one hundred
years after the Supreme Court decided the case, Lochner and its progeny remain the touchstone of judicial
error. Avoiding Lochner's mistake is the "central obsession" of modern constitutional law.”) (footnotes
omitted); B
RUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 269 (1998) ("[M]odern judges are more
disturbed by the charge of Lochnering than the charge of ignoring the intentions of the Federalists and
Republicans who wrote the formal text.").
128
See supra note 21.
129
See, e.g., Clark Neily, No Such Thing: Litigating under the Rational Basis Test, 1 N.Y.U. J.L. & LIBERTY
898 (2005) (describing the rational basis test as “insane” and “dishonest”);
130
See infra Part III.C.
43 CARDOZO L. REV. ___ 21
Under our form of government, the use of property and the making of contracts are normally matters of
private, and not of public, concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute, for government cannot exist if the citizen may at
will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm.
Equally fundamental with the private right is that of the public to regulate it in the common interest.
131
In short, “The Constitution does not guarantee the unrestricted privilege to engage in a business or
to conduct it as one pleases.”
132
As Justice Thurgood Marshall noted, “The structure of economic
and commercial life is a matter of political compromise, not constitutional principles….”
133
However, simply because the states have the power to regulate business, does not mean that laws
regulating business are necessarily constitutional. Instead, Due Process requires that “the law shall
not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and
substantial relation to the object sought to be attained.”
134
Under what is now referred to as the
rational basis test, a law is constitutional as long as it is rationally related to a legitimate
government interest. Laws regulating the hours bakers may work or whether they must bake
wedding cakes for same-sex marriages are considered consistent with the Fourteenth Amendment
and its guarantee of due process of law because they are rationally related to the power of states,
in Justice Marshall’s words, to structure economic and commercial life.
Having concluded that the power to regulate economic and commercial conduct falls within the
police power, unless another interest, like freedom of speech, is at stake, the remaining question is
whether the law passes rational basis review. Unfortunately, rational basis review has meant very
different things to different people, and at different times.
135
The Supreme Court’s decision in
131
Nebbia v. New York, 291 U.S. 502, 523 (1934) (citations omitted).
132
Id. at 527-528.
133
Cleburne v. Cleburne Living Center, 472 U.S. 432, 472 (1985) (Marshall, J., conc. in part). See also
Nebbia, 291 U.S. at 524-525:
These correlative rights, that of the citizen to exercise exclusive dominion over property and freely
to contract about his affairs, and that of the state to regulate the use of property and the conduct of
business, are always in collision. No exercise of the private right can be imagined which will not in
some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate
the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But
subject only to constitutional restraint the private right must yield to the public need.
134
Id. at 511.
135
See, e.g., James M. McGoldrick Jr., The Rational Basis Test and Why It Is So irrational: An Eighty-Year
Retrospective, 55 S
AN DIEGO L. REV. 751 (2018) (discussing the history of the rational basis test under Due
Process and Equal Protection cases); Jeffrey D. Jackson, Classical Rational Basis and the Right to Be Free
of Arbitrary Legislation, 14 G
EO. J.L. & PUB. POL'Y 493 (2016) (discussing the evolution of the rational basis
test for due process). See also, Aaron Belzer, Putting the “Review” Back in Rational Basis Review, 41 W.
S
T. U.L. REV. 239 (2014) (discussing the evolution of the rational basis test under equal protection). But
see Katie R. Eyer, The Canon of Rational Basis Review, 93 N
OTRE DAME L. REV. 1317 (2018) (arguing that
the teaching of rational basis review is both incomplete and misleading); Thomas B. Nachbar, The
Rationality of Rational Basis Review, 102 V
A. L. REV. 1627 (2016) (arguing for the importance of considering
non-instrumental ends); Jane R. Bambauer & Toni M. Massaro, Outrageous and Irrational, 100 M
INN. L.
REV. 281 (2015) (arguing for the importance of rational basis review for establishing a floor).
Free Speech &
Abortion 22
U.S. Railroad Retirement Bd. v. Fritz
136
illustrates the range of what rational basis review entails
and its consequences in a single decision. Congress restructured the benefits offered to railroad
employees in the 1974 Railroad Retirement Act, and denied benefits to a group of workers that
would otherwise have qualified under the prior Act.
137
Congress, however, provided those benefits
to a similar group of workers if they had a “current connection” with the railroad industry as of the
cutoff date.
138
The District Court concluded that the “current connection” distinction was not
rationally related to the purpose of the Act, and, therefore the exclusion of the plaintiffs was
unconstitutional.
139
The Supreme Court disagreed with a majority of the Justices concluding that
the Act satisfied the rational basis test.
Justice Rehnquist’s majority opinion employs the most deferential approach. According to
Rehnquist, “the plain language of [the provision in question] makes the beginning and end of our
inquiry.”
140
As such, the purpose of the statute was to divide railroad retirees into two separate
classes only one of which would receive benefits under the prior Act.
141
Having concluded that
the purpose was legitimate, the Court moved on to whether the purpose was achieved in “a patently
arbitrary or irrational way.”
142
According to Rehnquist, this portion of the test was easily satisfied
because when “there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of
course, ‘constitutionally irrelevant whether [the reasoning articulated by the Court] in fact underlay
the legislative decision’....”
143
Concurring in the judgment, Justice Stevens argued that “the Constitution requires something more
than merely a “conceivable” or “plausible” explanation for the unequal treatment.”
144
Instead,
Stevens proposed what might be considered an objective test in which the Court, “must discover
a correlation between the classification and either the actual purpose of the statute or a legitimate
purpose that we may reasonably presume to have motivated an impartial legislature.”
145
The
Retirement Act satisfied this test because to protect the solvency of the retirement program it was
reasonable to preserve some benefits while ending others, and differentiating beneficiaries based
upon the timing of their service was reasonable.
146
136
449 U.S. 166 (1980).
137
Id. at 168-173.
138
Id. at 171-172.
139
Id. at 174.
140
Fritz, 449 U.S. at 176.
141
Id. at 177.
142
Id.
143
Id. at 179.
144
Fritz, 449 U.S. at 180 (Stevens, J. conc.).
145
Id. 180-181.
146
Id. 182.
43 CARDOZO L. REV. ___ 23
In contrast, writing for himself and Justice Marshall in dissent, Justice Brennan criticized the
majority for adopting a “mode of analysis employed by the Court in this case virtually immunizes
social and economic legislative classifications from judicial review.”
147
According to Brennan,
one of the purposes of the Act was to preserve the vested benefits of workers who had earned them
under the original Act. As such, denying those benefits to workers without a current connection
was not only arbitrary and irrational, but “inimical” to its purpose.
148
In reaching this conclusion,
Justice Brennan relied upon the House and Senate Reports which characterized the preservation
of vested rights for individuals such as the plaintiffs as a “Principal Purpose of the Bill.”
149
Without going into further detail, his opinion criticizes the majority’s “plain” language analysis as
tautological, that rational basis requires consideration of the actual purpose rather than post-hoc
justifications offered by Government attorneys, and even accepting such arguments must still
consider whether they “genuinely support such judgment.”
150
With regard to the final point, even
if the Court were to accept the argument that the decision was based upon “equitable”
considerations, the Court must still evaluate “what principles of equity or fairness might genuinely
support such a judgment.”
