On November 7, 2007 the Oakland (California) City Council voted to approve an ordinance that would require people who try to counsel men and women entering abortion clinics to keep at least eight feet away. A final vote on the ordinance is scheduled for December 4.

For offenders who come closer than 8 feet in order to, say…hand a piece of literature to someone, they face penalties of up to a year in county jail and fines of up to $2,000. The effect of the ordinance is the suppression of efforts to assist women in choosing life over death for their children by abortion. Specifically, apart from the fact that it thwarts efforts to save a child, the ordinance radically interferes with the speech rights of those who advocate for the right to life. So where is the ACLU? Is the violation of speech and expressive activity no longer what the ACLU is about?

The ordinance made convenient use of the terminology found in the federal legislation, euphemistically entitled the Freedom of Access to Clinic Entrance (FACE) law, which prohibits blocking access by "interference, intimidation, or harassment." That legislation was passed in 1995. The accompanying heavy penalties and elastic language, which can be stretched to catch anybody for offering a piece of literature to a passerby, has resulted in the virtual shut down of speech outside of abortion clinics throughout the land. What fun for a pro-abortion judge! How might he choose to interpret "harass" or "interfere" or "intimidate"? Shall we count the ways?

But if the federal government had not gone far enough it its suppression of speech near abortion clinics, Oakland, just across the bay from San Francisco, the so called speech capital of the country, went even further. How can this be? And, again, where is the ACLU?

We have a hunch.

The doctrine known as "Right to abortion" is more important to the ACLU than speech when the two are at odds.   William Donohue has pointed out handily in his Twilight of Liberty (Transaction Publishers, 1994) the priority given to the ACLU's Reproductive Freedom Project over its Capital Punishment Project, for example.

          Their official policy today (#239) is that"contemporary ideas of the significance of human life make imposition of the death penalty cruel an unusual punishment, which is prohibited by the Constitution" (p. 291).  Moreover, "Children's Rights" (policy #272) declares: "Under no circumstances should a juvenile ever be subject to the death penalty." But this principle was brought into conflict with abortion when the arguments for juvenile abortion rights were faced against arguments for the life of juvenile capital offenders.  

Donohue reports as follows:

 "This dilemma came to a head in 1988 in a brief the ACLU drafted in behalf of William Wayne Thompson, a Death Row candidate who committed murder at age 15.  The ACLU brief, written by Henry Schwarzschild  of the Union's Capital Punishment Project, maintained that juveniles do not have the same mental and moral development as adults.  Due to the "diminished capacity of juveniles, Schwarzchild said, they should be exempted from the death penalty. But the brief was never filed because of opposition from Janet Benshoof, head of the ACLU's Reproductive Freedom Project.

"Benshoof knew what the stakes were: ‘Schwarzchild argues that teens have the incapacity to make moral, even rational decisions.  In order to oppose abortion, he forces me to favor the hanging of teenagers'" (p. 292).

Why?  Because advocacy for the right of teenage girls to get their children aborted depended upon the contrary argument; to wit, teenagersdo have the mental and moral capacity to make their own decisions regarding abortion.  

What was the ACLU to do? 

The ACLU bosses must have said something like this: "Sorry, Willy.  You gonna die. The right of the teenage girl to get that abortion is more important than sparing you teenage kids from the death penalty.  We have our priorities."

Or, as noted columnist and ACLU board member Nat Henthoff put it,"the ACLU's hatred of the death penalty was made subservient to abortion" (Ibid.)

The ACLU, putatively the premiere defender of free speech, has demonstrated a clear departure from its radical support of any kind of speech when it comes to abortion.   Just as it places the right to abort over the life of a juvenile capital criminal, it places the same right to abort over the right to free speech.

The ACLU scraps the very Bill of Right which it claims to defend. The Constitution permits no "right to abort" and contains no "right to privacy." But it does explicitly prohibit the federal government from interfering with speech rights established by the states. ACLU defends what the Constitution opposes and opposes what the Constitution defends. In the name of protecting an unconstitutional "right to abort" a child, the ACLU refuses to protect those whose right to speak out against abortion (and offer literature to women seeking the same) is egregiously violated.   Where is the ACLU when you really need them?