“The context in this case includes Wichita’s past history of violence against abortion providers, the culmination of this violence in Dr. Tiller’s murder less than two years before defendant mailed her letter, defendant’s publicized friendship with Dr. Tiller’s killer, and her reported admiration of his convictions,” McKay wrote.
Senior Judge Bobby Ray Baldock, writing in dissent, looked to a different context. “To be sure, Dillard did herself no favors with her acrimonious rhetoric. That said, the key statement—that ‘maybe today is the day someone places an explosive under [your car]’—is smack in the middle of a large, impersonal paragraph listing a dozen or so ‘consequences’ that will occur if Dr. Means ever performs abortions,” Baldock wrote. Dillard, for instance, said “dismembered babies” will haunt Means’ dreams.
“Is Dillard objectively threatening to haunt Dr. Means in her sleep, à la Freddy Krueger, with visions of aborted children? Of course not,” Baldock wrote. “She is just predicting what she thinks Dr. Means’ own brain may do to her, presumably trying to frighten her out of providing abortions. This is not illegal.”
Speaking to the NLJ on Wednesday, Theresa Sidebotham, Dillard’s lawyer, said: “We feel confident that if we do take Ms. Dillard’s case to a jury, then the jury will agree with the trial court, the FBI, and Judge Baldock in dissent.” Sidebotham has not yet determined whether to challenge the Tenth Circuit decision.
Last year the U.S. Supreme Court cited the FACE Act and similar laws in “some dozen other” states as alternatives to the Massachusetts buffer zone law that the justices ruled unconstitutional in McCullen v. Coakley.
Taking exception to the citation and to a favorable mention of New York’s buffer zone law, Justice Antonin Scalia, in a concurring opinion joined by Justices Anthony Kennedy, Clarence Thomas and Samuel Alito Jr., wrote, “it is wrong for the court to give its approval to such legislation without benefit of briefing and argument.”
Chief Justice John Roberts Jr. responded to the charge in a footnote of his controlling opinion. “We do not ‘give [our] approval’ to this or any of the other alternatives we discuss. … Whether such a law would pass constitutional muster would depend on a number of other factors,” Roberts wrote for himself and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
