The opinion is 55 pages long, and much of it involves a tedious argument over the certification of a class (abortion providers) that involved the sort of legal minutiae that made law school unbearable. I was in court on July 6, the day the case was argued, and anyone who listened to Judge Sparks should have known that he was not going to find for the state. The reason was not bias, or premeditation, as Senator Patrick suggests in his press release. It was that Judge Sparks made several references to the vagueness of the statute in open court. The state had no answer for this. The second reason why the state was in a losing position is that the statute mandated speech that was required of doctors. There is no freedom of speech when speech is mandated by law. To compel speech violates the First Amendment, and to compel listening to speech, as women would have to do, does so as well. That was the second fatal weakness of the state’s case. We will hear a lot of nonsense in the coming days about judicial activism, but the simple fact is that the state overstepped its bounds when it compelled speech by doctors to achieve a political purpose.
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