151
Unfortunately, while there have been some glimpses of Justice
Brennan’s approach in more recent Supreme Court decisions, Justice Rehnquist’s “plausible” test
remains the standard.
152
When the standard of review requires only that the law serve some hypothetically legitimate
purpose, legal fiction replaces what might be an otherwise inconvenient truth. While line drawing
may be inevitable, in may nonetheless be arbitrary.
153
In its most deferential form, the promise of
rational basis review is an empty promise. In many respects, this is the polar opposite of Lochner.
Instead of relying upon their own preferences to evaluate the law, judges are mandated to use their
creativity to defend the law. If judges are not only free to rationalize and justify a law post hoc
but required to do so, the constitutionality of the law does not turn on the law’s legitimacy, but
upon the considerable creativity of lawyers and the subjective limits of a judge’s willingness to
147
Fritz, 449 U.S. at 183 (Brennan, J. diss.).
148
Id. at 185-186.
149
Id. at 185.
150
Id. at 194.
151
Id. at 194.
152
See Romer v. Evans, 517 U.S. 620, ___ (1996) (“even in the ordinary equal protection case calling for
the most deferential of standards, we insist on knowing the relation between the classification adopted and
the object to be attained.”) (concluding that a State constitutional amendment denying protected status
persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships”
fails, indeed defies, even this constitutional inquiry”); Lawrence v Texas, 539 U.S. 588, ___ (2003)
(concluding that state may only regulate the conduct of individuals to “prevent injury to a person or abuse
of an institution the law protects”).
153
See, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976) (distinguishing between
established pushcart vendors over newer
ones); Ferguson v. Skrupa, 372 U.S. 726, 731 (1963) (concluding
that it was no irrational permit only lawyers to engage in the business of debt adjusting); Williamson v. Lee
Optical of Okla., 348 U.S. 483,
491 (1955) (holding that optometrists or ophthalmologists may independently
fit glasses, but opticians may only do so with a prescription from an optometrists or ophthalmologists).
Free Speech &
Abortion 24
suspend disbelief. As such, because contracts are of genuine public concern, any law regulating
contracts will be upheld even if the law does not advance the concern or does so arbitrarily. Given
what Justice Brennan decried as a “toothless”
154
standard of review, the only way for a baker to
get their objection taken seriously is to test the boundaries of expression.
155
III. The First Amendment & Reproductive Freedom
If there are legitimate reasons to reconsider the expressive interests at stake when commercial
conduct is regulated, those reasons apply with equal if not greater force when personal conduct is
targeted. This section considers how this approach might with regard to one of the most
contentions questions of individual autonomy: control over pregnancy.
156
What if any expressive
interests are at stake when states seek to restrict or ban abortion? This part begins by identifying
the expression associated with pregnancy, childbirth, and motherhood, and explains how
compelling a woman to carry a pregnancy to term is covered by the First Amendment. Part III.B.
discusses when the government’s purpose is to protect prenatal life.
A. Of Pregnancy, Birth, and Motherhood
What does it say when a woman gives birth to a child? What messages are compelled if she is
forced to carry a pregnancy to term? Remember: according to Justice Kennedy’s majority opinion
in Sorrell, the expressive act was the transfer of personal identifying prescriber information. In
Masterpiece Cake, Justices Thomas and Gorsuch concluded that the wedding cake represented the
endorsement of the legality of sex-marriage, that such unions were consistent with the baker’s
religious beliefs, and events to be celebrated. Because the messages associated with abortion and
having a child are so clear and straightforward, the following is limited to messages that parallel
those identified by the Supreme Court in the cases above.
154
Fritz, 449 U.S. at 184.
155
Of course, except in category three cases, judicial review does not guarantee judicial victory. Even
under First Amendment scrutiny bakers should not be exempt from public accommodations or other anti-
discrimination laws because ending discrimination in places of public accommodation is a compelling
government interest. See Board of Directors of Rotary Intern. v. Rotary Club of Duarte, 481 U.S. 537, 549
(1987) (assuming that public accommodation laws infringe freedom of association, “the infringement is
justified because it serves the State’s compelling interest in eliminating discrimination against women”);
Roberts v. U.S. Jaycees 468 U.S. 609, 624 (1984) (recognizing “eliminating discrimination and assuring its
citizens equal access to publicly available goods and services ... plainly serves compelling state interests
of the highest order.”)
156
For example, as described below, pregnancy and childbirth are more likely than selling wedding cakes
to satisfy the test proposed by Caroline Corbin that “compelled expressive conduct should trigger free
speech scrutiny only when someone is forced by their actions into conveying a viewpoint they disagree
with.” Corbin, supra note 42 at 261.
43 CARDOZO L. REV. ___ 25
“We are cut from the same cloth.” Conception, pregnancy, and birth are many things, but at the
most fundamental and basic level, they are the transfer of information. The primary function of
conception is to pass the combined genetic code of egg and sperm to the next generation.
157
A
woman’s contribution of information represents the blueprint of her physical, cognitive, and
emotional existence. Recent research on intergenerational trauma suggests that a mother’s
experiences are also shared during her pregnancy.
158
The expressive nature of childbirth is so well
ingrained it is the primary metaphor for artistic expression. Artists and inventors often describe
their works in terms of children, and the complicated, personal creative process is often analogized
to giving birth. As such, whether to have a child is, among other things, a decision about whether
to transfer the most fundamental and personal of information, the blue print and instructions, that
make us who we are to the next generation. Likewise, this transfer of information enables a parent
to raise and educate their child passing on their values and beliefs: a freedom long recognized by
Supreme Court.
159
“I’m having a baby.” Pregnancy itself conveys information as well. The physical state of
pregnancy, especially when one “shows,” conveys information to anyone who sees her, family,
friends, and strangers alike, and the pregnant woman may prefer not to share that information or
to control how and when that information is shared. While Justice O’Connor emphasized that
motherhood, “ennobles her in the eyes of others,”
160
Justice Blackmun recognized that, “In other
cases, ... the additional difficulties and continuing stigma of unwed motherhood may be
involved.”
161
The state of being pregnant conveys that she engaged in intercourse, and depending
upon her situation, community, and upbringing, an act that may be considered irresponsible,
immoral, or even criminal. Those informed about the pregnancy may not only use that information
to judge her but may otherwise change their behavior for good or ill. And, per Sorrell, businesses
may use the information to market goods and services to her. With respect to information sharing,
terminating a pregnancy is a decision not to share information regarding one’s physical and
reproductive status with others.
162
157
The fact that this information is not readily visible should not be a bar to First Amendment consideration.
For example, computer code is considered speech subject to First Amendment protection. See Junger v.
Daley, 209 F.3d 481 (6th Cir. 2000); Bernstein v United States, 176 F.3d 1132 (9th Cir. 1999).
158
159
See Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing the freedom of parents to instruct their
children in a foreign language); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (recognizing the freedom
of parents to choose private education rather than public); Wisconsin v Yoder, 406 U.S. 205 (1972)
(recognizing the freedom of parents to determine when to end their children’s public education). While these
decisions were decided under substantive due process, the Justices have recognized their connection to
speech as well. See Employment Div. v. Smith, 494 U.S. 872, 881 (1990). See also Eugene Volokh,
Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. Rev. 631 (2006) (arguing that
communications between parents and their children are protected by the First Amendment).
160
Casey, 505 U.S. at 852.
