Perspective: In furor over new Texas law, don’t forget the First Amendment

The white-hot battle over Texas’s new law restricting abortion generally is not seen as including First Amendment concerns — but it does and should.

The right to speak freely without fear of government punishment clearly is protected by the First Amendment. How can and should that be reconciled with the statute’s civil penalties for those persons simply providing information or counseling to women?

Enforcement and the First Amendment

Enforcement of the new law is commenced by private, not government, hands. The penalties provided involve civil lawsuits brought by private persons against virtually anyone connected with an abortion, not criminal laws enforced by authorities. When does such direct delegation of enforcement make any private citizen into a so-called “government actor,” no less regulated and deterred by the First Amendment than an elected officeholder or public employee?

As it happens, some supporters of the new Texas law made that very same “arm of the government” argument when the White House met with social media companies to push them to act against misinformation about COVID-19 vaccinations.

But some have proposed similarly empowering private citizens to sue anyone connected with the sale of a gun later used in a crime — even dealers who simply advertise or discuss the weapon later used by the customer in a criminal act. And others already are entertaining the idea that such strict enforcement is needed in education to rein in the teaching of ideas that the community determines are dangerous to society, if not immediately to students.

Neither of those proposals seems likely for the moment, but it is clear that all would involve state action — and therefore be ripe for First Amendment review, because the courts would be enforcing the underlying laws in a way that affects speech.

The right to associate surely must include the right to exchange information and opinion — for or against abortion — or that right becomes meaningless.

Religious freedom questions

Freedom of religion would also seem to be implicated: Fifty years of rancorous debate over abortion includes contention over a faith-based view of the sanctity of life, as defined in the U.S. by largely, but not exclusively, Christian values.

There’s already a lawsuit brought by several ministers who see the new law placing them at risk for providing religious counseling to women who may later decide to have an abortion.

In a report by the Religion News Service about the lawsuit, the Rev. Amelia Fulbright, pastor of the Congregational Church of Austin, says the new law infringes on her religious freedom:

“The thought that if someone found out I even had a conversation with someone that ultimately chose an abortion and then they can sue me, to me, it violates my religious freedom as a pastor,” Fulbright said. “It violates the autonomy of the person I’m counseling. It just feels like a real invasion of that sacred pastor-parishioner kind of relationship.”

Another tack taken in the name of religious freedom was the basis for a letter from the Massachusetts-based Satanic Temple, which Houston’s KHOU-11 news station reported Monday was sent Aug. 31 to the U.S. Food and Drug Administration (FDA). The group told the FDA its members have a right to access abortion pills that is protected by the Religious Freedom Restoration Act (RFRA), a long-standing law that provides for strict review of government actions that “substantially burden a person’s exercise of religion.”

The Temple is not a mainstream religious group. But its RFRA argument demonstrates concerns about the extent to which the broadly written Texas law — and similar legislation being proposed in other states — intrudes on personal decisions involving religious beliefs.

It may be impossible, given the passions around the issue, to step back immediately to consider the new law’s impact beyond its challenge to Roe v. Wade.

But the dispute shows every indication of at least a secondary impact on several of our core freedoms — and that deserves our full attention sooner than later.

By Gene Policinski, Freedom Forum Senior Fellow for the First Amendment. You can reach Gene Policinski at [email protected].

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