Has the Supreme Court given a green light to censors?
Does the Supreme Court's recent decision, in the Webster v. Reproductive Health Services case upholding the Missouri anti-abortion statutes, have a direct impact on libraries by encouraging a new wave of state-sponsored "fiscal" censorship? The statutes' provisions against "encouraging or counseling" a woman to have an abortion might be interpreted as prohibiting the full range of library service, including referral services, as they relate to abortion. Although Missouri Attorney General William L. Webster has tried to downplay the freedom of speech issue, the American Library Association filed an Amicus brief in the case, asking that the court look at the impact of the Missouri abortion law on intellectual freedom. According to Anne Levinson of ALA's Office for Intellectual Freedom, the court's response was Justice Sandra Day O'Connor's statement that this issue could only be addressed on a case-by-case basis by the Missouri Supreme Court.
In the wake of the Webster decision, there has been a great deal of speculation about which state legislatures will vote to restrict access to abortion. There is, however, an aspect to Webster that has not been explored in the press: how Chief Justice William H. Rehnquist's decision - described by Justice Harry A. Blackmun as giving "winks, and nods, and knowing glances" to state legislators who want to restrict access to abortion - affects not just abortion, but information about birth control, human sexuality, and any other unpopular or controversial subjects legislators might find objectionable. Legislators need only define the dissemination of this information as "contrary to the public interest" in order to cut off funding for any state-supported agency that has traditionally provided this information. In his decision, Rehnquist maintained that the state is only making a "value judgment" and "policy choice" in deciding how to spend its funds.
In Missouri, a law is already on the books that makes it "unlawful for any public funds to be expended ... for the purpose of encouraging or counselling a woman to have an abortion not necessary to save her life" (Mo. Rev. Stat. 188.205 ). Thus far the state has focused its attention on hospitals and clinics. However, as the district court that ruled it unconstitutional has already pointed out, this statute could easily be interpreted as applying to any person paid from state funds or any state-funded institution, which includes public libraries, state university libraries, private libraries that receive any form of public support, public schools and any state agency that employs a nurse, psychiatrist, counselor, or social worker. ALA and the Freedom to Read Foundation based their Amicus brief on the fact that librarians are "potentially subject to viewpoint-based restrictions on the use of public funds."
Because of the way the courts have handled statute 188.205, the question of how to interpret "encouraging or counselling" now rests with the Supreme Court of Missouri. However, the definition of "public funds" is clearly defined in Missouri abortion statute 188.200 as "any funds received or controlled by this state or any agency or political subdivision thereof, including, but not limited to, funds derived from federal, state, or local taxes, gifts or grants from any source - public or private, federal grants or payments, or intergovernmental transfers." This statute may yet be found to be unconstitutional in the way it is applied; but because the courts have been unable to protect the doctor/patient relationship from legislative mandates and controls, it is unlikely that the librarian/patron relationship would be protected.
Expanded prohibitions pending
To make matters worse, the Missouri legislature is currently working on legislation, patterned on its anti-abortion statutes, that will expand these prohibitions. In addition to prohibiting "encouraging or counselling" a woman to have an abortion, the new law would forbid the dissemination of any information about contraception or human sexuality. …