161
Roe 410 U.S. at 153.
162
Correspondingly, requiring women to carry a pregnancy to term compels her to say “I’m having his baby”
even if that information is not shared with the sperm provider as conception results from the combination
of genetic information.
Free Speech &
Abortion 26
“Good news.” Likewise, pregnancy and a child’s existence convey ideas, beliefs, and opinions the
woman may not share or wish to express. Justice O’Connor’s opinion is replete with references
to the “profound and lasting meaning” associated with the decision to continue or terminate a
pregnancy, and the conflicting views on the subject.
163
For example some people have, “such
reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full
term no matter how difficult it will be to provide for the child and ensure its well-being.”
164
In
contrast, others believe “that the inability to provide for the nurture and care of the infant is a
cruelty to the child and an anguish to the parent.”
165
As a matter of expression, a woman may
object to being seen as endorsing or celebrating one or both beliefs, or any of the “infinite
variations.”
166
Beyond personal circumstances, the woman may likewise object to being
associated with the belief that giving birth is the right or moral message in a world when there are
already children that could use a good home and when population growth contributes to poverty,
overpopulation, and environmental decline.
“Abortion is murder.” Moreover, because opponents of abortion have inextricably linked the act
to questions of morality and good versus evil, pregnancy and childbirth are now viewed in starkly
moral terms as well. Abortion is murder, evil, and inconsistent with the teachings of specific
religions. And, by extension, someone that would choose an abortion is a murderer, evil, and
sinful. It should go without saying that a woman may object to being seen as advocating or
endorsing such messages even if she may personally agree.
“The paramount destiny and mission of women are to fulfill the noble and benign offices of wife
and mother.”
167
Laws prohibiting abortion fundamentally change the meaning of motherhood and
childbirth. If compelled to carry a child to term, conformance may be understood as acceptance
or endorsement of a specific and historically subordinate role in society. This would include the
message that a woman’s role in society is to bear and raise children, and that she bears primary
responsibility. Likewise, she may object to the message that carrying a child to term is more
important than her physical and emotional wellbeing, the nature and quality of her life, or
continuing her education or pursuing a career. Carrying a pregnancy to term may also represent
acceptance or endorsement of systemic gender discrimination because without reproductive
control, women literally have no control over their future, and that lack of control results in lifelong
social and economic disparities. Finally, a woman may not want her pregnancy, giving birth, and
the child to be seen as a celebration or cause for celebration especially in cases of rape and incest,
or a constant reminder that she is “having his baby.”
163
Casey, 505 U.S. at 873.
164
Id. at 853.
165
Id. at 853.
166
Id. at 853.
167
Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J. conc.).
43 CARDOZO L. REV. ___ 27
Correspondingly, denying women the freedom to decide when to bear children alters the message
for those that affirmatively choose to carry the pregnancy to term.
168
For example, women who
choose to become mothers of children with down syndrome or genetic abnormalities often do so
because the decision reflects their beliefs regarding life and motherhood, and allows them to
convey their views and opinions to others.
169
However, when all women are required to carry
pregnancies to term, the law alters the message of those that freely choose to do so. From the
perspective of an outside observer, there is no difference between those that wish to celebrate the
event and welcome the challenges to come, and those who do not.
Unlike Masterpiece Cakeshop and Sorrell, there is one more set of ideas and beliefs that a woman
may not want to express or endorse. The birth of a child automatically assigns the woman the role
of mother, whether she chooses to embrace that role or not, and inescapably creates an expressive
relationship mother and child. A woman who raises a child may believe that she is communicating
to the child that this is the best that she can do as a mother, or that she is either incapable or
unwilling to provide the child with a better upbringing. She may object to the idea that she and
the child can be used to endorse and celebrate the idea that any time is the right time to become a
mother. Correspondingly, compelling women to give birth means that some women will choose
to give the child up for adoption, to place the child in the custody of the state, or worse, abandon
the child to fate. In other words, the woman may choose to deny “the infant a bond of love.”
170
Under these circumstances, at the very least, she may not want to convey the idea that she wanted
to abandon the child, does not love or care about the child’s future. Correspondingly, she may not
want the child to interpret her decision as a message that they are not wanted or unloved, and
specifically, that their own mother neither wanted or loved them.
These are just a few examples of the beliefs and messages conveyed when women are forced to
carry pregnancies to term. Of course, there are many positive messages connected to pregnancy
and giving birth, but the question is not whether some people would voice different opinions; it is
whether the First Amendment protects those that object to conveying or endorsing the
government’s message. Once a child is born, a woman is automatically assigned the role of
mother. Values, identity and responsibilities come with this role, and her actions necessarily
confer information and messages even when she objects to the role or would prefer to remain
silent.
If forced to carry a pregnancy to term, the information that a woman is forced to provide to others,
and the associated messages to which she might object are more clear, profound, and long lasting
than the speech at issue in Sorrell or Masterpiece Cakeshop. The data broker did not play a role
168
I am indebted to B. Jessie Hill for this observation.
169
SEE CHRIS KAPOSY, CHOOSING DOWN SYNDROME: ETHICS AND PRENATAL TESTING TECHNIQUES (2018).
170
Casey, 505 U.S. at 853.
Free Speech &
Abortion 28
in creating the data and has no interest in the content of the information, only its commercial value.
Even then the prescriber information will not necessarily be incorporated into even commercial
speech, but may simply be used to estimate the number of pills to produce for the next quarter.
Likewise, unless the baker chooses to publicize their involvement with the wedding, they are only
required to sell a cake. The baker is not forced to spend time with the couple, attend or participate
in the event, and is certainly not required to offer congratulations to the happy couple. In both
cases, the messages are barely discernible and fleeting at best.
In contrast, the messages conveyed by pregnancy go to the core of human identity, dignity, and
morality. They address the meaning of life, liberty, and the principles of free government. Once
again, as Justice O’Connor described, reproductive freedom concerns “not only the meaning of
procreation but also human responsibility and respect for it.”
171
Moreover, women and the
potential life they carry are inextricably and permanently bound together. During pregnancy, they
are connected in the most intimate of ways, as the fetus is both part of her and inside of her, and
her pregnancy is there for the entire world to see. She cannot hide the fact that she is pregnant or
that her pregnancy has ended without taking extreme measures and even then, will not be able to
hide those facts from everyone. While drug manufacturers might prefer to use prescriber data,
they are still free to obtain that information from the doctors directly and to market and sell their
products without that additional information. And, while the baker may be morally offended by a
client that wants to purchase a cake, that may be their only interaction, and the baker can continue
to sell wedding cakes to heterosexual couples. The messages are based upon commercial
transactions. In contrast, when a woman is forced to carry a pregnancy to term, the messages she
sends are unique to her and to her child, and they will continue for the remainder of their lives.
172
171
Id.
172
Reproductive freedom is not the only liberty guaranteed by the Supreme Court that implicates freedom
of expression as well. The Supreme Court has long recognized the freedom of parents to determine how
to educate their children. See Meyer v. Nebraska, 262 U.S. 390 (1923) (foreign language instruction);
Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private education); Wisconsin v Yoder, 406 U.S. 205
(1972) (ending instruction). Likewise, the Supreme Court has recognized the freedom of individuals to
express love and affection for one another. See Griswold v Connecticut, 381 U.S. 479 (1965) (use of
contraception); Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage); Lawrence v. Texas, 539 U.S.
