Gruesome Abortion Images



 CBN News coverage summarizes the lawsuit below:

Oblique_facade_2,_US_Supreme_CourtWashington, D.C., March 6, 2013 –On March 4th, Chicago’s Thomas More Society petitioned the U.S. Supreme Court to review and overturn a Colorado state court decree barring Denver pro-lifers from “displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services…at plaintiff church.”  The church, Denver’s St. John’s Church in the Wilderness, was picketed  several years ago by Ken Scott, Clifton Powell, and others during an outdoor Palm Sunday procession for having “go[ne] astray from the original teachings of the Bible” and for “supporting abortion.”

The “gruesome images” ban was entered in a lawsuit for private nuisance and civil conspiracy filed by the church after Scott and Powell held graphic signs featuring photos of aborted human beings on a public sidewalk across the street from the outdoor procession.  This upset parishioners – including children – as they processed on the opposite sidewalk.  Scott and Powell had given prior notice of their protest, and they did not enter the church, go onto church property, or disturb the services inside the church where their protest couldn’t be heard.  No violence, trespass, physical obstruction, or criminal conduct occurred.  Police were present, and neither Scott, nor Powell, nor any other protester was cited for any noise or other law violation.

Despite recognizing that the “gruesome images” ban was a content-based restriction on speech, the Colorado’s Appellate Court upheld it as “narrowly tailored” to serve a “compelling government interest,” namely, “protecting children from exposure to certain images of aborted fetuses and dead bodies.”  Colorado’s Supreme Court denied review, but Chief Justice Michael Bender and Associate Justice Allison Eid dissented.

Thomas More Society retained Professor Eugene Volokh of UCLA Law School, a widely acclaimed, prolific 1st Amendment legal scholar and author, who famously blogs as founder of the “Volokh Conspiracy,” to draft the petition for review by the U.S. Supreme Court.  The CEO of the pro-life National Lawyers Association, Rebecca Messall, of Englewood, Colorado, and Thomas More Society staff counsel, Tom Brejcha, Peter Breen, and Jocelyn Floyd, assisted.

The petition for review argues the “gruesome images” ban silences speech that is critical to the pro-life message as “pictures … convey messages in ways that words cannot equal.”  Indeed, even pro-abortion Prof. Lawrence Tribe of Harvard Law School recognized that too often “the life of the fetus becomes an…invisible abstraction” (Abortion: The Clash of Absolutes, p. 5 (1980)). Indeed, “[f]etuses are invisible while…developing in the womb, and they are generally disposed of quickly after an abortion, so they remain unseen even then,” even though the “brutality and inhumanity of abortion” requires “show[ing] exactly what the abortion produces.”  Similarly, photos of lynching victims made “visceral what one dares not imagine.”


For example, when Chicago teenager Emmett Till was killed in summer, 1955, while visiting relatives in the South, his mother insisted on displaying his mutilated body in an open coffin, photos of which were widely circulated in Jet magazine and other media.  The photos ignited nationwide outrage, later credited for sparking the civil rights movement.  Thus Rosa Parks – whose arrest led to the Montgomery, Alabama bus boycott and the emergence of Dr. M.L. King – was quoted as having said that she didn’t go to the back of the bus when threatened with arrest because “she thought of Emmett Till and then she couldn’t go to the back” (see, M. Till-Mobley, Death of Innocence:  The Story Of The Hate Crime That Changed America, Foreword by Rev. Jesse Jackson, p. xii (2003)).

Photos of Holocaust victims “similarly helped show the evil of Nazism in ways words could not easily convey.”  Other examples cited in the Petition include photos of a Buddhist monk immolating himself in Vietnam, a napalmed Vietnamese girl running in terror along a highway, and a terrorist being shot by a general – all of which impacted national policy on the Vietnam War.  More recently, Time magazine’s cover boldly depicted the brutal disfigurement of an Afghan woman – a controversial step defended by Time’s editor who said he “would rather confront readers with the Taliban’s treatment of women than ignore it.”

Yet, the Petition argues, lower courts have been sharply divided in many cases turning on questions whether, and to what extent, content-based restrictions on disturbing visual (or verbal) political imagery may be imposed in public places in order to shield children’s sensibilities.   Both the 6th and 9th Circuits have held such displays clothed with 1st Amendment protection, and Supreme Court precedents implicitly concur.  But the 8th Circuit, the Washington Supreme Court, the Wyoming Supreme Court, and now the Colorado courts all disagree.  Moreover, the Petition cites a host of other lower state court decisions that have grappled with these issues in California, Ohio, Wisconsin, Kentucky, South Carolina, Oregon, Oklahoma, as well as federal decisions in the 10th and 3rd Circuits and in Maryland, showing – as Thomas More Society’s experience confirms – that these issues arise recurrently and that lower courts need guidance.

In especially hard-hitting sections, Professor Volokh argues in the Petition that minors who are now getting pregnant, or impregnating their girlfriends, at very young ages should be able to see and hear – in its most convincing forms – political, moral, and religious speech so “directly relevant to their lives” (citing statistics that in 2006 girls age 14 or younger had over 6,000 abortions).  Also, if an exception to free speech protection were carved out for churches or wherever children were present, it could not be limited in any principled or coherent way.

Tom Brejcha, president and chief counsel of Thomas More Society, said, “We are very hopeful that the Supreme Court will hear our appeal and put an end to such persistent efforts by government officials to wield the censor’s scissors to suppress vital pro-life speech.  Photos are anathema to pro-abortion advocates because they expose the grim truth that abortion is both repulsive and grisly.  If America insists on abortion rights, it must face up to these ugly results.”

A copy of the petition can be found here.

June 10, 2013, Thomas More Society’s petition for review of the Colorado Court of Appeals decision, which the Colorado Supreme Court refused to reconsider (with its Chief Justice and another Justice dissenting) was denied by the U.S. Supreme Court.  The Supreme Court Justices gave no reason for refusing to hear the appeal.  The precedential impact of the courts’ content-based ban on graphic images remains to be seen.  If it’s at all significant, the Society remains poised and committed to take the issue up on appeal, and if need be, up to the U.S. Supreme Court once again!

This Case: Gruesome Abortion Images