A Colorado court’s decision that revealing the truth about abortion – through images of the results of the violent procedures – can be banned is being challenged before the U.S. Supreme Court by pro-life advocates who charge that such content-based restrictions are unconstitutional.

The case is being presented to the high court by officials with the Thomas More Society, who have engaged Professor Eugene Volokh of UCLA’s law school, a widely acclaimed, prolific First Amendment legal scholar and author, to take the lead.

Volokh, who blogs at the Volokh Conspiracy, drafted the petition for certiorari which was filed with the U.S. Supreme Court this week.

At issue are graphic images that the abortion opponents have displayed to try to convince observers that abortion is not a good thing.

A Colorado appeals court said the images would have to be censored, and the state Supreme Court refused to take the case. But that, according to the filing, means that a “content-based” restriction, acknowledged as such even by the court, is law in Colorado.

“And it does not enjoy the support of a single Supreme Court precedent involving political speech on any other subject,” the brief explains.

Pro-life advocates Ken Scott, Clifton Powell and others led a pro-life witness outside Denver’s St. John’s Church in the Wilderness several years ago. The church sued and obtained the court’s ban on “gruesome images.”

“Scott and Powell had given the cathedral prior notice of their planned protest. They did not enter the church, go onto church property, or disturb the services inside the church, from where their activity was not audible. No violence, trespass, physical obstruction, or criminal conduct occurred. Police were present, and neither Scott, Powell, or any other protester was cited for noise or other law violations,” according to the legal team.

The petition for review argues that the “gruesome images” ban silences speech that is critical to the pro-life message, as “pictures…convey messages in ways that words cannot equal.”

The legal team said, “Indeed, even pro-abortion Professor Lawrence Tribe of Harvard Law School recognized that too often ‘the life of the fetus becomes an…invisible abstraction.’ Indeed, ‘fetuses 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.'”

The brief argues that equally graphic images of Nazi concentration camp victims stirred a world to anger, those images of lynchings raised an outrage against the KKK, and images of war dead brought about America’s departure from Vietnam.

“We are 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 gruesome,” said Tom Brejcha, president and chief counsel of the Thomas More Society.

“If America insists on abortion rights, it must face up to these ugly results,” he said.

The brief has been posted online.


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