558 (2003) (same sex sexual activity); Obergefell v. Hodges (same sex marriage). These cases involve
freedom of expression and association as much as they do individual interests in autonomy, privacy,
equality, and religion. For example, Lawrence Tribe has argued:
In the end, what anchors all of these decisions - from Meyer and Pierce to Griswold and Lawrence
- most firmly in the Constitution's explicit text and not solely in the premise of self-rule implicit in the
entire constitutional edifice is probably the First Amendment's ban on government abridgements of
"speech" and "peacabl[e] … assembl[y]," taking those terms in their most capacious sense.
Laurence H. Tribe, Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 117 Harv.
L. Rev. 1893, 1939-1940 (2004). See also Seana Valentine Shiffrin, What Is Really Wrong with Compelled
Association, 99 Nw. U. L. Rev. 839, 841-842 (2005) (arguing that the Supreme Court’s protection of
freedom of association places too much on the messages those associations make to the public rather than
their importance in internal formation of thoughts and ideas) (“Intimate associations, such as the family,
43 CARDOZO L. REV. ___ 29
Lastly, it is impossible for women to disassociate themselves from the messages expressed by
pregnancy and childbirth. In cases in which the individual is not compelled to speak but may be
required to otherwise accommodate expression, the Supreme Court has consistently considered
whether the complainant is capable of communicating that they are neither the source nor endorse
the message to which they object.
173
As discussed above, the connection between mother and
child is lifelong and, even if a mother chooses to withhold her identity from the child, it is
impossible for her to dissociate herself from the myriad messages conveyed by her pregnancy and
subsequent birth.
Once we consider whether pregnancy and childbirth may reasonably be understood as expressing
certain ideas and beliefs, it becomes clear that laws prohibiting abortion interfere with a woman’s
decision to share important personal information and communicate core values and beliefs. In
other words, the First Amendment covers a woman’s decision to carry a pregnancy to term.
B. Freedom of Expression Embraces Reproductive Freedom
The First Amendment covers pregnant women the freedom to obtain safe abortions. By itself, this
is a rather remarkable proposition. Abortion is a medical procedure, and freedom of speech is not
the first freedom or right that comes to mind. Historically, the constitutional question is considered
under the Fourteenth Amendment, and, a woman’s freedom to obtain an abortion is protected by
the Due Process Clause.
174
By preventing a woman from safely ending a pregnancy, abortion
restrictions deny her the freedom to make the most personal decisions about herself and her life
thus deny her the liberty guaranteed by the Due Process Clause.
175
Likewise, efforts to restrict
friendships, and other close personal relationships, are sites for the formation and transfer of culture and
the emotional attachments that are crucial to one's identity.”); B. Jessie Hill, The Deliberative-Privacy
Principle: Abortion, Free Speech, and Religious Freedom, 28 Wm. & Mary Bill Rts. J. 407 (2019) (arguing
that a broader understanding of privacy underlies these issues).
173
See Pruneyard Shopping Center v Robins, 447 U.S. 74 (1980) (concluding that a shopping center
owner’s freedom of speech was not violated when required to accommodate non-shoppers’ freedom of
expression); Turner Broadcasting Sys. Inc. v. FCC, 512 U.S. 622 (1994) (concluding that requiring cable
operators to carry local broadcast stations did not violate the free speech interests of the cable operators);
Capitol Square Review and Adv. Bd. v. Pinette, 515 U.S. 753 (1995) (concluding that the city must permit
the Ku Klux Klan to erect a temporary cross in Capitol Square); Rumsfeld v Forum of Academic &
Institutional Rights, Inc. (FAIR), 547 U.S. 47 (2006) (concluding that a law school’s freedom of expression
was not violated by requiring the school to admit military to campus to recruit with other employers).
174
Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v Casey, 505 U.S. 833 (1992).
175
Roe, 410 U.S. at 153 (“This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court
determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass
a woman's decision whether or not to terminate her pregnancy.”); Casey, 505 U.S. at 851 (“These matters,
involving the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the
Free Speech &
Abortion 30
abortion have been considered violations of the Equal Protection Clause because of the traditional
political and legal subjugation of women,
176
and, as Justice Ginsburg noted, the ability of women
to “realize their full potential … is intimately connected to ‘their ability to control their
reproductive lives.””
177
However, as the preceding demonstrates, compelling women to give birth
to a child interferes with their expression as well. Denying the opportunity to obtain safe abortions
compels women to share and communicate information, endorse ideas and opinions to which they
object or which they would prefer not to discuss, and/or “the right not to be used as a vehicle for
speech.”
178
How would these claims be evaluated under the First Amendment? Even if freedom
of speech is implicated is a state’s interest in the protection of life sufficiently compelling to justify
any restriction upon the woman’s expression?
1. Women are not Symbols
Initially, one could argue that forcing a woman to give birth is presumptively invalid because it
regulates the content of her expression. Under Justice Thomas’ understanding in Masterpiece
Cakeshop, compelled reproduction is compelled speech. The First Amendment denies the
government the authority to force individuals to salute the flag and pledge allegiance,
179
display a
message,
180
or contribute to a cause.
181
As the Justices have noted: “At the heart of the First
Amendment lies the principle that each person should decide for himself or herself the ideas and
beliefs deserving of expression, consideration, and adherence.”
182
It is only logical to recognize
that this principle should apply to compelling a woman to assume the identity and role of mother.
Moreover, the nature of the compelled expression makes this circumstance particularly
concerning. Anti-abortion legislation does not address injuries suffered by the public; supporters
seek to compel others to follow their personal beliefs regarding the sanctity of life. As Justice
Blackmun established in Roe v. Wade, there has never been any religious, scientific, or political
consensus on when a fetus should be considered a person, and the Constitution speaks only in post-
natal terms.
183
This is the fundamental reason for both the holding in Roe and its reaffirmation in
mystery of human life. Beliefs about these matters could not define the attributes of personhood were they
formed under compulsion of the State.”)
176
Gonzales v. Carhart, 550 U.S. 124, 171-172 (2007) (Ginsburg, J. diss.). See also Sylvia A. Law,
Rethinking Sex and the Constitution, 132 U. P
A. L. REV. 955 (1984); Ruth Bader Ginsburg, Some Thoughts
on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Catharine A. MacKinnon,
Reflections on Sex Equality Under Law, 100 Y
ALE L.J. 1281 (1991); Reva Siegel, Reasoning from the Body:
A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 S
TAN. L. REV. 261
(1992).
177
Gonzales, 550 at 171.
178
Tribe, supra note 78 at 647.
179
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)
180
Wooley v Maynard, 430 U.S. 705 (1977)
181
Janus v. American Federation of State, County, and Municipal Employees, 585 U.S. ___, 138 S.Ct.
2448 (2018)
182
Turner Broadcasting Systems, Inc. v. FCC, 512 U. S. 622, 641 (1994).
183
Roe, 410 U.S. at 159-162.
43 CARDOZO L. REV. ___ 31
Planned Parenthood v. Casey that state authority to prohibit abortions begins at viability.
184
Aside
from viability or live birth, any other definition is essentially arbitrary and implicates the freedom
of religion protected by the First Amendment because it compels dissenters to accept, endorse, and
celebrate a particular religious belief. As discussed above, the pregnancy, birth, and the child’s
existence are symbols and testaments to such beliefs.
Relying upon Sorrell, one could argue that the law is unconstitutional because it punishes
expression based upon its content, viewpoint, and identity of the speaker. Restrictions on abortion
are based upon a pregnant woman’s objection to endorsing and celebrating the belief that life
begins at conception, and/or that a fetus is a person. They single out individuals capable of bearing
children and penalize those that, at least for the time being, object to expressing an opinion on the
topic of pregnancy or motherhood. In the words of Justice Kennedy, the law “singles out” a
disfavored viewpoint and targets that restriction only at the group with the most at stake. As the
preceding demonstrates, with respect to a fetus that can only survive in a woman’s uterus, denying
women the freedom to determine whether to give birth compels them to play the role of mother
forcing them to adopt a disputed, often sectarian definition of life, to endorse that definition and
celebrate its message. Again, under these circumstances, anti-abortion laws would be
presumptively unconstitutional.
185
2. “An Abstract Interest in Life”
But isn’t abortion different because abortion end life? Roe itself recognized that States have a
legitimate interest in protecting prenatal life even before viability.
186
As such, the public’s interest
protecting life, specifically the child’s life, should be a sufficiently compelling government interest
capable of outweighing a woman’s expression. Assuming for the purposes of this analysis, that
laws punishing speakers based upon the content of their communication or compelling them to
convey the government’s could still be upheld if they otherwise survive strict scrutiny, which
requires that the law to serve both a compelling government interest AND be the least restrictive
means to achieve that interest,
187
limiting access to abortion is not sufficiently tailored to achieve
the purpose even under the more deferential standard of review establish in the seminal case of
United States v. O’Brien.
188
In that decision, the Supreme Court concluded that “when ‘speech’
and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important
184
Casey, 505 U.S. at 870-871.
185
While there is an outward appeal to the argument that abortions restrictions should be considered
presumptively unconstitutional such a conclusion runs of risk of making this a category 3 argument which I
criticized in Part II.B. The true value for this analysis is its relationship to categories 1 and 2, and the
conclusion that pregnancy falls within the interests of the First Amendment AND that denying access to
abortion interferes with those interests.
186
Roe, 410 U.S. at 162 (recognizing that a state “has still another important and legitimate interest in
protecting the potentiality of human life.”) (emphasis in original).
187
188
391 U.S. 367 (1968).
Free Speech &
Abortion 32
government interest in regulating the non-speech element can justify incidental limitations on First
Amendment freedoms.”
189
Such a law is constitutional if:
[I]t is within the constitutional power of the Government; furthers an important or substantial governmental
interest; if the government interest is unrelated to the suppression of free expression; and if the incidental
restrictions on alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest.
190
In both Masterpiece Cakeshop and Sorrell, the Justices acknowledged that “the First Amendment
does not prevent restrictions directed at commerce or conduct from imposing incidental burdens
on speech. That is why a ban on race-based hiring may require employers to remove ‘White
Applicants Only signs ...”
191
However, they did not consider the O’Brien test arguing that the law
imposed more than an incidental burden on speech. Justice Thomas distinguished O'Brien, arguing
that the test, “does not apply unless the government would have punished the conduct regardless
of the expressive component.”
192
Justice Kennedy likewise rejected this approach because the
privacy law “on its face and in its practical operation … imposes a burden based on the content of
speech and the identity of the speaker.”
193
Supporters of laws restricting abortion will argue that these laws satisfy O’Brien because the
government has the power, if not duty, to protect the health and safety of its citizens. Abortion is
conduct that ends potential life, and denying access to abortion is a legitimate means of protecting
that life. Moreover, even if abortion is banned, individuals remain free to express their opinions
on the subject and to persuade others to adopt their views personally or through the political
process. As discussed below, while protecting prenatal life may be a substantial or even
compelling government interest the purpose of protecting the life of the unborn only satisfies the
189
Id. at 376.
190
Id. at 377.
191
Sorrell, 564 U.S. at 567; Masterpiece Cakeshop, 138 S.Ct. at 1741
192
Masterpiece Cakeshop, 138 S.Ct. at 1746.
193
Sorrell, 564 U.S. at 567. Arguably, the laws in both Masterpiece and Sorrell would have satisfied O’Brien
as regulations directed to commerce and governing the sale of goods.
If states may prohibit a baker from
discrimination based upon protected characteristics and cannot post a sign, “only heterosexual couples
need inquire,” they may prohibit the baker from refusing to bake a cake. Preventing discrimination in the
marketplace is within the power of the government, it represents an important, if not compelling, government
interest unrelated to the suppression of expression, and the restrictions on speech are no greater than is
essential. With regard to the last requirement, the baker is free to express his views on same-sex marriage
except by denying customers equal access to his services. The baker is only subject to this limitation
because he voluntarily opened a business to the public and offered to sell wedding cakes. Likewise, in
Sorrell, the law only prohibits the sale of prescriber data without the consent of the prescriber. Under these
circumstances, privacy laws protect an individual’s freedom to determine when and under what
circumstances third parties may gain access to their activities, and the Supreme Court has traditionally
recognized differing levels of protection when the speech involves matters of public versus private concern.
See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (declining to apply the same
level of First Amendment protection for defamation when the speech did not involve a matter of public
concern).
43 CARDOZO L. REV. ___ 33
first element of O’Brien. States must still demonstrate that compelling women to become mothers
is unrelated to suppressing the woman’s expression and that any “incidental” impact on the
woman’s expression is no greater than necessary to further that interest. Furthermore, when
considering these requirements, judges must conduct an independent evaluation and cannot defer
to any plausible legislative justification and are not free, let alone required, to manufacture one of
their own.
While supporters of anti-abortion measures may sincerely believe that compelling women to
become mothers protects the life of the child, the First Amendment demands more than good
intentions. While anti-abortion laws protect conception, insulating conception regardless of the
pregnant woman’s wishes is not equivalent to protecting the health and safety of the child during
or after pregnancy. As Justice Brennan noted in a different context, “the State has no legitimate
general interest in someone’s life, completely abstracted from the interest of the person living that
life…”
194
An extensive body of literature exists examining the relationship between unwanted
pregnancies and the subsequent effects upon the women and children involved and that literature
will not be repeated here.
195
Instead, this essay summarizes the findings from the TURNAWAY
STUDY, a ten year study of a thousand women seeking abortions who either had the procedure
performed or were forced to carry the pregnancy to term.
196
In light of this research, the criticisms
and the reasons offered by the Supreme Court in both Roe and Casey take on new significance
when considered under the heightened scrutiny required by the First Amendment.
197
The
Constitutional question is not whether laws restricting abortion are effective or wise means of
achieving the states’ “legitimate interests in the health of the woman and in protecting the potential
life within her,”
198
but whether states can demonstrate that laws restricting abortion further that
legitimate purpose, and, therefore, are unrelated to the suppression of expression. If the law
furthers a legitimate purpose unrelated to expression, the state must then demonstrate that any
incidental burden on expression is no more than necessary to achieve that interest. While abortion
restrictions protect conception, there is no factual support for the proposition that they protect the
health and safety of the woman, the fetus she carries, or the child that may be born. Rather, the
evidence strongly supports the opposite conclusion: denying women access to safe abortions
exposes women and children to greater harm.
194
Cruzan v Director, Missouri Dep. of Health, 497 U.S. 261, 313 (1990) (Brennan, J, diss).
195
See Caroline Mala Corbin, Abortion Distortions, 71 WASH. & LEE L. REV. 1175 (2014) (collecting studies);
Jessica D. Gipson, Michael A. Koenig and Michelle J. Hindin, The Effects of Unintended Pregnancy on
Infant, Child, and Parental Health: A Review of the Literature, Studies in Family Planning, Mar., 2008, Vol.
39, No. 1 (Mar., 2008), pp. 18-38. See also Priscilla J. Smith, Responsibility for Life: How Abortion Serves
Women's Interests in Motherhood, 17 J.L. & Pol'y 97, 103-118 (2008) (summarizing medical risks and
health consequences).
196
DIANA GREENE FOSTER, THE TURNAWAY STUDY (Scribner 2020).
197
The same can be said for considering abortion restrictions as sex discrimination under the Equal
Protection Clause. See supra note 173.
198
Casey, 505 U.S. at 871.
Free Speech &
Abortion 34
As the Supreme Court recognized in Roe, forcing a woman to carry a pregnancy to term negatively
impacts her health and well-being and the health and well-being of the child.
199
By its very nature,
pregnancy impacts the physical and emotional wellbeing of a pregnant woman, and carries with it
a small, but very real chance that the pregnancy will result in the mother’s death.
200
According to
the Centers for Disease Control, in the United States approximately 700 women die per year
because of complications related to pregnancy and delivery.
201
In 2017, the US recorded 17.3
deaths for every 100,000 live births.
202
Under no other circumstances does the government require
individuals to risk or sacrifice themselves to save another life.
203
Drafting individuals for military
service is the closest analogy, and the purpose of the draft is to protect the entire public, not to
serve the interest of one potential life.
204
Fortunately, death is a relatively rare outcome, but pregnancy can negatively affect health in other
ways. Some women experience high blood pressure; for others high blood pressure damages
organs including the liver and kidney, and in some cases lead to seizures.
205
For some women
pregnancy results in diabetes which not only has life-long health consequences for them, but
increases the risk of birth defects, stillbirth, and preterm birth.
206
Other women experience
depression, in some cases severe, both during and after the pregnancy.
207
Women are subject to
deep vein thrombosis and pulmonary embolism where blood clots form and break away to block
the lungs.
208
Some women will experience hemorrhaging/serious bleeding that require medical
199
Roe, 410 US. at 153:
Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care.
There is also the distress, for all concerned, associated with the unwanted child, and there is the
problem of bringing a child into a family already unable, psychologically and otherwise, to care for
it.
Accord Thornburgh v American College of Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986)
(concluding that the state “cannot require the mother to bear an increased medical risk in order to save her
viable fetus.”). See also Smith, supra note 192 (summarizing the medical research). See also B. Jessie
Hill, Reproductive Rights as Health Care Rights, 18 C
OLUM. J. GENDER & L. 501 (2009) (arguing that access
to abortion can be seen as a right to protect one’s health free from government interference).
200
See Global, Regional, and National Levels of Maternal Mortality,1990–2015: A Systematic Analysis for
the Global Burden of Disease Study 2015; Lancet 2016; 388: 1775–812.
201
Maternal Mortality, Center for Disease Control and Prevention available at
<https://www.cdc.gov/reproductivehealth/maternal-mortality/index.html>
202
Id.
203
See Donald H. Regan, Rewriting Roe v Wade, 77 MICH. L. REV. 1569 (1979) (evaluating whether a
woman has a duty to protect the fetus as a Good Samaritan).
204
Id. at 1605-1608.
205
See Smith, supra note 192 at _ ; Maternal and Infant Health, Center for Disease Control and Prevention
available at <https://www.cdc.gov/reproductivehealth/maternalinfanthealth/index.html>.
206
Id.
207
Id.
208
Id.
43 CARDOZO L. REV. ___ 35
intervention, in some cases requiring a hysterectomy thus ending her physical ability to have
children in the future.
209
While the preceding risks apply to both wanted and unwanted pregnancies, the Turnaway Study
documents that women forced to carry a pregnancy to term are more likely to experience negative
mental and physical health consequences. With respect to mental health, the Study found that as
a whole, there were no differences between the two groups with respect to long term mental
health
210
and post-traumatic stress.
211
However, women denied an abortion experienced “more
symptoms of anxiety and stress and lower levels of self-esteem and life satisfaction” in the short
term.
212
The study found that the initial response to receiving an abortion was overwhelmingly
relief.
213
The denial of an abortion led predominantly to feelings of sadness and regret.
214
Moreover, the study found that, as a group, women who had an abortion did not develop increasing
feelings of regret in the years that followed, but rather experienced a decline in all emotions with
relief still remaining the most common feeling.
215
With respect to regret, the study found that 95%
of women reported that abortion was the right decision for them, with women who reported high
community stigma associated with abortion to be the most likely to regret the decision.
216
Correspondingly, while the majority of women denied an abortion initially reported their continued
desire for the procedure, feelings of regret declined over time, with women who had less family
support, an easier time making the original decision, or placing the child for adoption being the
most likely to continue to wish that they had the abortion.
217
With respect to physical health, the study found that a woman’s physical health is more likely to
be harmed by carrying a pregnancy to term than having an abortion. In fact, “A woman in the
United States is 14 times more likely to die from carrying a pregnancy to term than from having
an abortion.”
218
Given the impact of pregnancy on a woman’s body, this result should not be
surprising as the report notes a third of all deliveries involve a Caesarean section, and serious
complications are associated with one in four births in general.
219
With respect to the women in
the study, two deaths were reported for women who gave birth while there were no deaths among
the women who obtained an abortion.
220
6.3% of women that carried their pregnancies to term
reported potentially life threatening conditions compared to 1.1% of women whose abortions were
209
Id.
210
TURNAWAY, supra note 193 at 109.
211
Id. at 118-120
212
Id at 108.
213
Id. at 121.
214
Id. at 122.
215
TURNAWAY, supra note 193 at 123.
216
Id. at 125.
217
Id. at 126.
218
Id. at 143.
219
TURNAWAY, supra note 193 at 143.
220
Id. at 149-150.
Free Speech &
Abortion 36
performed just under the gestational limit and .5% of women in the first-trimester.
221
Long term,
women who gave birth were more likely to report poor or fair health and experience high blood
pressure.
222
Both Roe and Casey concluded that states may not limit abortions when the woman’s health and
life is threatened because doing so would violate her substantive rights under the Fourteenth
Amendment. Under the First Amendment, requiring a woman to subject herself to the risks of
pregnancy itself, let alone a failure to recognize exceptions for the health and safety of the woman,
undermines the argument that denying women access to abortions serves the purpose of protecting
her health and safety during pregnancy. The unfortunate reality is that forcing women to carry a
pregnancy to term guarantees that some women will die, the health of other women will be
impaired for life, and still others will lose the ability to become pregnant in the future.
Likewise, restricting abortion does nothing to provide for a healthy pregnancy. Other than forcing
the pregnant woman to remain pregnant, these laws do nothing to ensure a healthy pregnancy or a
healthy birth. Laws restricting or banning abortions are not contingent upon access to healthcare,
treatment for substance dependency, mental health services, nutrition, housing, transportation,
financial assistance, assistance with children for whom she is already responsible, education, or
job training and placement. These services are not only relevant to the health of the woman, but
fundamental to the healthy development of the fetus. Without any guarantee that a pregnant
woman will receive the resources necessary for a healthy pregnancy, laws restricting abortion
guarantee that some pregnancies will result in otherwise avoidable miscarriages, birth defects
including brain damage, learning and developmental disabilities, and other life-threatening
conditions.
223
Once again, under these circumstances, laws prohibiting abortion only protect
conception. While such laws guarantee that pregnancies will continue, they do nothing to ensure
that compelled pregnancies result in live births or healthy children. Without more, prohibiting
abortion only guarantees that some children will be born with lifelong medical and developmental
challenges, and still others will be born only to experience a painful, brutal, and short existence.
224
Lastly, laws restricting abortion do nothing to address the lifelong emotional and economic well-
being of woman or child. Laws prohibiting abortion force women to confront obstacles that they
221
Id. at 146.
222
Id. at 148.
223
See Under-Nutrition Before and During Pregnancy available at <https://healthengine.com.au/info/under-
nutrition-before-and-during-pregnancy>.
224
See Smith, supra note 165 at 117 ("[w]omen repeatedly state that one of the main reasons they choose
to terminate wanted pregnancies is that the information they learn in the second trimester confirms, if the
fetus were to survive, its life would be short and fraught with pain.”) (quoting Brief of IRHA at 11, Gonzales
v. Carhart 127 S. Ct. 1610 (2007) (Nos. 05-1382, 05-380).
43 CARDOZO L. REV. ___ 37
would not have otherwise faced.
225
Overall, the TURNAWAY STUDY found that women denied
abortions were more likely to experience:
[a]n increase in poverty; a decrease in employment that lasts for years; a scaling back of
aspirational plans and years spent trying to raise a child without enough money to pay for
food, housing, and transportation instead of pursuing other life goals.
226
Of the women in the study, sixty-one percent of women denied abortions were living below the
poverty level six months after birth compared to 45% of women who received the abortion.
227
And, over the next four years the women who had given birth were significantly more likely to be
poor,
228
and more likely to be “raising children as single parents with no family support.”
229
This
was not only true for the woman and newborn but for her existing children as well.
230
Existing
children were not only more likely to experience poverty, but also less successful at achieving age
related developmental milestones such as fine motor skill, expressive language, and social-
emotional.
231
With respect to the child born from the unwanted pregnancy, the study found that
the women were more likely to report less emotional attachment with the child including feelings
of being trapped,
232
and while the mother may subsequently develop a closer relationship this
initial bonding phase is associated with the child’s long-term psychology and development
outcomes.
233
Moreover, the study found that women denied abortions were more likely to
experience violence from the father.
234
In part, this can be attributed to the fact that having the
child results in ongoing contact with abusers.
235
Some women will decide not to maintain a relationship with the child following the pregnancy.
Lucky children will be well cared for by relatives or adopted by caring and nurturing families.
Unfortunately, others will be left to the mercy of underfunded and understaffed state or private
institutions. Many of these children will be neglected and abused.
236
Without anyone to support
225
See TURNAWAY, supra note 193 at 163-186 (documenting the profound effect on the lives of women
denied abortions).
226
Id at 165.
227
Id. at 176.
228
Id. at 177.
229
Id. at 185.
230
TURNAWAY, supra note 193 at 202.
231
Id. at 202-204
232
Id. at 206-207.
233
Id. at 208
234
Id. at 232.
235
Id. at 234.
236
See Zdenek Dytrych, Zdenek Matejcek, Vratislav Schuller, Henry P. David and Herbert L. Friedman,
Children Born to Women Denied Abortion, Family Planning Perspectives, Jul. - Aug., 1975, Vol. 7, No. 4
(Jul.-Aug.,1975), pp. 165-171; Henry P. David, Born Unwanted, 35 Years Later: The Prague Study,
Reproductive Health Matters, May, 2006, Vol. 14, No. 27, Human Resources for Sexual and Reproductive
Health Care (May, 2006), pp. 181-190.
Free Speech &
Abortion 38
them, guide them, or be their champion, they will be unable to form healthy relationships and be
incapable of caring for themselves.
237
The failure of anti-abortion laws to address the actual health
and safety concerns of woman and child only reinforces the conclusion that those laws do not
advance a state’s legitimate interest in the health and safety of woman and child, and, therefore,
are unconstitutional. Standing alone, antiabortion laws are not pro-child, pro-woman, or pro-life.
They are simply anti-abortion.
C. Judicial Review not Activism
Having identified how abortion implicates a woman’s freedom of speech, and why laws restricting
abortion violate the First Amendment, this part concludes by addressing the Fourteenth
Amendment Due Process connection between bakers and pregnant women, and why First
Amendment analysis reveals the defect of paying lip service to judicial review in both
circumstances. If judges must more carefully evaluate whether bakers should be free to deny their
services to same-sex couples, women should, at the very least, receive the same consideration
when it comes to bearing children.
In the years, if not months to come, the First Amendment may become the only provision of the
Constitution that requires, or allows, courts to consider whether laws restricting abortions restrict
a woman’s freedom no more than necessary to protect health and safety. Because the Supreme
Court’s decisions on reproductive freedom are based upon the Due Process Clause of the
Fourteenth Amendment, the Supreme Court may conclude that like freedom of contract, laws
interfering with a woman’s decision to carry a pregnancy to term are subject only to rational basis
review. Unless courts adopt the standard proposed by Justice Brennan in Fritz
238
or something
similar, laws restricting abortion, if not outlawing abortion, will be upheld under the “any
plausible” reason standard. Under this standard, the underlying purpose and its relationship to the
actual health and safety of mother and child become irrelevant. Instead, reality is replaced by any
plausible fiction fabricated by the government. As discussed in Part II.C., this is judicial
abdication, not judicial review.
With respect to reproductive freedom, the error of judicial abdication is compounded by the fact
that it only becomes the standard if the Supreme Court engages in judicial activism. States will
only be entitled to this level of deference if the Supreme Court overrules Roe and its progeny.
While it is certainly true that a Supreme Court decision can be wrong from the day it was decided,
overturning Roe necessitates rejecting almost fifty years of precedent during which, in the face of
constant and vocal criticism, Justices appointed by both parties consistently concluded that the
liberty guaranteed by the Constitution includes the liberty of a woman to decide whether to carry
237
Id.
238
See supra Part II.C.
43 CARDOZO L. REV. ___ 39
a pregnancy to term. As Justice O’Connor emphasized in Casey, the only honest explanation for
rejecting Roe is a surrender to political pressure.
239
In other words, if states are given the authority
to define life as beginning from conception or to exercise the police power under those
circumstances, regardless of the justification, it will not be because the Court is correcting an error
in legal reasoning, the bias of previous Justices, or because of changed circumstances; it will be
the result of a concerted political effort to pack the judiciary with judges who are more committed
to ending abortion than upholding the rule of law. To reach their desired outcome, they will not
follow precedent or rely upon the text of the Constitution which only refers to persons born or the
longstanding definition of state police power as protecting the interests of the public. Instead, they
must overturn precedent and argue that the terms used in the Constitution and understood over
centuries have been misunderstood and misapplied. They will then ignore the fact that being
capable of surviving outside of the womb is the only definition of a person that is not arbitrary.
Instead, they will adopt the highly disputed proposition that the power of state begins at the
moment of conception, and, perhaps with some exceptions, is superior to any interest of the
individuals actually affected. The Supreme Court must do all of this to give states the authority to
burden the freedom and lives of individuals to vindicate a theory of life that members of the public
do not share and do not want imposed upon themselves or others. After adopting all of these
disputed theories, Lochner will now be invoked to not only deny courts the authority to review
legislative decisions, but to impress them in the service of defending those decisions, no matter
how arbitrary or cruel.
There may someday be a future in which protecting life at conception is not where a state's power
begins and its obligations end. In this world, protecting fetal life might be a rational and reasonable
part of a comprehensive system that protects health and promotes the wellbeing of all its citizens,
not just their conception. In a world where the government takes sufficient responsibility for the
lives that it changes, requiring a woman to carry her pregnancy to term may be more than
symbolism. The pregnant woman and potential child would be more than living tributes to
someone else’s definition of life, but would be treated as human beings equally deserving of
dignity and respect as those who would fundamentally change their lives. If such a world were to
exist, prohibiting abortion as a means of protecting the health and safety of citizens would be less
arbitrary and more reasonable (even if still unconstitutional). But in the United States in 2021,
and for the foreseeable future, this is nothing more than fantasy. Unfortunately, if courts must
defend rather than evaluate whether a law is consistent with the freedom guaranteed by the U.S.
Constitution, then a fantasy will be all they need to ignore the reality that denying woman access
to safe abortions only serves to vindicate the moral and religious beliefs of abortion opponents by
imposing lifelong harm and hardship on women and children.
IV. Conclusion: A right by any other name …
239
Casey, 505 U.S. at 867 (“So to overrule under fire in the absence of the most compelling reason to
reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”).
Free Speech &
Abortion 40
“The beginning of wisdom is to call things by their right names.” - Confucius.
Following the lead of the current Justices of the Supreme Court, this essay evaluated the reasons
for renaming freedom of contract and reproductive freedom, freedom of “speech,” and what
wisdom it might provide. We learned that expression is sufficiently elastic to justify a closer
analysis of the claims of bakers and mothers. Moreover, understanding that expression is
implicated becomes a legitimate means of obtaining some semblance of judicial review. While
heightened review may not change the result, nor should it necessarily, it plays an important role
in ensuring that the principles of the Constitution, including the principle of judicial review are
upheld. If this is true for contracts, it is also true for abortion. Appreciating the symbolism and
messages involved in carrying a pregnancy to term, the essay demonstrated that laws prohibiting
abortion hijack women and children to serve as testament to the proposition that the unborn are
more important than the living, and demonstrate that beliefs of those opposed to abortion are more
important than the pain and suffering they inflict upon strangers. Unless courts are permitted or
even forced to explain how such a state of affairs is consistent with the justice and liberty
guaranteed by the Constitution, they will be unable to hide the evidence that forcing women to
carry a pregnancy to term imposes significant harm upon mother and child alike. All of this was
made possible by considering whether old problems should be given new names.
However, the story of bakers and mothers is as much about the freedom to determine when and
how we share our lives as it is about the messages we share. The baker’s real objection is not
being compelled to voice his support for same-sex marriage -- that was not what the law required;
the baker is objecting to being forced to do business with a same-sex couple getting married.
Likewise, while privacy laws may limit the information a party would like to use for expression
based upon what information represents, the primary purpose of privacy protection is to provide
individuals with some agency over when they will become the subject of surveillance. Likewise,
the pro-life movement behind efforts to restrict or outlaw abortion unquestionably wants to send
the message that life begins at conception and should be celebrated. But abortion is also a
disagreement over whether the pregnant woman is free to determine when, if ever, she will create
the most fundamental and intimate of associations and become a mother to a child. While these
cases have traditionally been considered under substantive due process, or as explored above,
under freedom of speech, the individual nature of those freedoms tends to overshadow the fact that
the decisions and consequences take place in relationships, not in isolation.
240
240
A full discussion of this topic is far beyond the scope of this essay, but in short, I believe that the power
of the government to regulate relationships is directly related to the consensual nature of the relationship,
how open those associations are to strangers, and the power they exercise or seek to exercise over those
outside of the association, and is predicated on the government’s authority to protect individual and group
autonomy from private as well as public power. Seana Shiffren and Lawrence Tribe have already sketched
more comprehensive theories of freedom of association beyond freedom of expression. See Shiffrin, supra
note 169 at 867-869 (grounding associational freedom in liberalism and the value of cooperative activity);
43 CARDOZO L. REV. ___ 41
While a woman’s decision to terminate a pregnancy clearly involves “her body, her choice,”
protection of individual and personal autonomy is only part of the story, and on its own allows
opponents to describe abortion as selfish and anti-family. Framing the pregnant woman’s liberty
interest as the freedom to determine “what’s best for me” does not capture or reflect the actual
reasons women seek abortions which have more to do with the relationships that will be created
or altered by a pregnancy. In the Turnaway Study, researchers found that the women in the study
overwhelmingly sought an abortion because they believed it was best for their existing children
and the potential child.
241
The women did not choose abortions flippantly or callously to have
more time to party for example, they chose abortion because they believed that they would not be
able to provide the resources and environment to safely raise a healthy child, or be ready for the
physical, mental, and emotional demands of good parenting.
242
Women were also concerned about
whether they would be raising the child on their own as poor relationships with men was cited as
a major reason for seeking an abortion as the relationships were already too fragile, toxic, or
abusive.
243
Unsurprisingly and unfortunately, as discussed in Part III.B, the women denied
abortions accurately predicted the hardships they and their children would face, and the study ends
with a plea to trust women.
Ultimately, it should not matter whether a woman’s freedom is labeled as privacy, speech, or
association. While the Constitution names certain freedoms, it protects liberty in general and
expressly rejects the proposition that only named freedoms are guaranteed.
244
Names only matter
because members of the Supreme Court use them to change the nature of judicial review. While
this approach may be useful shorthand, the Justices also use the labels they create to hide when
they are not defining the liberty of all, but rather mandating their own moral code. Even more
troubling is the fact that when Judges share the same moral code as legislators, they use names as
a justification to defend laws enacted based upon those shared beliefs even when they are arbitrary
or “sweep unnecessarily broadly and thereby invade the area of protected freedoms.”
245
With
respect to a woman’s freedom to determine whether to carry a pregnancy to term, we should not
be distracted by efforts to name the freedom or worry about what doctrinal box it should be
assigned to. The only constitutional issue is whether the government can force a woman to become
a mother when she believes, quite accurately, that it will be to the detriment of both her AND the
see Tribe, supra note 169 at 1941 (grounding associational freedom in Kantian terms). For more
“traditional” analysis of freedom of association see Thomas I. Emerson, Freedom of Association and
Freedom of Expression, 74 Y
ALE L.J. 1 (1964); Kenneth L. Karst, The Freedom of Intimate Association, 89
Y
ALE L.J. 624 (1980); Ashutosh Bhagwat, Associational Speech, 120 YALE L. J. 978 (2011).
241
TURNAWAY, supra note 193 at 35-42.
242
Id.
243
Id.
244
U.S. Const. Amend. 9 (“The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.”)
245
NAACP v. Alabama, 377 U. S. 288, 307 (1964).
Free Speech &
Abortion 42
child, and when those that would impose their judgment upon those women do so without taking
any responsibility for the consequences of their actions.
